High Court paves way for release of Whitlam dismissal papers

The High Court has cleared the way for the release of hundreds of previously private documents that experts hope will shed light on the monarchy's role in the Whitlam dismissal, after finding that letters between the Queen and the former governor-general Sir John Kerr are public records.

Known as the Palace Papers, the 211 documents contain 116 letters from Sir John and 95 from the Queen, largely written by the private secretaries of each from August 1975 to December 1977.

The majority of them were written in the months before and after the dismissal.

"This is a simply staggering number compared to the general expectation at that time that governors-general report quarterly to the monarch," political historian Jenny Hocking, who first requested access to the documents in 2016, said.

The papers also contain telegrams and news articles that were attached to some letters.

The National Archives of Australia rejected Professor Hocking's application on the basis the correspondence was "private", meaning it was personal rather than official in nature – a decision the Federal Court later upheld, sparking a four-year legal battle.

While official Commonwealth documents must be released after 30 years, the categorisation of the correspondence as "private papers" meant they were instead embargoed by the Queen until 2027, with her private secretary able to veto any eventual release.

The National Archives was ordered on Friday to reconsider Professor Hocking's request after the High Court found the papers were Commonwealth documents.

Tumultuous period

Professor Hocking has called for the documents' immediate release, believing they may shed light on one of the most tumultuous periods in Australian political and constitutional history.

Earlier work by the academic, which relied on material from the UK National Archives, showed the previously unknown role that High Court Justice Sir Anthony Mason and Malcolm Fraser might have played in the dismissal.

"This is a victory for the historical record, for transparency, and for the accountability of those at the highest levels of public office," Professor Hocking said after the High Court ruling.

She said the judgment "emphatically rejected" a long-standing practice of keeping the Queen's correspondence with governors-general private despite its public or historic importance.

"It is astonishing and has been demeaning to Australia as an independent nation that access to the Queen’s correspondence with Australian governors-general has been controlled by the Queen.

"Today’s historic decision has ended decades of residual British control over Australian archival material, kept from us in the name of the Queen through the exercise of an alleged royal veto which the High Court has today overturned."

National Archives director-general David Fricker said the institution accepted the High Court decision and would start examining the documents ahead of their release.

"The National Archives is a pro-disclosure organisation. We operate on the basis that a Commonwealth record should be made publicly available, unless there is a specific and compelling need to withhold it," he said.

Commonwealth 'property'

The High Court decision turned on the definition of "property" in the Archives Act to determine whether the papers belonged to Sir John personally or to the official role of governor-general.

The fact that an official of that established role first kept and then deposited the papers in the archives showed that custody of the documents lay with that office, according to the majority judgment by Chief Justice Susan Kiefel and Justices Virginia Bell, Stephen Gageler and Patrick Keane.

The "nature and significance of the correspondence was such" that it was "only to be expected" that it would be treated as official documentation, the judgment read.

"With respect to the majority in the Full [Federal] Court, we cannot see how the correspondence could appropriately be described, however 'loosely', as 'private or personal records of the governor-general' even allowing for the ambiguity of the description of 'private or personal'."

Justices Michelle Gordon and James Edelman reached the same conclusion in individual judgments.

Justice Geoffrey Nettle dissented, saying the governor-general was neither the Commonwealth nor a Commonwealth institution and as such the records were private.

The National Archives, which has faced repeated budget cuts under the Coalition, was also ordered to pay Professor Hocking's costs for the million-dollar legal fight.