Category Archives: Elizabeth II
The “palace letters” show the Australian Constitution’s susceptibility to self-interested behaviour by individual vice-regal representatives. They also reveal the vulnerability of Australian governments to secret destabilisation by proxy by the Crown.
They reveal a governor-general, fearing his own dismissal, succumbing to moral hazard, and the British monarch’s private secretary encouraging him in the idea that a double dissolution was legitimate in the event a government could not get its budget bills passed.
The letters confirm the worst fears of those who viewed Governor-General Sir John Kerr’s sacking of the Whitlam government as a constitutional coup. They reveal Kerr shortened by at most a mere three months the resolution of the crisis created by the conservative Malcolm Fraser-led opposition’s refusal to pass the government’s budget bills, compared to Prime Minister Gough Whitlam’s own timetable shared with Kerr.
The correspondence shows Kerr was privy to Whitlam’s plan to hold a double-dissolution election in February 1976 if all other avenues, including a half-Senate election, failed to secure passage of the budget beforehand. Whitlam candidly told Kerr he would be replaced as governor-general if he obstructed that plan. This introduced the element of moral hazard that saw Kerr take a reckless and self-interested route in ending the crisis rather than the steadier one privately put to him by Whitlam – one that Kerr could have, had he chosen, quite properly facilitated.
Crucially, the palace provided a specific nudge to Kerr in the direction of dismissing the government as a solution. It did so by highlighting one expert’s view that Kerr could secure an election while saving his own position as governor-general.
A September 24 1975 letter from the queen’s private secretary, Sir Martin Charteris, to Kerr pointed him to Canadian constitutional law expert Eugene Forsey’s opinion that:
[…] if supply is refused this always makes it constitutionally proper to grant a dissolution.
In such correspondence, the queen’s private secretary is understood as speaking for the queen herself. As such, this could be interpreted as the monarch providing not just comfort but actual encouragement to the governor-general in his sacking of the government.
By adding his point about Forsey as a handwritten postscript to the letter, Charteris created a degree of ambiguity on this score, giving rise to a potential argument that it was Charteris’s personal view and not that of the queen.
But this should be read in the context of the overall correspondence in the year leading up to The Dismissal. In these letters, Kerr repeatedly canvasses the opposition’s potential blocking of supply, the likely resulting constitutional crisis and his difficulties in that context. There is, notably, no counterveiling call from the palace to let the legitimately elected prime minister see his plan through, even though Kerr had conveyed Whitlam’s plan to the palace.
In a crucial letter to Charteris on September 30, Kerr outlined Whitlam’s privately proposed electoral path to a resolution.
In the event the opposition continued to block the budget bills, Whitlam wanted to hold a half-Senate election. After that the government would again put the budget bills to the Senate. Should the opposition continue to block them, Whitlam planned a double-dissolution election. Kerr relayed to Charteris Whitlam’s view that it “could not take place until February 1976”.
Why didn’t Kerr co-operate with Whitlam to implement this relatively speedy path to resolution of the crisis? The answer likely lies in Whitlam’s candour in telling Kerr he would ask the queen to replace Kerr should he not accede to the plan.
Since the letters through Charteris also confirm the queen’s intention, unreservedly, to accept Whitlam’s advice to sack Kerr should she be asked to do so, Kerr knew this threat to be real and increasingly immediate.
The question is, since the queen made clear through Charteris she would uphold Australia’s constitutional convention that the monarch follow the prime minister’s advice, why would her representative, Kerr, not simply do the same with regard to Whitlam’s plans for the crisis’s resolution?
This is the note missing from the palace side of the correspondence – an absence against which Charteris’s handwritten postscript pointing Kerr to the Forsey opinion that “dissolution” was a legitimate option when governments fail to get their money bills passed is stark.
Forsey was later a strong public supporter of Kerr’s sacking of the Whitlam government. No wonder the palace fought to stop these letters being released.
High Court ruling on ‘Palace letters’ case paves way to learn more about The Dismissal – and our Constitution
The High Court has ruled that Sir John Kerr’s correspondence with the queen comprises “Commonwealth records”. This means access to them is now in Australian hands and can no longer be vetoed by the private secretary to the queen.
This correspondence, which includes Kerr’s briefings to the queen on the political crisis prior to the dismissal of the Whitlam government on November 11 1975, and his explanation to her afterwards of why he exercised this power, have so far been kept from public view.
The High Court’s decision opens the possibility that we will finally see the last pieces of factual evidence about The Dismissal – revealing the concerns and reasoning of the governor-general, as events occurred, without the gloss of hindsight.
It could even allow this festering wound in our political history to be healed, once all the information has been revealed. But it depends now on what the National Archives does next.
How were these letters treated until now?
Until now, the National Archives has claimed all correspondence it holds between governors-general and the queen, even when written in their official capacities, is “personal” and not a “Commonwealth record”.
This means there was no legal obligation on the National Archives to provide public access to these letters. Instead, the National Archives had stated it could only release these documents in accordance with the conditions placed on them by the person who lodged them with the National Archives.
But it let those conditions be changed on the instructions of the queen in 1991 so that her private secretary and the secretary of the governor-general held a veto over the release of any such correspondence.
In the case brought by academic Jenny Hocking against the National Archives, the High Court held by a majority of six to one that the letters between Sir John Kerr and the queen were created, received and held as institutional documents by the “official establishment of the Governor-General” before being transferred to the National Archives by the official secretary to the governor-general in his official capacity. This level of official control over them was enough to make them “Commonwealth records”, even if the governor-general still held ownership rights over them (which the majority said it did not need to decide).
In their joint judgment, Chief Justice Kiefel and Justices Bell, Gageler and Keane said they could not see how the correspondence could be described, however “loosely”, as “private or personal records of the Governor-General”.
They said it could not be supposed that Kerr could have taken the correspondence from the governor-general’s official establishment and destroyed or sold it.
Justice Gordon thought even if Kerr did have property rights in the original documents, he gave up any claim to them when they were deposited with the National Archives. Justice Edelman agreed the correspondence between the governor-general and the queen was “created or received officially and kept institutionally”.
Only Justice Nettle concluded these letters were personal communications between Kerr and the Queen, and were not Commonwealth records.
Does this mean we get to see the letters now?
The court did not order that the letters be publicly released. Instead, it ordered the director-general of the National Archives reconsider Jenny Hocking’s request for access to the correspondence held by the archives, treating them as Commonwealth records.
Section 31 of the Archives Act 1983 requires the National Archives to give public access to any Commonwealth record that it holds that is within the open access period and is not an “exempt record”.
The correspondence between Kerr and the queen has been in the “open access period” since 2006/2007. The only question that remains is whether the director-general will now claim that the correspondence is comprised of “exempt records”.
Section 33 of the Act lists a number of exemptions. These include documents that could reasonably be expected to cause damage to international relations, or where disclosure of matters in the record would constitute a breach of confidence.
The damage that might be caused by the release of documents necessarily diminishes over time. So even if these exemptions are claimed, consideration would have to be given to whether they remain applicable, given the age of the documents.
The director-general of the National Archives responded to the High Court’s decision by stating the
“National Archives is a pro-disclosure organisation” that operates on the basis of making records publicly available “unless there is a specific and compelling need to withhold it”.
It will be interesting to see what “compelling” needs it might identify.
Are there any wider implications of the decision?
The High Court’s decision will also affect the release of correspondence by other governors-general. The release of Lord Casey’s correspondence with the Queen was recently blocked by Buckingham Palace, which stated it would refuse access to any correspondence with the queen until at least five years after her death, and then only if the private secretary to the new monarch agrees. That veto has now been destroyed by the High Court.
So not only is Kerr’s correspondence with the queen liable to be opened, but also the correspondence by all other governors-general with the queen, when it is in the “open access period” and subject to any exemption.
That may mean we get a better idea of how the roles of the governor-general and the queen operate under our Constitution, which would be a good thing.
George VI Crowned King of the United Kingdom and the British Commonwealth
Though reigning as king since the 11th December 1936, King George VI was not officially crowned until this day in 1937. His reign lasted until his death on the 6 February 1952, when he was succeeded by the current queen, Elizabeth II.