By Dr George Venturini
On 22 October 2016, while the case was before Justice Griffiths, Professor Hocking wrote again about her case: The National Archives of Australia is refusing to release secret letters between Kerr and the Queen, claiming that they are ‘private’ and not official Commonwealth records. The Palace letters are embargoed until at least 2027, with the Queen’s private secretary holding a final veto over their release even after that date. It is entirely possible that they will never be released.”
This is why – she explained – she had launched an action against the National Archives of Australia in the Federal Court, calling for the release of the Palace letters.
A team of senior lawyers, working on a pro bono basis, was leading the landmark case, in an action which remained the only avenue available to interested Australians to secure the release of ‘the Palace letters’, the final piece in the puzzle of the hidden history of the dismissal.
There followed a plaintive lament: that the letters remain secret “… is wrong. It should not be for the Queen to decide when we can know and have access to critical documents in our own history. We all deserve to know the truth of the dismissal and what really happened at that time.” (J. Hocking, The Palace letters, 22 October 2016).
Questions could be asked: What is the ultimate nature of the relationship between Australia and the Queen? To what extent, subject to a doubtful nature of that relationship, could anyone say that those documents are part of “our” – meaning Australia’s – ‘history” as if it were an independent country, totally uncompromised by the relationship with the English crown established at the time invasion?
The complainant view is nothing but a petitio principii, in other words: a form of fallacious reasoning in which the conclusion has been assumed in the premises, what is plainly called begging the question.
It really does not matter how often it is said that Australians should own their own history; that the decision to withhold the correspondence between the Queen and the Governor-General prevents them all from knowing the full story of the dismissal of the Whitlam government.
It would not take a furious moron – a large choir, perhaps? – to fight back with a: “Who cares?”
Five weeks into the case, Professor Hocking returned to the issue as “A matter of [Australian] national history.” What she found important is that “the release of the Palace letters will now be determined by an Australian court and according to Australian law – and not by the Queen, ‘a foreign monarch’ in the words of [then] Prime Minister Malcolm Turnbull.”
In the view of the writer this was “a dramatic development, a reassertion of Australian sovereignty over these critical documents in our history, despite long-standing claims of Royal control.”
In addition to the support of a team of lawyers working on a pro bono basis an important crowd funding campaign had been launched to raise funds to provide some protection against the possibility of an adverse cost order. [https://chuffed.org/project/release-the-palace-letters]. The response to the campaign had been exceptional and had already reached the half-way mark in the target.”( J. Hocking, The Palace Letters Case: ‘A Matter of our National History’, 29 November 2016).
The ‘Palace letters’ case would, in the words of Professor Hocking, “[bring] to light a lingering relic of colonialism few knew existed – the correspondence between the British monarch and the Governor General – which is closely guarded as a post-colonial Royal privilege and kept secret even from the Australian Prime Minister.” The discovery of such surviving ‘relic of colonialism’ and ‘continued existence of this arcane imperial political presumption is astounding and completely at odds with a modern parliamentary democracy.’ It was urgently hoped that “the ‘Palace letters’ case would end this colonial exemplar of Royal secrecy once and for all, by ensuring that the public access provisions of the Archives Act are applied to all official records, including the letters between the Queen and the Governor General. For the first time since federation, this correspondence will no longer be controlled by the British monarch and will be brought under existing Australian law, to be released after 30 years in accordance with the Archives Act if they are found to be official, not personal, records.”
It was correctly observed that “the implications of this case are considerable and go beyond the immediate issue of access to secret material relating to the dismissal of the Whitlam government, important though that clearly is.”
“In fact, the Palace letters case raised fundamental and broader issues of Royal secrecy in a parliamentary democracy, in particular of the practice of members of the Royal family in the United Kingdom to engage in secret communications with government about political matters to which the public is denied access. This has been the focus of recent concern in the United Kingdom, where the similar designation of documents in the Royal archives as ‘personal’ and ‘private’ has long ensured their protection from public view. [http://www.thetimes.co.uk/article/mi5-shared-its-secrets-now-the-royals-must-9t8j9595l]”
Yes, all this eminently desirable and logic. But were there not assumptions?
Professor Hocking repeated her claim that “The palace treats Australia as the colonial child not to be trusted with knowledge of its own history” in an article published on 7 September 2017.
These letters, between the governor general and the Queen, her private secretary and Prince Charles, in the weeks before the dismissal are held by our National Archives in Canberra – not for access by us, but for protection from us. Unlike commonwealth records which are open after 30 years, the palace letters have been designated “personal” records and on the instructions of the Queen they are embargoed until at least 2027 with her private secretary retaining a veto even after that date. This is a concerning situation for an independent nation, one made even more so by the passage of time. It is now more than 40 years since the dismissal of the Whitlam government and the palace continues to treat us as the recalcitrant colonial child, not to be trusted with such a dangerous thing as knowledge of our own history.
There is no doubt that these letters are of the greatest historical significance. We know this from extracts of six of the palace letters which I identified among Kerr’s papers in the archives, and also from a rare glimpse into Kerr’s communications with the Queen’s private secretary, Sir Martin Charteris, detailed by Kerr in his 1980 journal. Kerr refers there to “Charteris’ advice to me on dismissal” and to his communications with Charteris about his concern that he himself could be dismissed – that Whitlam might recall him should he become aware that Kerr was secretly considering dismissing him as prime minister.
Kerr’s records show that he had also confided to Prince Charles in September 1975, one month before supply was blocked in the Senate, that he was considering dismissing Whitlam and was therefore concerned for his own position. Charles duly relayed this to Charteris, while expressing dismay at the prospect – not of Whitlam’s dismissal, but of Kerr’s possible recall – telling Kerr: “Bur surely Sir John, the Queen should not have to accept advice that you should be recalled … should this happen when you were considering having to dismiss the government.” According to Kerr’s records, Charteris then wrote to Kerr in early October, reassuring him that if “the contingency to which you refer” should arise and if Whitlam moved to recall him as governor general, then the palace would “delay things”.
This communication from the Queen’s private secretary to the governor general, secret from the prime minister, is politically and constitutionally shocking. It reveals the palace to be in deep intrigue with Kerr to protect his tenure as governor general in the weeks before the dismissal, unknown to the prime minister who alone is responsible for advising the Queen on the choice of governor general. (J. Hocking, The palace treats Australia as the colonial child not to be trusted with knowledge of its own history, 7 September 2017).
One of the most remarkable outcomes of these proceedings is that it has secured the release by Buckingham Palace of two ‘personal’ letters between Kerr and the Queen’s private secretary written in 1976, in a rather counter-intuitive effort to support its claim that the ‘Palace letters’ are validly designated personal and should remain closed. The selective release of some apparently personal letters by Buckingham Palace draws into serious question its use of the label ‘personal’ in general for all correspondence between the Queen and the Governor-General, regardless of content. It does not appear to have occurred to either the Palace or their emissaries that such a ready breach of the label ‘personal’ only highlights its inappropriate use when it can be so readily overturned if deemed to suit its purposes.
The case has also shown a rare light on the inner workings of the office of Governor-General and the colonial presumptions underpinning it, much of which would shock those who believe that even as a Constitutional monarchy we have long since been freed of the residual colonial ties. Quasi-colonial servility is alive and well in Yarralumla. The mere fact that the Queen can still prevent us from seeing her correspondence with the Governor-General, highlights the vice-regal relationship as one of the few remaining ‘colonial relics’ with lasting impact on Australian governance and history.
In summing up Professor Hocking’s case that the Palace letters are Commonwealth records, Mr. Antony Whitlam QC, pointed to the extraordinary corollary of the Archives’ claim that the Palace letters are personal and are not owned by the Commonwealth. If they are not owned by the Commonwealth, Whitlam asked, then who does own them? The Archives contention is quite remarkable – the Palace letters are owned by Mrs. Bashford. And who, you might ask, is Mrs. Bashford? She is the daughter of Sir John Kerr’s second wife, who inherited her mother’s estate and with that, apparently, Kerr’s residual estate. So, while Australians are denied access to the Palace letters according to the Queen’s embargo, Mrs. Bashford alone has access to them and ultimate control over them. She could withdraw them from the Archives – and indeed has already revised the conditions on them – she could destroy them, sell them to a foreign government or even release them to Julian Assange and WikiLeaks. Such is the strange predicament of the Palace letters as ‘personal’ records and not owned by the Commonwealth.
A final intrigue came with a parallel exchange being played out in the Parliament while the case was proceeding. The Labor member for Bruce, Julian Hill, was pursuing the Prime Minister, Malcolm Turnbull, over Turnbull’s rash promise four years ago that he would ‘resolve the impasse’ over the letters by personally approaching the Queen and ask her to release them.
Mr. Hill diligently pursued Turnbull over his forgotten promise to ask the Queen to release the Palace letters.
On the other hand, Mr. Hill said on 21 November 2016: “I hope that the court succeed as I cannot support the Prime Minister’s suggestion of a formal approach to the Queen asking her to release our own national records. What a toadying, unedifying, humiliating lot of colonial nonsense!” (Julian Hill MP – The Palace Letters | Facebook).
Mr. Hill placed a question on notice to [then] Prime Minister Turnbull in the House on the final sitting day of Parliament in 2016, asking whether the Prime Minister had approached the Queen seeking the release these letters and if so, what her response had been. For the following eight months Turnbull simply refused to answer, despite being twice prompted by the Speaker to do so. Finally, on the eve of the hearing in the Palace letters case in September 2017, the [then] Prime Minister’s Office responded: “Discussions/communications between the Prime Minister and Her Majesty the Queen are confidential.” Turnbull’s resort to Royal secrecy could not have been more fitting, and totally deserving of Mr. Hill’s qualification: toadying, unedifying, humiliating lot of colonial nonsense.
Professor Hocking pretended to believe that Turnbull ‘republicanism’ should be regarded as something other than way to notoriety, public power and fulfilment of what he might have considered a Calvinistic predestination.
She said: “It seems that not even our avowedly republican Prime Minister can escape the vestiges of colonialism that continue to deny us access to our own history. It’s time we ended these residual ties of dependency, secrecy and colonial deference, and became an Australian republic.” (J. Hocking, ‘Secret “Palace letters” not so secret after all’ and where is Malcolm?, 13 September 2017).
Lead barrister, Antony Whitlam QC, addressed the central question of the nature of “personal” as opposed to “commonwealth” records, arguing that correspondence between the Queen and her representative in Australia could not be considered “personal”. “It cannot seriously be suggested that there was a personal relationship between the Queen and Sir John Kerr.” Whitlam contended that “personal records” would be records that were “unrelated to the performance of Sir John’s official duties” and would not extend to Kerr’s correspondence with the palace prior to his dismissal of the Whitlam government in November 1975.
Thomas Howe QC for the National Archives, however, described the letters as Kerr’s “personal property” for him to dispose of as he wished. The letters were deposited with the archives by Mr David Smith, the governor general’s official secretary, after Kerr left office. However, Howe contended, in doing so Smith was acting as an “agent” of Kerr and on his instructions, “They are the property of Sir John Kerr personally, not the commonwealth or the official establishment.”
It was intrigue upon intrigue as Howe then detailed the secret late-night photocopying by David Smith of a second set of palace letters, a set requested by Kerr to “refresh his memory” while writing his memoirs in France after his resignation as governor general. That Smith undertook this task in secret and late at night, Howe argued, pointed to the private nature of the letters which necessitated therefore that Smith take copies after hours – making use of the Government House photocopier, paper and letterhead when doing so. The very fact that Kerr created these copies and passed them to his heirs for deposit separately in the archives, Howe argued, indicated their “personal” nature.
Adding to the tangle is that David Smith himself was closely involved in writing the palace letters, which highlights a slightly different aspect to their status as “official records” – they reflect the relationship between the governor general and his official secretary in their preparation and the relationship between the Queen and her representative in their communication. (J. Hocking, The palace treats Australia as the colonial child not to be trusted with knowledge of its own history – A REPOST from 11 September 2017, 16 January 2018).
Continued Wednesday – Medieval combat for ‘the Palace letters’ (part 7)
Previous instalment – Medieval combat for ‘the Palace letters’ (part 5)
Dr. Venturino Giorgio Venturini devoted some seventy years to study, practice, teach, write and administer law at different places in four continents. He may be reached at George.firstname.lastname@example.org.
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