 Thank you Catherine for that very warm welcome and thank you for inviting me to give the 2019 Noel Butler annual lecture. It's a very great honour to be here and I'm delighted to speak to you tonight. In December 2005, Goff Whitlam was at the National Archives of Australia here in Canberra speaking on the third and final release of the Cabinet Records of the Whitlam Government. It was hot mid-summer and Whitlam was just a few months short of his 90th birthday. His speech was typically, you might say, vintage Goff 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 not on the release of the Cabinet Records but on what he saw as the more significant and largely forgotten 30th anniversary that year which was the establishment by his government of the Australian Archives, forerunner of the National Archives of Australia as the permanent national repository of our most significant historical records. This feisty speech in which Whitlam reiterates, quote, 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, archival research and public access as fundamental to historical endeavour. Perhaps unusually for a politician of his time, Whitlam understood the importance of archives as a window onto our history and more importantly he recognised what I think is an essential function and functional duality in meeting that role. That is the preservation of archival records on the one hand together with public access to them on the other. The purpose of the Australian Archives was described by Whitlam in precisely those terms to ensure that our most important historical records are, as he put it, publicly preserved and accessible to the public. Because access is the pivot between archives and history. It's the filter through which an archival record steps out from a shallowery past and becomes part of history. Public access enables an archive to become part of the received history, the written history, part of history as we understand it. It's this nexus between history as lived and history as written that makes public access to archives absolutely fundamental to our history. Decisions on access and what we can and cannot see effectively determine what we can know about our history. Even the most thorough and careful preservation of records adds nothing to our knowledge of history if the public whose stories they tell can't see them. What purpose is there in collecting and preserving the most significant historical records if they remain closed to us? How can we know our own history if we can't access the documents that would reveal it to us? In government there was no greater champion of the right to know and of public access to information than Gough Whitlam. It can be seen in the twin initiatives in open government, the establishment of the Australian Archives and moves towards a national system of freedom of information laws. It's an interesting intersection for me of past and present that both these initiatives have been central in uncovering the hidden history of the dismissal of Gough Whitlam himself. His government's appointment of Professor Robert Neal as the inaugural Director General of the Australian Archives in 1975 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 Neal was a historian and he had a noted commitment to research and to public access. As editor of historical documents in the Department of Foreign Affairs he had released material 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 quote conclusively untrue. Now that was scarcely a popular decision within government or defence yet Neal insisted that the record should show it, the history should write it and the Australian people should know it. Under Professor Neal the Australian Archives was an organisation then committed to the facilitation of historical research and grounded in the presumption of public access and that's a really critical distinction because I think we face a vastly different archival landscape today. Like most of the collecting institutions the National Archives of Australia confronts budget constraints, staff reductions and resource pressures and the greatest concern for scholars and researchers if you've had a look at the recent tune review into the National Archives you can see a consistent thread running through all of the many submissions that were put there and there, some wonderful submissions I recommend you have a look on the website of the archives but they're searing in their common thread which is this concern over the lengthy delays in dealing with requests for archives sorry requests for access to the archival records and although the archives are statutorily required to deal with requests within 90 days researchers are waiting at times for years for decisions to be made it's not uncommon for material to be released years after the publication of the work for which it was originally sought which of course is seriously hindering original research in my own work this has certainly been the case I currently have 30 requests for access waiting to be dealt with 20 of which have been designated delayed pending advice for eight years that's some sort of advice now I've written two books in that time and I'm still waiting and my experience which is even even worse is that my experience is actually by no means unique there's no better example of the significance of good and thorough public access to archival records on the writing and rewriting of history on what we understand our history to be the no dramatic history and the changing history of the dismissal of the Whitlam government it's the quintessential example of why archival materials and public access to them are so very important to history. Gough Whitlam once said whatever our virtues or failings there is no secret history of the Whitlam government well yes and no there may have been no secret history of the Whitlam government because he documented just about everything and he facilitated open government as you know but there has most certainly been a secret history of its dismissal by the Governor General Sir John Kerr and I just want to recap on those two multiple events even though I'm sure most of you know the bones of it and the background to it and the reason I want to recap it is from how we understand it now today because in key respects that's quite different from the picture that had initially been presented to us. Whitlam arrived at Yaralumla government house here in Canberra at 1 p.m on the 11th of November 1975 to sign off on arrangements for the half senate election which had been agreed with Kerr over the previous five days and which Whitlam was to announce in the House of Representatives that afternoon. For me the half senate election is the key and it's so often forgotten in history. For the previous four weeks opposition senators had refused to vote on the government supply bills they hadn't rejected it they'd refused to vote on it and calling the half senate election which was due at that time had always been Whitlam's planned response. If the blocking of supply continued he would call the half senate election at a time of his choosing which was nothing more or less than the Prime Minister's prerogative. In fact as Whitlam pulled up into Yaralumla at 1 p.m a special early edition of ABC radio's p.m was on air and you can actually find this through the wonderful dismissal document site and that was announcing that Whitlam had called the half senate election and that the crisis in the Senate was over. So when Whitlam arrived at Yaralumla he thought to sign off on these agreed arrangements with Kerr. He was instead dismissed without warning. This is why he always called it an ambush he was there for something else. The leader of the opposition meanwhile Malcolm Fraser was secreted in an anti-room at the other end of the corridor emerging immediately after Whitlam's dismissal to be sworn in as Prime Minister and again it's often forgotten that this was entirely unknown to Whitlam that in fact he did not know that Fraser had been immediately sworn in and was waiting at Government House to be sworn in until the following day when he was told that by journalists. It's also often forgotten one of the most interesting things you'll ever read in Hansard and there aren't too many things of that but this really repays a quick reading which is that House of Representatives resumed sitting at 2 p.m we remember that the Senate continued because of course we focused totally on this question of supply but the House continued to sit and at 3 p.m Fraser lost a motion of confidence he'd already lost about five votes I think before then he lost vote the most important motion the motion of no confidence by 10 votes. That same motion affirmed the confidence of the House in Gough Whitlam and critically called on the Governor-General to reinstate a government led by the member for wearer Gough Whitlam. The Speaker was then dispatched to Yaralumla to inform the Governor-General of the decision of the House on the formation of government and if you're following events in in the British Parliament at the moment over Brexit you'll know that these are very pressing issues over the question of the role of Parliament in the formation of government. However in a staggering series of events Fraser refused to resign as Prime Minister and Kerr refused to see the Speaker ignored the motion of the House and called a double dissolution election with Fraser still in office. This is what I call in this excellent book Kerr's second dismissal and it is in many ways more shocking than the first for its complete abrogation of any notion of parliamentary sovereignty and authority in a Westminster system. Kerr's actions in dismissing an elected government which retained the confidence of the House of Representatives remains one of the most contentious and divisive episodes in our political history and that its history has been no different quickly becoming as divided and as polarizing as the dismissal itself and I am acutely aware of those divisions that still exist among those who have a very strong in particular view that the history is now completely unraveling. A dominant dismissal narrative soon took shape which we now know was marked by errors omissions and at times even worse. Central to this received view was the view that the Governor General acted alone that Malcolm Fraser didn't know that the Queen didn't know that this was a solo act by a very reluctant Governor General. As Kerr himself said I made up my mind on my own part. The veteran journalist Alan Reed who was a notable subscriber to this view described it rather more dramatically when he said that Kerr reached a lonely and agonizing decision but this was quite simply untrue. In recent years the long-standing view of the dismissal as Kerr's solo act has not only been challenged it has comprehensively unraveled with a tumble of revelations from archival records, personal interviews and posthumous confessions from aging protagonists all of them telling a very different story. The four decades since have been in terms of the historiography an ongoing project of historical correction which continues to this day and there can be no better example of the significance of the vast official repository of the National Archives and public access to them in documenting and understanding our history than this and so it's astonishing that even today 44 years later critical documents about the dismissal remain hidden from us and even more astonishing is that these documents are kept right here in Canberra in our own National Archives. We look after them we pay for their upkeep but we can't see them. If the Queen arrived she could see them but we cannot. These are the palace letters correspondence between the Governor-General Sir John Kerr and the Queen her private secretary and Prince Charles relating to the dismissal of the Whitlam Government. The letters are among Kerr's papers in the National Archives and are close to us as I said they're not open to 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 even after that date they can be only opened subject to the approval of the Governor-General's official secretary and this is critical and the monarch's private secretary so in other words they need the approval of the monarch's private secretary for them to be open. This gives the Queen an effective indefinite veto should the private secretary choose not to approve their release. It's quite possible then that the palace letters may never be opened despite the great public interest in them and despite the fact that this correspondence is between two people at the apex of our political structure as a constitutional monarchy and during the greatest political crisis in our recent history possibly in our history. Now the reason for this denial of access to the palace letters is straightforward it's a single word personal and what a remarkably powerful word that is in this context personal. The palace letters have been held to be personal records and not commonwealth records and that's the critical distinction because only commonwealth records come under the Archives Act it's an extraordinary catch-22 for a researcher. As personal records they carry their own specified access conditions. Now the designation of personal is particularly significant for academics and researchers and I'll explain why and that's because it locks those records beyond the reach of the Archives Act and that means that therefore it keeps them out of the usual open access provisions for archives under the 30 year rule which is now 20 year rule it's slowly reducing. So these records don't come under those provisions under the Archives Act but it also leaves a second thing which is that it leaves no easy way to challenge this decision as I now know. The usual avenue for appeal that is the administrative appeals tribe unit would be relatively straightforward I think it now does have a cost associated but compared to a cost of a federal court action it's basically nothing but that again relates only to commonwealth records and so you cannot appeal a decision not to allow access to personal records to the administrative appeals tribunal there is only one way to challenge the designation of these historic letters as personal and that is through a federal court action and in 2016 I commenced a federal court action against the National Archives seeking the release of the palace letters arguing that letters between a monarch and the Governor General are commonwealth records and not personal. Three years later the case continues and as Catherine said just last month the High Court of Australia granted special leave to appeal against the early decision of the full federal court we expect that appeal to be heard by the High Court of Australia early next year and that's a really extraordinary step and one I'm so grateful to the legal team for enabling. One thing that can be said is that from the moment this case came before the court the question of the release of the palace letters changed irrevocably their status and their release will now be determined by an Australian court according to Australian law and this alone is a really historic result. In taking this case I was driven by two main concerns first the undoubted significance of the Queen's correspondence with the Governor General to our history which I believe all Australians have a right to know and not just the Queen and secondly the need to protect and extend the principle of open access to such critical historical records held by our National Archives. This legal action was only made possible thanks to the commitment and generosity of the legal team and I do want to thank them and acknowledge them here today we had had leading Barristers Antony Whitlam QC at trial and Brett Walker SC at the appeal with Barrister Tom Brennan and instructed by cause chambers Wes Garth and they have all been extraordinary and I thank them today. The case has also been supported by hundreds of donations from people concerned by this secrecy through a major crowdfunding campaign on chuffed this is still open it's called release the palace letters the High Court appeal so if you are interested please do have a look not only is it fundraising because there are mountainous other costs and the somewhat disconcerting prospect of cost orders etc but it also gives you a very good rundown of the case where it's come from each step of the way and if you're interested please do have a look and I also acknowledge the generous support of the grata fund which is a wonderful public interest litigation funder group set up fairly relatively recently again well worth a look through their democracy and accountability project they are funding and supporting and underwriting some extraordinary really important public interest litigation that otherwise simply wouldn't be able to get off the ground and I congratulate them for that this is a landmark case it is the first time the critical archival designation of correspondence between the queen and the governor general as personal has been tested in an Australian court it involves constitutional questions about the nature of the office of the governor general the relationship between the governor general and the commonwealth and between the governor general and the queen it involves legislative questions regarding the interpretation of the archives act of 1983 and it raises political questions about our autonomy as a constitutional monarchy and our control of our own archival resources and there's an added urgency to the release of these letters which in my view comes from the simple fact that archival materials have already played such an exceptional role in the comprehensive recasting of the history of the dismissal every one of the revelations which has have transformed our understanding of the dismissal of the Whitlam government has come about because of research in and public access to a range of archival holdings public access to archives has been absolutely fundamental to what we now know about the dismissal of the Whitlam government and I expect the palace letters will be no less significant than those let's look at just some key archival revelations that have underpinned this shifting history of the dismissal take the posthumously released interview by former liberal senator reg withers architect of the dismissal tactics in the senate and that posthumously released interview and this again is a common theme through this material the agreement the material will be released after the death of the person involved there's a very troubling moral issue here of moral courage and professional ethical action that I found deeply troubling in seeing many of these revelations however withers interview was posthumously released and I was the first person to look at it within about a month of his death what it showed is that the opposition leader Malcolm Fraser and the governor general had been in secret communications before the dismissal both of them had denied that repeatedly and adamantly for decades and they had been in secret communication through a private telephone line in Fraser's office and withers was present during at least one of those private telephone communications in the weeks before the dismissal and moreover they had agreed on the terms by which Kerr would dismiss Whitlam and appoint Fraser as prime minister John Menadieu head of department of prime minister and cabinet during the Whitlam period passed a searing reflection on hearing of this outrageous exchanges he called it he said it was contrary to convention developed over centuries that the head of state acts on the advice of the prime minister and it also highlights deceit by the governor general and secondly take the records of the british national archives these are detailed great detail in here which have shown us that the foreign and commonwealth office was as early as october 1975 considering intervention in australian politics specifically in relation to the half senate election and i quote here from the title of numerous memos that you'll see written at the time quote intervention in australian domestic politics it's absolutely extraordinary to read these i'm beyond being shocked by just about anything but i was shocked by what i read in the files of the foreign and commonwealth office that is british intervention in the australian electoral process the foreign and commonwealth office even discussed asking the queen's private secretary to lean on sir john kerr regarding the half senate election never mind the slightly inconvenient fact that the half senate election was constitutionally required within the next few months the head of the foreign and commonwealth office then visited kerr in camber in october 1975 after which he happily relayed back to whitehall quote the comforting confirmation that kerr could be relied upon to protect the queen from the half senate election whatever that might take and why ever the queen might need protecting from an australian half senate election but that's another very very complicated story which i detail here but it's absolutely extraordinary it's as if our pesky electoral process was a mere administrative irritant to be swept aside in the interests of protecting the queen from some imagined political embarrassment smoothing her political path by completely disrupting our own and finally although we don't yet have access to kerr's correspondence with the queen his papers have already revealed the remarkably partisan royal intercession of the queen's favorite cousin lord louis mount batten who happened also to be prince phillips favorite uncle which such is the nature of our royal family mount batten wrote kerr just days after the dismissal congratulating him on quote his courageous and correct action and followed this up with a personal visit staying with kerr at admiralty house in sydney just weeks later kerr described mount batten's letter as being of outstanding value to him and he planned to take it with several other letters of support from prominent individuals after he left left office so the governor general's official secretary mr david smith was tasked with preserving two boxes of these congratulatory and it appears highly controversial letters and sending them on to kerr in the south of france where he was then exiled now you can just imagine what an extraordinarily interesting historical hall that would have made but unfortunately these are letters that we can never see because in a moment of extraordinary carelessness all of these congratulatory letters from prominent individuals had according to david smith been accidentally burned in the yarrow lumbler incinerator by an overzealous cleaner and so these outstanding letters to the governor general about the dismissal at least one of which was from a prominent member of the royal family which were in the care of kerr's fiercely protective official secretary have now been irretrievably lost to history there's no doubt however that the single most important revelation in this unfolding history of the dismissal was the role of the then high court justice serratney mason kerr left a detailed 12 page record describing months of secret intrigue with mason meetings conversations counseling and guidance as kerr described it quote fortifying me for the action i was to take but mason's role was far more than mere fortification it was an active role and it even included drafting a letter for kerr dismissing goth wetland in the days before the dismissal and i can't tell you the extraordinary experience of actually opening that document and being so shocked by what i was reading kerr writes in a in an extremely melodramatic manner about this person who he doesn't name until about page three which was very frustrating about the need to bring this man out of the shadows of history and his turn of phrase matches the nature of the revelation that is unfolding in the document that i was reading and it is one of those moments where you realize you've seen something that is going to change the way we understand a particular history forever and kerr was very careful to leave all of those things in his papers what he left publicly is highly questionable to say the least what he left in his papers is far closer to the truth of what happened as i said mason's role was an active one and it was mason himself who volunteered the following day after this material came out in the second volume of my biography of wetland mason himself volunteered that he had drafted a letter of dismissal for kerr the australian reported the next day the only tenable conclusion is that mason was implicated in kerr's dismissal of wetland and i think that's the correct assessment as i said i can't stress too strongly what a volcanic and astonishing revelation that was it not only masks unmasked the role of a sitting high court justice in kerr's actions which had been kept secret for nearly 40 years so if you ever doubt that something that historical secrets can actually be kept they can clearly and they have and they are in doing so it also highlighted the secrecy at the heart of the dismissal a secrecy which had then continued into its deeply flawed historical representation when i interviewed mason as i did for the biography of widlam i put it to him that he should speak publicly about his role which i had by then uncovered but was not yet public and he had always refused to speak of his role and he told me he would not in fact do so i pleaded with him to speak about his role in the interests of history his response was short and sharp i owe history nothing i just let that sit for a moment he was quite prepared like with us he's quite prepared for this to come out after his death and it actually prepared material for that purpose and it was not meant to come out before that public access is a wonderful thing and so it did the discovery of that single file was a rare archival moment one that changed the history of the dismissal forever the dominant dismissal narrative which had for decades hinged on kerr's insistence that this had been a solo act had shifted profoundly with vastly different implications it is now simply untenable to claim that kerr acted alone and that he gave no warning to others of what he might do in light of these continuing revelations the claim that the queen had no knowledge of the dismissal has come under increasing scrutiny and it has not held up well kerr's repeated denials of the palace knew anything at all about even the possibility that he might dismiss widlam are impossible to reconcile with the profound transformation of the history that has come about because of these recent revelations now in this pain i think that's how you say paying to archives and access tonight because i think it is a pain to archives and access i i think they're utterly critical it is instructive to remember that every one of these transformative details about the dismissal of the widlam government has come about because of public access to archival holdings if access to any one of these archives had been denied to me then the history of the dismissal would still be as flawed partial and incomplete as it was a decade ago and mason's role in particular would still be completely unknown it is this undoubted significance of archives to the history of the dismissal that makes the release of the remaining closed archival documents the palace letters and even sharper imperative and here again kerr's papers have provided the first glimpse of what those letters might show among his vast materials is a handwritten journal in which kerr describes a remarkable set of discussions with prince charles and the queen's private secretary sir martin charters in september 1975 one month before supply was even blocked in the senate in which kerr confided to charles that he was considering dismissing golf widlam in raising this prospect with the future king kerr's chief concern was for his own position kerr feared that widlam might recall him as governor general should widlam become aware that kerr was secretly considering dismissing him which would not have been an entirely unreasonable response by the prime minister had he found out about kerr's now well-established intrigue and deception and that the governor general was secretly planning to remove him kerr writes that charters sorry that charles expressed dismay at the prospect saying but 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 now remember this is prince charles speaking about sir john kerr considering having to dismiss the government in september 1975 this extraordinary conversation was then relayed to the queen's private secretary sir martin charters who wrote to kerr and reassured him that if the contingency as he rather coyly termed it if that contingency arose then the palace would quote try to delay things and it's important to remember here that the queen's private secretary speaks for the queen to all intents and purposes the queen's private secretary is the queen the private secretary is officially on the royal website described as the channel of communication with the monarch so when you read of the queen's private secretary zx that is also interchangeable with the queen zx it is impossible to understate sorry to overstate the significance and the impropriety of this exchange it's quite simply politically and constitutionally shocking it shows the palace to be in deep intrigue with the governor general seek from the prime minister as he worked towards removing the government and worse becoming a party to it by agreeing to protect kerr's position should wittler move to recall him a decision which is entirely and only the prime ministers to make this was a total rupture in the vice regal relationship in our political system as a constitutional monarchy at the heart of which is that the appointment and recall of the governor general is made by the monarch on the advice of the australian prime minister alone this has been the case since the imperial conference of 1926 and the balfour agreement which followed which formalized the autonomy of the british dominions agreeing to delay acting on wittlums entirely proper and constitutional advice should that have been given was clearly for kerr an expression of both encouragement and support for the actions he was taking and i fail to see how he could have read it in any other way for although charters concluded that quote in the end the queen would have to take her prime minister's advice given the context of these letters was the dismissal of the prime minister and the appointment of another an action which we now know took barely two minutes in the governor general study the question must be asked just which prime minister would that be elsewhere in his papers kerr refers to quote charters advice to me on dismissal and so there is no doubt from his archival notes as i argue in the dismissal dossier not only that these communications took place at this forewarning occurred but the kerr took these communications as a royal green light for the path that he was taking even more damning in this retinue of secret royal discussions are recent revelations from letters between kerr and nepalis released to me by the national archives a few weeks ago eight years after i requested them the letters were written in 1978 after kerr's resignation as governor general and while he was preparing his memoirs for publication and they again in this sort of drip feed of information from archival resources they again at every point tell us something new about the discussions happening within the palace and kerr at that time these are written in 1978 about the events of 75 they not only confirm that kerr's discussions with sir martin charters in the months before the dismissal actually took place even more troubling is that they show that the palace and kerr together agreed to keep kerr's exchanges as they call them kerr's exchanges with charter a secret by omitting any mention of them in kerr's memoirs the palace asked kerr to send them a final draft of his manuscript of his memoirs which he of course obliged and he wrote in a cover letter to the queen's private secretary that i have of course omitted any reference to the exchanges between sir martin charters and myself so his memoirs were duly filtered in concert with the queen's private secretary in what is surely the most disturbing royal whitewash of our history just as intriguing is that the palace returned kerr's manuscript with their own annotations and suggestions on it now again what an extraordinarily significant historical record that would be not only for our understanding of the of the dismissal but specifically for our understanding of the role of the palace and once again it's one that we cannot see the archives has denied access to those particular pages containing the palace's comments on kerr's manuscript and they have been removed from the file and so the historical secrets of the dismissal continued what all of these archival revelations have shown us is that the release of the entire unredacted correspondence between kerr and the queen is absolutely critical not only to our history but also to our standing as an autonomous nation in control of its own historical estate and that's the context in which the federal court action calling on the national archives to release the palace letters began at the heart of the case is the central question about whether these letters written between the governor general and the queen at a time of intense political upheaval our personal or commonwealth records that's that's the core question and from a purely common sense perspective the label personal is really difficult to accept how is it possible that formal written communications between the monarch and her representative which kerr himself describes as dispatchers and as part of his duty as governor general how can they ever be seen as personal although the federal court acknowledged what it called a clear public interest in the letters relating to what it said was one of the most controversial and tumultuous events in the modern history of the nation it found in favor of the archives of the palace letters our personal records effectively continuing the queen's embargo over them we know that kerr's letters were frequent even obsessive at times he wrote to the queen several times in a single day and there are dozens of letters written over just a few weeks we know from the court case that his letters included attachments being other people's letters telegrams newspaper articles he included political and legal commentaries about the political situation that was then unfolding and i think these untouched attachments may also be really important in understanding just which version of what was a highly polarized political situation kerr was providing to the queen did he for instance inform the queen about the secret role of justice mason did he tell her of his meetings with chief justice garfield barwick in defiance of witland's clear advice to the contrary did he reveal his secret telephone communications with the leader of the opposition malcolm frazier and did kerr tell the queen of the prime minister got whitland's decision to call the half senate election and in this sense what is not in the palace letters i think will be just as important as what is it's often claimed in support of the presumption of royal secrecy and that's what is really operating in this instance a presumption of royal secrecy it's often claimed that royal communications must be kept from the public in order to protect the much-vaunted claimed political neutrality you'll see that term often in relation to the monarch the political neutrality of the monarch and the governor general however as professor and to me has argued if neutrality can only be maintained by secrecy this implies that it does not in fact exist and that confidence in the monarchy would be undermined if its functioning were revealed and those of you are familiar with the guardians decade-long fight to secure the release of prince charles's spider letters which were letters written by prince charles to members of the lair government all of them he transpired on policy matters took the guardian a decade to have access to them will know that this assessment by anton me is absolutely right far from the palace remaining aloof politically neutral and disinterested in australian domestic political matters kerr's papers have already revealed that the palace was aware that kerr was considering dismissing widlam and was involved in his planning in terms of his concern for his own position months before the government was dismissed at our appeal against the federal court decision the full federal court was divided over the nature of the palace letters and in a split to one decision again ruled that the letters are personal and not commonwealth records however there was a strong dissenting judgment and this was from just as flick who presented a very different view just as flick held that the palace letters are commonwealth records and in fact that it would be as he called it difficult to conceive of documents which are more clearly commonwealth records and documents which are not personal property than the palace letters just as flick found that the palace letters concern what he called political happenings going to the very core of the democratic processes of this country now just yesterday i looked at what i think is a very important document that had been released by the archives only this month in it kerr describes the palace letters in some detail in fact it's greater detail than we've seen before and you're hearing about it here for the first time because i've only just looked at it what struck me at once is that kerr describes the significance of the palace letters to history and to archives in terms in effect that we're really talking about in this talk today he refers to what he terms the archival importance of the palace letters for the purposes of history most telling in my view is kerr's description of his own expectations regarding the future use of an access to the palace letters he says the palace letters were written quote with the conscious and deliberate thought that they would be preserved and would be part of the archives later available for historians later available for historians now these are not the words of someone who thought his correspondence with the queen was confidential or personal much less that it would be under the queen's lasting embargo and so i'd like to end tonight moving on from that what i think is a great inconsistency in the position being put over kerr's access i'd like to share with you something that has always been to me particularly and absolutely fundamentally perplexing about the palace letters as archives and it's this this is just a conundrum i can't work out somebody here might be able to have a discussion about it as personal records access to the palace letters is governed by an instrument of deposit and if the instrument of deposit sets out so john kerr's own conditions of access now the archives view is that an instrument of deposit is what it calls an undertaking an undertaking with the depositor to which it must adhere in the archive's own words when the archives accept such a collection that is a personal collection we undertake to adhere to arrangements agreed to with the depositor the instrument of deposit in other words is inviolable it cannot be broken and yet this is exactly what was done with kerr's instructions governing access to the palace letters just four months after kerr's death his instrument of deposit was changed giving the queen an effective final veto over their release and it was changed on the instructions of the queen herself kerr's original terms of access were that the release of the palace letters would come after 60 years as it was then now it's 50 but that to release them required consultation with the queen's private secretary not their approval this is a critical distinction between consultation and subject to the approval of which and it's this critical shift which gives the queen the lasting embargo over the public release which is currently in place now it's no secret that kerr wanted these letters to be made public not only from the material I looked at yesterday but he wrote that in his memoirs he stated publicly several times that he believed they would vindicate the version of events he presented in his memoirs well that raises some other questions given what we now know about the memoirs however he wanted them published that is that is something he made clear with kerr's much stated desire to see the letters released it's difficult to imagine that he would have supported the imposition of an effective enduring palace veto how is it then that kerr's personal instrument of deposit was changed after his death and how does this reflect the claimed personal status of the letters if those conditions can be changed by someone else in order to impose conditions which I would argue kerr himself did not support the strange imposition of this royal embargo by the queen herself over kerr's personal records and therefore over pivotal documents in our national archives highlights the lingering residual power of the crown which has been brought to light by the palace letters it's entirely fitting then that these fundamental questions of access and control over our archival records of the functions and powers of the governor general and of national autonomy and independence questions which go as just as flick said to the very core of the democratic process of this country will now be determined by australia's highest court according to australian law and not by decision of the queen thank you