IN DECEMBER 2005, Gough Whitlam was at the National Archives of Australia in Canberra speaking on the occasion of the third and final release of Cabinet records of the Whitlam government. It was hot, mid-summer, and Whitlam was just a few months short of his ninetieth birthday. His speech was vintage Gough Whitlam: an incisive mixture of the performative and the instructive, with just a hint of self-mocking. It was at the same time a sharp corrective to history.
Whitlam’s focus that day was less on the release of the Cabinet records and more on what he saw as a significant and largely forgotten thirtieth anniversary that year: his government’s establishment of the Australian Archives as the permanent national repository of our most significant historical records. This feisty speech, in which Whitlam reiterated his ‘belief in the contemporary document as the primary source for writing and understanding history’, reminds us of his commitment to the preservation of our documentary heritage, to archival research and public access, as fundamental to historical endeavour.[i]
Whitlam not only understood the importance of archives as a window on history, he recognised the essential functional duality in meeting that role – the preservation of archival records on the one hand together with public access to them on the other. He described the purpose of the Australian Archives, forerunner of the National Archives of Australia, in precisely those terms: to ensure that our most important historical records are, as he put it, ‘publicly preserved and accessible to the public’.
Access is the pivot between archives and history; it is the filter through which an archival record steps out from a shadowy past and becomes part of the historical record. It is this nexus between history as lived and history as written that makes public access absolutely fundamental to our knowledge and understanding of history. Decisions on access, on what we can and cannot see, effectively determine what we know about our own history.
What purpose is there in collecting and preserving such significant historical records if they remain closed to us? How can we know our own history if we cannot access the documents that would reveal it to us?
THE WHITLAM GOVERNMENT’S appointment of Professor Robert Neale as the inaugural Director-General of the Australian Archives cemented the early incarnation of the Archives as a body animated by a concern for history as much as by the collection and preservation of government records. Professor Neale was a historian with a noted commitment to research and public access. As Editor of Historical Documents in the Department of Foreign Affairs, he had released material in 1971 showing that the Menzies government’s claim that Australia’s military commitment to Vietnam was the result of a request from the South Vietnamese Government was ‘conclusively’ untrue.[ii]
It was scarcely a popular decision within government or defence, yet Neale insisted that the record should show it, the history should note it and the Australian people should know it. Under Professor Neale, the Australian Archives was an organisation committed to facilitating historical research and grounded in the presumption of public access.
We face a vastly different archival landscape today.
Like most of the collecting institutions, the National Archives of Australia confronts significant budget constraints, staff reductions and resource pressures. It has faced budget cuts of approximately 10 per cent every year since 2014 and has shed seventy-four jobs since 2012, which inevitably impacts on service delivery – particularly the length of time taken in dealing with access requests.[iii] These delays were the greatest concern expressed by scholars and researchers during the Tune Review of the National Archives last year.[iv]
Although the Archives is statutorily required to deal with requests within ninety days, researchers are at times waiting for years for access decisions to be made. It is not uncommon for material to be released years after the publication of the work for which it was sought, seriously hindering original research. In my own work this has certainly been the case. I currently have thirty requests for access waiting to be dealt with – twenty of those have been ‘withheld pending advice’ for eight years. I’ve written three books in that time, none able to take account of that archival material – and, regrettably, my experience is hardly unique.[v]
In government, Whitlam advocated strongly for the ‘right to know’ and accountability through public access to information, most notably with twin initiatives: the establishment of the Australian Archives and moves towards a national system of freedom of information laws. In an interesting intersection of past and present, both these enduring initiatives have been central to uncovering the hidden history of the dismissal of his own government by the Governor-General, Sir John Kerr, on 11 November 1975. There is no better example of the significance of public access to archival records to writing and rewriting history, and to challenging prevailing historical orthodoxies, than the still-evolving history of that dismissal. It is the quintessential example of why archives and public access to them are so important.
Sir John Kerr’s dismissal of an elected government in November 1975 – a government that retained the confidence of the House of Representatives at all times – remains one of the most contentious episodes in our political history. It is often forgotten that the House of Representatives continued to sit after the dismissal and that Malcolm Fraser, Kerr’s appointed prime minister, then lost a motion of confidence in the House by ten votes. That definitive motion also called on the Governor-General to reinstate the Whitlam government. Kerr’s refusal to acknowledge the motion of no confidence against Fraser, or to see the Speaker of the House conveying that motion to him, only deepened the divisions over his actions. His dissolution of the parliament with Fraser still in office, despite that no-confidence motion, was ‘Kerr’s second dismissal’; in many ways, it is more shocking than the first for its complete abrogation of any notion of parliamentary sovereignty and authority in a Westminster system.[vi]
The history of the dismissal became an immediate site of ideological contest, as polarising as the dismissal itself. A dominant ‘dismissal narrative’ emerged with the insistent claim that the Governor-General acted alone at its core – that Fraser did not know, that the Queen did not know, that this was a solo act by a reluctant Governor-General. In Kerr’s own words, ‘I had made up my mind, for my own part.’ The veteran journalist Alan Reid, a notable subscriber to this view, put it rather more dramatically when he said that Kerr reached ‘a lonely and agonising decision’.[vii]
In recent years, this dismissal orthodoxy has comprehensively unravelled, with a tumble of revelations from archival records and interviews all telling a different story. In terms of the historiography, the four decades since 1975 have been an ongoing project of historical correction, underpinned by deep archival research in which the official repository of the National Archives has played a critical role.
So, it is astonishing that even today, forty-four years later, key archival documents about the dismissal remain closed. These are the ‘Palace letters’: correspondence between Kerr and the Queen, her private secretary and Prince Charles relating to Whitlam’s dismissal. Although the letters are in Kerr’s papers in the National Archives of Australia, they are not open for public access or even for research purposes, despite their obvious historical significance. The Palace letters are embargoed by the Queen until at least 2027, and after that date can only be opened ‘subject to the approval’ of both the Governor-General’s official secretary and the monarch’s private secretary, giving the Queen an effective lasting veto.
The reason for this denial of access is a single word: ‘personal’. Deemed personal rather than Commonwealth records, the Palace letters carry their own access provisions as initially set out by the official secretary, David Smith.[viii] The designation ‘personal’ is of particular significance for academics and researchers as it locks these records beyond the reach of the Archives Act 1983 and the usual open-access provisions under the ‘thirty-year rule’. Since the avenue to appeal against a denial of access, the Administrative Appeals Tribunal (AAT), relates to Commonwealth records, the only way to challenge the ‘personal’ designation is through an action in the Federal Court of Australia.
And so, in 2016, I commenced action against the National Archives in the Federal Court seeking the release of the Palace letters. I was driven by two particular concerns: first, the undoubted significance of this correspondence to our history, which all Australians have a right to know; and second, the need to protect and extend the principle of open access to critical historical records held by our own National Archives.
This is a landmark case. It involves constitutional questions about the nature of the office of the Governor-General, the relationship between the Governor-General and the Commonwealth, and that between the Governor-General and the Queen. It involves legislative questions about the interpretation of the Archives Act 1983. And it raises political questions about our autonomy as a constitutional monarchy and control over our archival resources.[ix]
ALTHOUGH THE FEDERAL Court acknowledged the ‘clear public interest’ in the letters, which it described as ‘periodic briefings to the Queen’ relating ‘to one of the most controversial and tumultuous events in the modern history of the nation’, it found in favour of the Archives in 2018 that the Palace letters are personal records, effectively continuing the Queen’s embargo.[x] At the appeal against that decision, the Full Federal Court was divided, and in a split decision of two to one again ruled that the letters are ‘personal’ in early 2019.[xi] In his strong dissenting judgment, Justice Flick found that the Palace letters are Commonwealth records and, further, that it would be ‘difficult to conceive of documents which are more clearly “Commonwealth records” and documents which are not “personal” property’ than the Palace letters. Justice Flick described the letters as concerning ‘political happenings’ that go ‘to the very core of the democratic processes of this country’. The High Court of Australia has granted special leave to appeal against the Full Federal Court decision, and this is scheduled to be heard early this year.
An added urgency to release these letters stems from the fact that archival materials have already played such an exceptional role in comprehensively recasting the history of the dismissal. Every one of the revelations which have transformed that history has come about because of research in and public access to archival holdings, and I expect the Palace letters to be no less significant.
A posthumously released interview by Liberal Senator Reg Withers, architect of the dismissal tactics in the Senate, revealed that the Governor-General had been in secret communication with Opposition leader Fraser weeks before the dismissal and had agreed on the terms by which Kerr would dismiss Whitlam and appoint Fraser as prime minister. The records of the Foreign and Commonwealth Office (FCO) show that from October 1975 the FCO was considering its ‘intervention in Australian domestic politics’ – specifically, its possible intervention in the Australian electoral process over the pending half-Senate election that was constitutionally due at that time and that Whitlam had informed Kerr he would announce on the afternoon of 11 November 1975 in the House of Representatives.[xii]
There is no doubt that the single most important revelation in this unfolding history of the dismissal was the role of then High Court Justice, Sir Anthony Mason. In Gough Whitlam: His Time (MUP, 2012), I revealed Kerr’s detailed record describing months of intrigue, secret meetings and discussions with Mason throughout 1975 ‘fortifying me for the action I was to take’. Mason’s role was more than mere fortification – it was an active one, and even included drafting a letter for Kerr dismissing the government days before this took place.[xiii]
This was a volcanic, astonishing revelation. It unmasked the role played by a sitting High Court Justice, hidden for nearly forty years, and highlighted the secrecy at the heart of the dismissal that had allowed the flawed telling of its history to flourish. When I interviewed Mason, I urged him to speak publicly about his role in the interests of history, which he had always refused to do. His response was short and sharp: ‘I owe history nothing.’ Mason had been appointed Chief Justice by the Hawke Labor government, his involvement in the dismissal of its predecessor completely unknown.
The discovery of that single file was a rare archival moment – one that changed the history of the dismissal forever. It shattered the dominant dismissal narrative which hinged on Kerr’s insistence that this had been a solo act. It is now untenable to claim that Kerr acted alone or that he gave no warning to others of what he might do. In light of these revelations, the claim that the Queen and the Palace had no prior knowledge of the dismissal, nor even of Kerr’s contemplation of it, has come under increasing scrutiny. It has not held up well. Kerr’s repeated denials that the Palace knew anything at all, even of the possibility that he might dismiss Whitlam, are impossible to reconcile with the profound transformation of history that has already taken place.
Every one of these transformative details has come about because of public access to archival holdings. If access to any one of these had been denied to me, then the history of the dismissal would still be as partial and incomplete as it was a decade ago, and Mason’s critical role would still be unknown.
The significance of archival research in recasting this history makes the release of the remaining closed archival documents – the Palace letters – an even sharper imperative. And here again Kerr’s papers have provided a glimpse of what those letters might tell us. We now know that the Queen, her private secretary Sir Martin Charteris and Prince Charles were in secret communication with Kerr about the possibility of Whitlam’s dismissal from September 1975. These exchanges took place without the knowledge of Whitlam, towards whom Kerr had determined on the politically unthinkable path of ‘remaining silent to him’.
But Kerr’s contact with the Palace went further. His papers include a handwritten note of key points, including discussions with Prince Charles and what Kerr records as ‘Charteris’ advice to me on dismissal’.[xiv] Specifically, Kerr had discussed with Prince Charles and Charteris how the Palace could help protect his position should Whitlam recall him as Governor-General while Kerr was ‘considering having to dismiss the government’, as Prince Charles described it.
And it is at this point that the role of the Palace became an active one. The Queen, through Charteris, agreed to protect Kerr’s position through a policy of ‘delay’ if the prime minister recalled him.[xv] Charteris confirmed the Queen’s response to this ‘contingency’ in early October 1975, writing to Kerr that if Whitlam recalled him – which was the prime minister’s sole prerogative – then the Queen would ‘delay things’, and not act immediately on that advice as constitutionally required.[xvi] The Queen’s assistant private secretary at the time, Sir William Heseltine, has also acknowledged this ‘policy of political delay’.[xvii] As Kerr later confided to Sir Walter Crocker, the arch imperialist manqué Lieutenant-Governor of South Australia, ‘entre nous, for good reasons, I never had any doubt about what the Palace’s attitude was on this important point’.[xviii]
It was this prior arrangement ‘entre nous’ with the Palace to protect his position that Kerr took as a ‘green light’ from the royals for his actions.[xix]
THERE IS NOW no doubt that these constitutionally disturbing exchanges between Palace and Governor-General took place, but even worse is that they were kept hidden from us and our history in concert with Buckingham Palace, which ensured their omission from Kerr’s autobiography, Matters for Judgment (Macmillan, 1978). With publication looming, the Queen’s private secretary asked for a copy of the manuscript. What followed was nothing less than a crude exercise of distortion through omission, an artful whitewash of history.
The details of this are revealed in letters exchanged by Kerr and the Queen, through her private secretary, in 1978 – the year after Kerr left office. ‘I did my very best of course to omit any reference to the exchanges between Martin Charteris and myself,’ Kerr reassured the Queen’s private secretary as he sent a copy of his manuscript to Buckingham Palace.[xx] The Queen’s response, and any comments and suggestions on Kerr’s manuscript it contained, is clearly a significant historical record for our understanding of the Palace’s role in the dismissal, and yet it is one we cannot see. The Archives has refused access specifically to the Queen’s letter commenting on Kerr’s draft, and those pages alone have been removed from the file. The letters revealing this agreed royal omission from Kerr’s autobiography were written in 1978, after Kerr’s period as Governor-General, and are not among the ‘Palace letters’ which are the subject of my current High Court action. These 1978 letters were released to me in 2019 – eight years after I requested them.
The decision to redact the Queen’s letter to Kerr about his manuscript from his personal papers should alarm all researchers concerned about constraints on public access because, as a personal record, it is one over which the Archives has no express power. The Archives states that ‘access to personal records is determined by the depositor as expressed through an Instrument of Deposit’. The Queen’s comments on Kerr’s draft are part of Kerr’s personal papers and are governed by an Instrument of Deposit specifying that they are to be released thirty years after the date of their creation – therefore, they should have been available for release in 2008.[xxi] Yet access has been denied.
On what basis can the Archives deny access to a personal record when the Instrument of Deposit states they should be released? When I queried this, the Archives informed me that the records ‘have been withheld as they comprise personal and confidential correspondence from the Palace’.[xxii] It is unclear what source of power, if any, the Archives is relying on to act apparently inconsistently with an Instrument of Deposit for a personal record in order to redact personal material from it, royal or otherwise.
Equally concerning is that the Archives’ power to exempt material, and the means for review of such exemption through the AAT, are confined to Commonwealth records. There is no provision for any such power in relation to personal records. There are no express grounds for the Archives to withhold personal records, and no means of appeal. With this decision we enter a kind of Alice in Wonderland territory, where the one area over which the Archives has no express power – personal records – has been transformed into an area of apparent discretionary power, outside the controls of the Archives Act and unaccountable through review.
The Archives’ exemption of material from a personal record is a disturbing development, made all the worse since it mirrors a broader securitisation of archives in recent years. The Archives has increasingly adopted an approach to public access steeped in a culture of security rather than in the presumption of public access that underpinned its foundation. Securitisation brings with it a cautionary approach to the release of controversial, or even potentially controversial, documents. The default position is one of closure or, more commonly, relegation to the archival limbo of ‘withheld pending advice’ (WPA), neither closed nor open, at times for years on end. The number of these WPA records has been steadily increasing by around 400 every year, effectively closing them to public access yet without a decision on access being made.[xxiii]
The securitisation of the Archives in turn reflects a profound change in the organisational framework in which it operates. In 2013, the Archives shifted from its administrative location with the cultural institutions in the Arts to the Attorney-General’s Department – alongside crime and security organisations, including the Australian Security Intelligence Organisation (ASIO).[xxiv] In 2012, Mr David Fricker, then Deputy Director-General of ASIO, was appointed Director-General of the National Archives, tasked with reviewing access delivery, priorities and expenditure in the face of diminishing budgets and staff reductions.
Given these straitened circumstances, it is surprising that the National Archives has spent over a million dollars fighting requests for public access to its records in recent years, much of it on the Palace letters case. At a time when diminishing budgets have led to significant cuts in staff and services, these are troubling priorities for an organisation whose core purpose includes ensuring ‘that Australians have access to a national archival collection so they may better understand their heritage and democracy’.[xxv] These figures and priorities are a stark reminder of just how far we have come from a time when the presumption of public access actually meant something.
[i] Whitlam, G. (2005). Thirty years of Australian Archives. National Archives of Australia Whitlam Institute e-collection.
[ii] Edward, P. (2005). Professor Robert Neal, transcript. National Archives of Australia.
[iii] Koslowski. M. (2019). National Archives may not survive unless funding doubles, warns council. Canberra Times, 18 July.
[iv] For example, submissions to the Tune Review by Professor Anne Twomey and Dr Tim Sherratt: https://www.naa.gov.au/about-us/tune-review/public-submissions-tune-review.
[v] Sherratt, T. (2018). Withheld, pending advice. Inside Story, 2 February.
[vi] Hocking, J. (2014). Gough Whitlam: His Time (2nd ed) Melbourne University Publishing, Carlton. p. 346.
[vii] Kerr, J. (1978). Matters for Judgment. Macmillan, South Melbourne. p. 361.
[viii] Hocking, J. (2017). The palace treats Australia as the colonial child not to be trusted with knowledge of its own history. The Guardian, 6 September.
[ix] Robinson, J. (2019). Palace letters highlight undemocratic secrecy, The Saturday Paper, 23 February; Anne Twomey, A. (2019), Editorial. Australian Law Journal; Carroll, J., Bush, C., Cuthbert, N. and Grivas, R. (2019). The Palace letters and you. Clayton Utz Administrative Law Updater, 3 September.
[x] Hocking v Director-General of National Archives of Australia  FCA 340. https://jade.io/article/574702.
[xi] Hocking v Director-General of the National Archives of Australia  FCAFC 12. https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2019/2019fcafc0012.
[xii] I discuss these files in detail in Hocking, J. (2017). The Dismissal Dossier: Everything You Were Never Meant to Know About November 1975—The Palace Connection. Melbourne University Press, Carlton; on half-Senate elections, see the Australian Constitution s.13, ‘Rotation of Senators’.
[xiii] Mason, A. (2012). It was unfolding like a Greek tragedy, The Age, 27 August.
[xiv] Gordon, M. (2012). Kerr’s papers reveal man behind Whitlam sacking. The Sydney Morning Herald, 25 August.
[xv] Hocking, J. (2017). ‘A royal green light’: The Palace, the Governor-General and the dismissal of the Whitlam Government. https://johnmenadue.com/jenny-hocking-a-royal-green-light-the-palace-the-governor-general-and-the-dismissal-of-the-whitlam-government.
[xvi] Balfour Declaration 1926 (Imperial Conference). https://www.foundingdocs.gov.au/item-did-24.html.
[xvii] The Crown and Us (2019), ABC, 2019.
[xviii] John Kerr to Walter Crocker, 15 March 1979, Kerr Papers, National Archives of Australia, M4526 11 Part 1.
[xix] Hocking, The Dismissal Dossier, p. 24.
[xx] Kerr to Sir Philip Moore, 29 August 1978 and 25 September 1978; Private Secretary’s Office to Kerr, 22 September 1978, National Archives of Australia M4526 6, ‘Buckingham Palace’. These letters date from after Kerr’s period as Governor-General and are not part of the Palace letters subject to my legal action. They were released to me in 2019, eight years after I requested them.
[xxi] The current Instrument of Deposit for Kerr’s personal records states that, with the exception of the Palace letters, the records are to be released thirty years after their date of creation. The 1978 letter from the Queen’s private secretary about Kerr’s draft manuscript should therefore have been released in 2008.
[xxii] Decision on Access M4526 6 ‘Buckingham Palace’ NAA to author 6 August 2019
[xxiii] Sherratt, Withheld, pending advice, 2 February 2018.
[xxiv] National Archives of Australia (2012). Annual Report 2011–12. p. 2; National Archives of Australia (2013). Annual Report 2012–13. p. 2; National Library of Australia, Annual Report 2012–13. p. 10.
[xxv] National Archives of Australia. About us. https://www.naa.gov.au/about-us.