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Palace letters highlight undemocratic secrecy

by Jennifer Robinson.

In 1944 Australia attempted to modernise its constitution through the ‘14 Powers’ referendum, which was lost. Many of the proposed 14 changes were passed in subsequent years including the right for the federal government to make laws for Indigenous Australians and a national health care scheme.

A young volunteer called Gough Whitlam, said his “hopes were dashed by the outcome”. He went on to finish his law degree at the University of Sydney and joined the Australian Labor Party in 1945.

On 8 February 1967, Whitlam became leader of the ALP. On the same day exactly 52 years later, a divided Full Federal Court found that the infamous Palace Letters, exchanged during the time of Whitlam’s dismissal, between Queen Elizabeth II and Governor-General Sir John Kerr were to remain hidden from view.

This decision is fundamentally unconstitutional. Australia’s place in the world is as an independent nation, a constitutional monarchy. Correspondence between the Queen and her Australian representative at a time when the Governor General exercised his constitutional power to dismiss a sitting Prime Minister go, as the dissenting judge said, to the “very core of the democratic processes of this country”. That correspondence should be public.

Not so in the case of the Palace Letters it seems. Despite ample evidence that the palace communicated through, at the very least, intermediaries like Prince Charles and the Queen’s Private Secretary about the dismissal of Prime Minister Gough Whitlam, the Court (divided 2 to 1) decided to continue to conceal the direct correspondence between Kerr and the Queen calling it ‘personal’. This decision affirms that it is the Queen’s prerogative to decide if and when to release this material, making our public interest as a nation subordinate to her personal preferences.

When our independence and public interest can be overridden in such a way, it is clear that our rights are only enjoyed at the whims of a person on the other side of the world.

The ‘Palace Letters’ case, brought by Professor Jenny Hocking, highlights how laws designed to give Australians access to information to scrutinise executive action are instead used to keep the public in the dark. Only now, more than fifty years after the dismissal of Whitlam, are we truly beginning to see the level of orchestration that occurred between the Governor-General, the Opposition leader, a justice of the High Court, Prince Charles, and perhaps even our overseas Queen. It is only through the dogged determination of a professor, an extraordinary crowdfunding campaign, and the backing of Grata Fund (Australia’s first independent public interest litigation fund) that we have even gotten this far.

Like the laws governing the ‘Palace Letters’, the practical operation of Australia’s FOI laws show why ordinary Australians cannot properly interrogate government action. Despite narrow legal grounds for concealing documents, government agencies routinely refuse to release them. Appeals are long and costly. Final decisions may take years and challenging decisions to refuse access to documents can run to many, many thousands of dollars. The cost is too high for most, and so the information remains unpublished. Hidden. That the operation of FOI laws and the laws governing access to Australia’s national archives have broken down to this degree undermines our democracy. This needs to change.

Of the lost 1944 referendum, Whitlam once said that he was determined to do all he could to modernise the Australian Constitution. He did not know then that his future actions would lead to some of the most important constitutional questions of our time. Nor could he have foreseen how questions concerning the operation of constitutional process would remain shrouded in secrecy.


Jen Robinson is a director of Grata Fund. Jen is an Australian human rights lawyer and barrister with Doughty Street Chambers in London.

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