By Dr George Venturini

On 17 March 2018 Professor Hocking issued a news release about Justice Griffiths’ 16 March decision in the Federal Court action ‘Jennifer Hocking v. Director-General, National Archives of Australia’, in favour of the National Archives. Justice Griffiths had ruled that the ‘Palace letters’ between the Queen and the Governor-General, Sir John Kerr, at the time of the Whitlam dismissal are ‘personal’ not Commonwealth records and do not come under the Archives Act. The Queen’s embargo would therefore continue, and the Palace letters would not be released.

The decision maintained the long-standing practice of designating the Monarch’s letters as ‘personal’ rather than official ‘Commonwealth records’, ensuring the continued Royal secrecy over the Queen’s correspondence, including with the Governor-General, regardless of its content or historic importance. With this decision, the Federal Court continued the Queen’s embargo on their release, potentially indefinitely. As a result, the hidden history of the dismissal of the Whitlam government would remain hidden.

Professor Jenny Hocking said: ‘We are obviously extremely disappointed with the outcome of this important case. The decision by Justice Griffiths continues the Queen’s indefinite embargo over her correspondence with Governor-General, Sir John Kerr, denying Australian’s access to key documents about an important part of our history. It is a disappointing decision for our history, specifically for the history of the dismissal which has long been cast in secrecy. Unfortunately, that secrecy will now continue.’

Professor Hocking’s legal team was nevertheless examining the decision in greater detail and would soon have had more to say on this and any possible future developments.

Once again Professor Hocking remarked: “It is astonishing and demeaning to Australia as an independent nation that access to the Queen’s communications with Governors-General continues to be at the whim of the Queen. Today’s decision has maintained this residual British control over Australian archival material, kept from us in the name of the Queen through the exercise of a Royal veto.”

Professor Hocking called on then Prime Minister Turnbull, a committed republican, to make good his stated support for the release of these letters and advise the Queen to lift her embargo.

“I wish to thank the legal team all of whom worked on a pro bono basis, Antony Whitlam QC and Tom Brennan, instructed by Corrs, Chambers, Westgarth, for their tireless work and commitment. ‘Without them this case could never have proceeded, and could never even have been imagined. We owe them a great debt of gratitude for their public-spirited pursuit of accountability and transparency at the very highest levels. I also thank and acknowledge the hundreds of supporters of the crowd-funding campaign release the Palace letters and who have followed its way through the Court with such enthusiasm.” (J. Hocking, News release: The Palace Letters, 17 March 2018).

In a further piece, dated 20 March 2018, Professor Hocking complained that it is difficult to reconcile the court’s view of the palace letters as “personal” and not Commonwealth records with its description of them as addressing “topics relating to the official duties and responsibilities of the governor general”, as “periodic briefings to the Queen”, and as “reports to the Queen”. The court pointed to the long-standing practice in the United Kingdom that such correspondence is considered “personal”, and that they are “housed in the Royal Archives and access to them is governed by specific agreements”, confirming that “the imperial presumption of royal privilege and secrecy still exists in Australia despite our position as an apparently independent constitutional monarchy. Rule Britannia.” (J. Hocking, Snub over ‘palace letters’ underlines why Australia should ditch the Queen, 20 March 2018).

In initiating the case Professor Hocking had embarked upon an effort to secure public access to the palace letters because of their undoubted significance to Australian history, and also to ensure that access to them would be determined by an Australian court according to Australian law and not as a quasi-colonial gift of access by the Queen.

A federal court action was the only way to contest what appeared to be a perverse designation by the National Archives of letters between the Queen and the governor general as “personal”. Contesting this designation was at the heart of proceedings.

The view put forward by the legal team led by Antony Whitlam QC, is that the palace letters are Commonwealth records, between the monarch and her representative in Australia, about political matters and at a critical time in Australian history. They form part of Australian national historical estate which it is the responsibility of the National Archives of Australia to preserve and provide access to, and in which all Australians should share.

The decision to retain the Queen’s embargo over these letters as “personal” was – in the view of Professor Hocking – the latest iteration in the highly contested and still evolving history of the dismissal, which has long been cloaked in secrecy, error and even outright deception. The Kerr papers have given the public some startling revelations over the last decade which have transformed the correct knowledge and understanding of the history of the dismissal of the Whitlam government.

As Professor Hocking bitterly noted: “… these letters are now to remain secret is deeply disappointing – for [the public’s] knowledge of the dismissal, for [Australian] history and [Australian] national independence. The palace letters will now remain embargoed on the instruction of the Queen, an absurd and humiliating situation for any nation.” … “We are in the remarkable position now that it is the Queen who will determine when, and if, we can see these critical documents in our history. I call on Malcolm Turnbull to make good his promise of three years ago to instruct the Queen to release these letters, although I hold out little hope that our once supreme republican prime minister will do so. The federal court’s decision to maintain the Queen’s embargo over our own historical documents will propel moves towards a republic. The lingering power of what Whitlam termed the “relics of colonialism” can only end when we are an independent nation with an Australian head of state – when we are an Australian republic.” (J. Hocking, Snub over ‘palace letters’ underlines why Australia should ditch the Queen, 20 March 2018).

On 11 April 2018 Professor Hocking announced that she had lodged an appeal against the decision of the Federal Court.

Prominent Sydney barrister Bret Walker, S.C., had been briefed to lead the appeal before the full bench of the Federal Court with Tom Brennan, instructed by Corrs Chambers Westgarth.

In making the announcement, Professor Hocking repeated that, “despite having promised three years ago that he would ask the Queen to release the Palace letters, [then] Prime Minister Turnbull continue[d] to refuse to provide any details, including in response to questions in Parliament, about whether he ha[d] approached, or still intend[ed] to approach, Buckingham Palace seeking the release of the letters. (Media Alert: Appeal lodged against Federal Court decision in ‘Palace letters’ case, 11 April 2018).

For good measure, on 22 June 2018, the Federal Court granted a protective costs order in Professor Hocking’s appeal. The protective costs order, to which the National Archives consented, would cover Professor Hocking’s adverse costs exposure and remove a significant financial barrier to the progress of the appeal.

Professor Hocking commented: “The Federal Court’s decision to make a protective costs order is extremely significant for the Palace letters case, and for public interest cases generally, removing a major financial barrier to the progression of the case through the appeal. It is vital that public interest cases can proceed through all legal stages without fear of prohibitive costs effectively denying them full access to the legal system. The Court order is an important step in this direction.” (Federal Court grants protective costs order to Professor Jenny Hocking in ‘Palace Letters’ case (Media Release) 29 June 2018). (See also: Media alert: Appeal lodged against Federal Court Decision in ‘Palace letters’ case, 5 September 2018).

One could take an un-generous view of Professor Hocking’s serial tantrum throwing in claiming for a republic. And one, of course, could not anticipate whether the Full Bench of the Federal Court might have taken a different view of the case from that of Justice Griffiths.

One should keep in mind that of the 47 judges of the Federal Court as at 18 September 2018 most if not all of them come from privileged background, through private education, association with well-known legal firms and, in many cases, after having ‘refined’ their qualifications with a degree – usually a Bachelor of Civil Law but in many cases a Doctorate in Civil Law – from either Oxford or Cambridge. And that is the final touch, the ‘sign of approval’ for people who do not mind being treated as ‘reliable colonials’. It is the indestructible fibril which links a former part of the military empire of yesteryear with the present financial empire and what is left of the dependence on what is left of the military empire from the Anglo-cousin across the ocean.

In a sense it is just like a film-version of tremendous box office success, played on the Oxford backdrop which is an internationally recognised brand. It is the essence of England – as classic, in its own way, as Aston Martin or Burberry.

As issue 18 September 2018 of Prospect noted, Oxford “also signifies exclusivity and elitism. Every year more than 18,000 young people apply to pass through the ivy-clad doorways, but only 3,200 make it. Of these, just 2,600 live in the U.K. In numerical terms, an Oxford education is always going to be for the few, not the many. … “a symbol of unacceptable privilege. A place at Oxford matters beyond symbolism. The badge of an Oxbridge degree will, on past form, take you far.

Three quarters of [United Kingdom] judges; nearly two thirds of U.K. permanent secretaries; half U.K. diplomats and newspaper columnists went to Oxford or Cambridge, along with a third of BBC executives; a quarter of all MPs, and nearly 40 per cent of the House of Lords. All compared with less than one per cent of the UK public as a whole. No wonder there is a long queue at the door.” (If Oxford shrugs, Prospect Magazine).

For the record, this is how Justice Griffiths came to the bench.

“Commission of appointment of a judge of the Federal Court of Australia: I, Quentin Bryce, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and subsection 6(1) of the Federal Court of Australia Act 1976, appoint John Edward Griffiths of Senior Counsel, learned in law, to be judge of the Federal of Australia, assigned to the Sydney Registry beginning on the 23rd day of April 2012 until he attains the age of 70 years. Signed and sealed with the great seal of Australia on the 19th day of April 2012, Quentin Bryce, Governor-General, by Her Excellency’s command, Nicola Roxon, Commonwealth Attorney-General.”

Whereupon Chief Justice Keane invited Justice Griffiths to take the oath of office.

Justice Griffiths swore “that I will bear true allegiance to Her Majesty, Queen Elizabeth II, her heirs and successors according to law and that I will well and truly serve her in the office of judge of the Federal Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or ill will.”

And Oxbridge is the breeding ground where Englanders are going, therefrom to return ‘finished off’ as well as finished!

Professor Hocking’s appeal against the Federal Court ruling in March was heard on 28 November 2018 by the Full Court of the Federal Court before Chief Justice James Allsop, Justice Geoffrey Flick and Justice Alan Robertson. The case was led by Bret Walker S.C. with Tom Brennan, instructed by Corrs Chambers Westgarth. (Media alert. Appeal in ‘Palace letters’ case to be heard, John Menadue, 28 November 2018).

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 8)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 6)