HISTORY
On 11 November 1975 the Governor-General Sir John Kerr, the Queen's representative in Australia, dismissed the Prime Minister Gough Whitlam and his entire government from office. In the 46 years since the dismissal, the real story has become clearer, largely through dramatic revelations from Kerr’s private papers, held by the National Archives of Australia.
There is one crucial part of Kerr's papers that was blocked to us - ‘the Palace letters’. These are the secret letters between Sir John Kerr and the Queen at the time of Kerr’s dismissal of Whitlam.
The National Archives of Australia refused to release these letters to historian Jenny Hocking, claiming that they were 'personal' and not official Commonwealth records. The Palace letters were embargoed until at least 2027, with the Queen's private secretary holding a final veto over their release even after that date. It was entirely possible that they would never be released.
Following this decision, in September 2016, Jenny Hocking launched an action against the National Archives of Australia in the Federal Court of Australia, calling for the release of the Palace letters. This unprecedented action challenged the decision of the National Archives to withhold the Palace letters as 'personal' correspondence between Kerr and the Queen and it sought their release.
TIMELINE
December 2016 - Action against the National Archives of Australia commenced in the Federal Court of Australia in December, in an effort to secure public access to the ‘Palace letters’.
March 2018 - Justice Griffiths ruled that the Palace letters are ‘personal’ and not Commonwealth records, effectively denying public access to them and continuing the Queen's embargo over them.
April 2018 - Jenny Hocking lodged an appeal in the Federal Court against that decision. Prominent Sydney barrister Bret Walker, S.C., led the appeal before the full court of the Federal Court with Tom Brennan, instructed by Corrs Chambers Westgarth, all working pro bono.
June 2018 - A protective costs order was made from the Federal Court of Australia, with the Court making a protective costs order in the appeal. The protective costs order capped Jenny Hocking’s adverse costs exposure and removed a significant financial barrier to the progress of the Federal Court appeal.
February 2019 - in a split 2:1 decision the majority of the Full Court, comprising Chief Justice Allsop and Justice Robertson (with Justice Flick in dissent) dismissed our appeal and ruled that the Palace letters are 'personal' and not Commonwealth records.
March 2019 - Jenny Hocking filed an application for Special Leave to Appeal in the High Court of Australia. Jenny’s legal team of Bret Walker, S.C., with Tom Brennan, instructed by Corrs Chambers Westgarth, presented the Special Leave application to the High Court.
August 2019 - the High Court granted the application for special leave.
February 2020 - the High Court of Australia heard the appeal.
29 May 2020 - the court found in our favour in an extraordinary 6:1 decision.
14 July 2020 - the National Archives of Australia released all Kerr's letters to and from Her Majesty in full and unredacted.