High Court ruling favours release of 'Palace Papers' on Whitlam Dismissal

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The High Court has ruled that hundreds of letters between the Queen and former governor-general Sir John Kerr before the dismissal of the Whitlam government are public records, paving the way for the release of the potentially explosive documents.

Professor Jenny Hocking, a political historian who has written extensively on Labor figures including former prime minister Gough Whitlam and his attorney-general Lionel Murphy, fought for a decade for access to the letters to help shed light on what Buckingham Palace knew before the dismissal in November 1975.

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Professor Jenny Hocking, with a statue of Queen Victoria behind her, took her fight for the release of the 211 'Palace Papers' letters to the High Court.Credit: AAP

Her fight included a three-and-a-half-year, million-dollar legal battle with the National Archives, which insisted the letters were "personal" records that sat outside a statutory regime providing for the release of Commonwealth records after 30 years.

Classifying the 211 letters as personal rather than Commonwealth records meant they were embargoed until at least 2027, and the Queen holds a final veto over their release.

The correspondence also includes letters between Sir John and the Queen's private secretary, as well as Prince Charles.

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Gough Whitlam, pictured in 1972, established the predecessor to the National Archives. Historian Jenny Hocking has long been seeking papers relating to his dismissal from office.Credit: George Lipman

Professor Hocking brought the first legal challenge to access the documents in October 2016. She lost that round in the Federal Court in March 2018 and appealed to the Full Court of the Federal Court, which dismissed her appeal in February last year by a majority of two judges to one.

The High Court granted special leave to appeal against the Full Court's decision in August last year.

In a decision on Friday, a majority of the High Court ruled the letters were Commonwealth records.

The decision compels the National Archives to reconsider Professor Hocking's request for access to
the documents.

Professor Hocking is calling on National Archives to release the letters immediately. It may still be able to argue an exemption applies under the Archives Act to keep the documents secret, but this is considered relatively unlikely.

"We have faced a formidable institutional force in seeking access to the Palace letters from the National Archives of Australia, even more so with the involvement of the Attorney-General’s department at this final appeal," Professor Hocking wrote earlier this year.

"The federal Attorney-General joined the Archives in the High Court appeal in claiming that the correspondence between the Queen and the Governor-General is personal to and the property of Sir John Kerr and closed to the Australian public, apparently according to the conditions set by Kerr himself."

Professor Hocking's barrister, Bret Walker, SC, told the High Court last year it was "absurd" to suggest the letters were not the property of the Commonwealth as they were written by Sir John in his official capacity as governor-general.

Mr Walker suggested a potential distinction between official letters and a "Christmas card to someone in the Windsor family".

But Tom Howe, QC, for the National Archives, said it had long been accepted that documents of the kind in question in the case were personal and subject to a "different open access period".

The National Archives has been contacted for comment. It was ordered to pay Professor Hocking's costs of the entire legal dispute, from the first court case to the High Court appeal.

More to come.