High Court victory puts keepers of secrets on notice

On February 4, official Whitlam biographer Professor Jenny Hocking strode up the brutalist slope of the High Court entryway, towards its foreboding glass wall entrance. I struggled to keep up with her, which – given her slight stature – speaks to the steely focus and determination she has shown in her long and risky fight to uncover the truth and to document and share our political history.

Yesterday, Professor Hocking made history herself. If it wasn’t for her dogged pursuit, the correspondence between Sir John Kerr and Buckingham Palace regarding Gough Whitlam’s dismissal would have had no chance of being unearthed from the vaults of the National Archives.

In a historic judgment, the High Court decided 6-1 in Professor Hocking’s favour.

Professor Hocking has achieved two important victories. She has paved the way for secret letters, embargoed by the Queen, to be released. These letters could reveal what happened in the lead up to the Whitlam dismissal, a subject that is still shrouded in secrecy and intrigue 45 years later. But more than this, Professor Hocking has also achieved an outcome with potentially wide-ranging implications that should put all Commonwealth officials on notice about their responsibility to be transparent about Australian political and democratic history.

So, what are these letters? Another set of correspondence released by National Archives last year, thanks to Professor Hocking’s tireless work, dramatically revealed that the Queen’s private secretary Sir Martin Charteris and the then governor-general Sir John Kerr were in secret contact prior to the dismissal. Not only did they keep these exchanges hidden from Prime Minister Gough Whitlam, they agreed to avoid public scrutiny of their contents by omitting them from Kerr’s memoirs entirely.

Sir John Kerr even provided the Palace, at its request, with a draft of his memoirs that documented his version of the dismissal. The comments provided by the Palace on the manuscript have been redacted and remain secret. However, it’s clear that it provided input and – at a minimum - acquiesced with Sir John’s draft.

In writing to the Palace about its comments on his manuscript, Sir John Kerr said, "I did my very best, of course, to omit any reference to the exchanges between Martin Charteris and myself; it is particularly gratifying to me to know that the result is satisfactory."

Hopefully, we won’t have to wonder what that means for too much longer.

For Professor Hocking, this is the end of an epic six-year-long legal battle to access historical materials about one of the most controversial periods of our political history. She was up against a formidable opponent. The National Archives of Australia, an institution headed by ex-ASIO chief information officer David Fricker and, in the final stage, the Attorney-General’s Department.

Nonetheless, the majority of the High Court found, in what can be seen as a victory for common sense, that “with respect to the majority in the Full 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’".

The High Court ordered the National Archives to reconsider Professor Hocking’s application for access to the Palace Letters. It will be a difficult request to deny.

Yesterday Professor Hocking said that she expected the National Archives to have the letters ready for her to access next week. In her words, they’ve had nearly a decade to prepare. It should go without saying that Professor Hocking ought to be the first to receive access to the letters if and when they are finally released.

Professor Hocking’s meticulous care for our history is not only apparent in the fact that she pursued this case, but her recognition of this case itself as a moment in history. Throughout the hearings she sat quietly, dutifully taking notes and observing each justice in a broader political study of our every arm of democracy at work.

The National Archives’ almost decade-long refusal to release this information has occurred in the context of a broader clampdown on freedom of access to information in Australia. Last year, we saw the Australian Federal Police raid the home of NewsCorp journalist Annika Smethurst and the ABC headquarters. We’ve also seen an increasing pattern of the government shirking its responsibilities under the Freedom of Information Act, and refusing to answer the questions of parliamentary committees.

Australians have a right to know what happened in 1975 and to know what happens in our name today, and Professor Hocking might have just made that possible.

Isabelle Reinecke is the founder and executive-director of Grata Fund, based at UNSW Law, which provides backing to get public interest cases to court.