Tag Archives: dismissal
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.
For more than four decades, the question has been asked: did the queen know the governor-general, Sir John Kerr, was about to dismiss the Whitlam government, and did she encourage or support that action?
The release of the “palace letters” between Kerr and the palace can now lay that question to rest. The answer was given, unequivocally, by the queen’s private secretary, Sir Martin Charteris, in a letter to Kerr on November 17 1975. He said:
If I may say so with the greatest respect, I believe that in NOT informing The Queen what you intended to do before doing it, you acted not only with perfect constitutional propriety but also with admirable consideration for Her Majesty’s position.
Certainly, Kerr had kept the palace up to date with the various developments in Australia. While governors-general usually communicate with the queen only three or four times a year during ordinary times, it is common during a crisis for updates on the political situation to be made every few days – particularly if there is a risk of the queen becoming involved or the exercise of a reserve power.
Drawing the palace into the crisis
In 1975, there were multiple issues that might have drawn the palace into the crisis.
First, there was the question of whether Kerr should exercise a reserve power to refuse royal assent to an appropriation bill that had been passed by the House of Representatives but not the Senate. Fortunately, Whitlam dropped this idea, so that controversy disappeared.
Then there was the question of whether state premiers would advise state governors to refuse to issue the writs for a half-Senate election, and whether Whitlam would then advise the queen to instruct the governors to issue the writs. This didn’t happen either, because Whitlam did not get to hold his half-Senate election. But the prospect was enough to worry the palace.
Next there was the issue of what to do with the Queensland governor, Sir Colin Hannah. Hannah, in a speech, had referred to the “fumbling ineptitude” of the Whitlam government. Hannah held a “dormant commission” to act as administrator of the Commonwealth when the governor-general was away.
Whitlam, contrary to the advice of both the Department of the Prime Minister and Cabinet and the Attorney-General’s Department, advised the queen to remove Hannah’s commission to be administrator.
Separately, the Queensland opposition petitioned for Hannah to be removed as governor, but that required the advice of British ministers, as Queensland was still in those days a “dependency” of the British Crown.
So the palace had to juggle advice on Hannah from two different sources.
A race to the palace
Another pressing question was what should be done if Whitlam advised Kerr’s dismissal. Kerr’s letters more than once referred to Whitlam talking of a “race to the Palace” to see whether he could dismiss Kerr before Kerr dismissed him.
Kerr saw these “jokes” as having an underlying menace. Kerr knew he didn’t have to race to the palace – he could dismiss the prime minister immediately. But he also knew, after Whitlam advised Hannah’s removal merely for using the words “fumbling ineptitude”, that Whitlam wouldn’t hesitate to act.
The letters also show Kerr had been told that while the “Queen would take most unkindly” to being told to dismiss her governor-general, she would eventually do so because, as a constitutional sovereign, she had no option but to follow the advice of her prime minister. This would inevitably have brought her into the fray in an essentially Australian constitutional crisis.
Kerr explained in a letter after the dismissal that if he had given Whitlam 24 hours to advise a dissolution or face the prospect of dismissal, there was a considerable risk Whitlam would advise the queen to dismiss Kerr. He wrote:
[…] the position would then have been that either I would in fact be trying to dismiss him whilst he was trying to dismiss me, an impossible position for The Queen, or someone totally inexperienced in the developments of the crisis up to that point, be it a new Governor-General or an Administrator who would have to be a State Governor, would be confronted by the same implacable Prime Minister.
Advice from the palace
The letters reveal much of Kerr’s thinking, but little from the palace. Charteris rightly accepted the reserve powers existed, but they were to be used “in the last resort and then only for constitutional and not for political reasons”.
Charteris stressed the exercise of such powers was a
heavy responsibility and it is only at the very end when there is demonstrably no other course that they should be used.
This did not give Kerr any “green light” or encouragement to act. No-one suggested to him that the end had come and there was no other course to be followed. That was for Kerr to judge, and rightly so, because the powers could only be exercised by him – not the queen.
Whether the end had come and there was no other course is essentially what continues to be debated today. Should Kerr have waited? Should he have warned Whitlam? Was another course of action available?
All of these questions may justly be debated. But, no, the queen did not direct Kerr to dismiss Whitlam. He was not encouraged to do so. He was only encouraged to obey the Australian Constitution, which is something we all should do.
Professor Jenny Hocking recently won her longstanding campaign for the National Archives of Australia to release the so-called “Palace letters” about the dismissal of Gough Whitlam in 1975. This is her account of that campaign.
In August 1975, speaking at a private dinner at Sydney’s Wentworth Hotel, Governor-General Sir John Kerr proudly described himself as “the Queen’s only personal representative in Australia with direct access to her”.
Kerr was a staunch monarchist, and what he saw as his “direct” access to the Queen was of great moment to him:
I am in constant communication with her on a wide variety of matters, on most of which I am communicating directly to her.
We now know just how constant that communication was. Kerr wrote frequently, at times several letters in a single day. There are 116 of his letters to the Queen, almost all of them sent through her private secretary, Sir Martin Charteris, containing extensive attachments including press reports, other peoples’ letters to Kerr, telegrams and articles. There are also 95 letters from the Queen to Kerr, all through Charteris.
These 211 letters in the National Archives of Australia, written during the entirety of Kerr’s tenure as governor-general and with increasing frequency after August 1975, constitute “the Palace letters”. They are without doubt the most significant historical records relating to the dismissal of the Whitlam government in November 1975. Yet, until last week’s landmark High Court decision, they had been closed to us by the archives, labelled as “personal” records and placed under the embargo of the Queen.
Aware of their immense historical significance, and with the support of a legal team working pro bono, in 2016 I launched a Federal Court action against the National Archives in an effort to secure access to the Palace letters.
It was not only the obvious importance of letters between the Queen and the governor-general, her representative in Australia, relating to Kerr’s unprecedented dismissal of the elected government that drove this case. It was also the importance of asserting the right of public access to, and control over, our most important archival records.
It took four years and a legal process through the Federal Court, the full Federal Court, and finally the full bench of the High Court of Australia – at which the federal attorney-general Christian Porter joined with the archives against my action. But in an emphatic 6:1 decision, the High Court ruled against the archives. It found the letters were not “personal” but rather Commonwealth records, and as such must now be available for public access under the provisions of the Archives Act.
Why it matters
This is an immensely important decision, overturning decades of archival practice that has routinely locked away royal records from public view as “personal”. It also provides a rare challenge to reflexive claims of “royal secrecy”, here and elsewhere.
Its implications will be felt broadly in other Commonwealth nations and potentially in the United Kingdom, where the Royal Archives are firmly closed from public access except with the permission of the monarch. Of equal importance is that the High Court’s ruling has brought the Palace letters firmly under Australian law, ending the humiliating quasi-imperial imposition of the Queen’s embargo over our archival records, and over our knowledge of our own history.
What made this case so important was the significance of original documents to the evolving history of the dismissal. A series of revelations in recent years, much of it from Kerr’s papers, has transformed that history and deeply challenged our previous understandings of the dismissal.
As a deeply contested and polarised episode, access to original records – as opposed to subsequent interpretations – was unusually significant. There could be no more significant records than the letters between the governor-general and the Queen regarding what the Federal Court described as “one of the most controversial and tumultuous events in the modern history of the nation”.
What the Palace letters might tell us
I first came across the Palace letters more than a decade ago, when I began exploring Kerr’s papers as part of the research for my biography of Gough Whitlam. When I sought access to them I was told they were “personal” papers -– “non-Commonwealth, no appeal”. This meant I could neither access them nor appeal that denial of access to the Administrative Appeals Tribunal. The only way of challenging the label “personal” was a Federal Court action, an onerous and prohibitive prospect.
A series of revelations from Kerr’s papers highlighted their importance and the travesty of their continued closure. These include: a personal journal Kerr wrote in 1980 in which he cites several of the letters and recounts his critical discussion with Prince Charles in September 1975 expressing concern for his own recall as governor-general if he were to dismiss Whitlam; extracts from some of the letters; and his frequent references to the letters in other letters to friends and colleagues. Perhaps the most crucial item of all was a handwritten note, “Points on Dismissal”, in which he refers to “Charteris’ advice to me on dismissal”.
There could scarcely be a stronger indication that the Palace was intensely involved with Kerr’s consideration of the possible dismissal of the elected government. This, along with other materials, suggest that at the very least, Kerr had drawn the Palace into his planning before the dismissal.
Kerr cites a letter to the Queen in August 1975 in which he raised the “possibility of another double dissolution”. Just why he would be raising this two months before supply had been blocked in the Senate, and when the prime minister had held a rare double dissolution just the previous year and was intending to call the half-Senate election which was then due, may be answered when we see the letters.
Kerr writes that his conversations with Whitlam “were reported in detail to the Queen as they happened” for several months before the dismissal itself. This is a simply extraordinary situation: the governor-general is reporting to the Queen his private conversations, plans, matters of governance, and meetings with the Australian prime minister, and this is kept secret from the prime minister himself.
This is the crucial context of secrecy and deception in which the Palace letters must be considered: that Whitlam knew nothing of these discussions because Kerr had decided on a constitutionally preposterous policy of “silence” towards the prime minister, who retained the confidence of the House of Representatives at all times.
It is this extensive communication through hundreds of letters to and from the Queen, when taken in the context of Kerr’s self-described “silence” towards his own prime minister, that shows Kerr’s aberrant perception of his vice-regal role as acting as “the Queen’s personal representative” while failing to consult his own prime minister.
As historian John Warhurst has noted, from what we already know of the Palace letters:
…the British crown was interfering in the 1975 dispute in ways that should offend anyone who wants Australia to be a fully independent nation … the Palace did not stand above the fray … Kerr consulted the Palace and took advice from the Queen’s secretary acting on behalf of the Queen.
Knowing our story, in full
The National Archives’s denial of access to the Palace letters has prevented us knowing the extent of that consultation and advice for too long. The High Court’s resounding rejection of the basis for that secrecy is an historic opportunity for the director-general of the archives, David Fricker, to make good his claim the archives is a “pro-disclosure organisation”, recognise the profound breach with the past the decision represents, and embrace the spirit of public access that underpins it by releasing all 211 of the Palace letters.
It’s time for an open reckoning with our past, a fully informed debate about the events of 1975, and an answer to the lingering questions over the role of the Queen.
No matter how unpalatable this story may be to some, it’s our story and we have a right to know it.
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.
This piece is republished with permission from Commonwealth Now, the 59th edition of Griffith Review. Articles are a little longer than most published on The Conversation, presenting an in-depth analysis on the relevance of the Commonwealth of Nations in today’s geopolitical landscape.
We will make better decisions on all the great issues of the day and for the century to come, if we better understand the past. – Gough Whitlam
The celebration of the “Queen’s birthday” in Australia is a perfect reflection of a fading, remnant, relationship. Commemorated in the Australian states as a public holiday on three different days – none of which is her birthday – and honouring an event of dubious significance, the “Queen’s birthday” reminds us that, despite our national independence, the symbolic ties of colonial deference remain.
The “Queen’s birthday” may seem a fitting if absurd genuflection to a powerless relic of a former time, and in itself confirmation that the Queen no longer has a role in post-dominion matters. But things are not always as they seem.
Neither sovereignty nor national independence flowed neatly from federation. The Commonwealth of Australia Constitution Act created Australia as a federation of the former colonies and a constitutional monarchy, with all the tension inherent in that term – between a democratic government chosen by the people and a monarchical head of state whose ultimate constitutional power stemmed solely from inherited aristocratic assumption and unchallenged legal privilege.
The gradual devolution of Australian autonomy appeared assured at the Imperial Conference of 1926. This affirmed the relationship between Great Britain and its dominions as being that of:
… autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown.
The critical qualifier in this proclamation of an imperial gift of national autonomy, equality and independence is this: “though united by a common allegiance to the Crown”.
The imperial assertion of continued dominion allegiance to the Crown was a stark counterpoint to the proclaimed national autonomy. Indeed, it undermined the very autonomy and equality of nations the conference so proudly affirmed.
Five years after the Imperial Conference, the Statute of Westminster gave statutory expression to the principles of equality established at the Imperial Conference and vested full legislative authority and independence in the “dominions”.
Nevertheless, it remained the case that some bills would continue to require the Queen’s assent to be passed into law. The Statute of Westminster also granted dominion ministers the right of direct access to the sovereign. This access had previously been available only indirectly through UK ministers and reflected their then incomplete post-colonial status.
A fight for independence
Yet, in reality, neither of these critical junctures in the evolving British–Australian relationship created the clear-cut path to national independence that these paternalistic statements of ceded imperial power might suggest.
Although the dominions were entitled to separate representation at the League of Nations and subsequently the United Nations, as made clear at the Imperial Conference, the cultural expectation of continued British primacy and Australian dominion subservience remained.
It can be seen in the British attitude toward the efforts of Australia’s minister for external affairs, H.V. Evatt, to champion the role of the smaller nations against the Great Powers at the San Francisco conference in 1945 that established the ground rules for the UN.
Evatt’s insistence that Australia would take its own independent position as an autonomous nation in these high-level international negotiations infuriated the British representatives at the fledgling discussions over the UN.
At a preliminary meeting of Commonwealth nations in London, British Prime Minister Winston Churchill had bemoaned Evatt’s defiant independent stance.
Describing the Commonwealth as “the third of the Great Powers”, Churchill argued that the Commonwealth could only maintain its influence by ensuring unity among members and speaking with one voice – and that one voice of course would be Britain’s, not Australia’s.
These expectations of British administrative, legal and political authority, based more in the established imperial mindset, behaviours and networks than an exercise of formal political control, remained powerful resistors to change throughout the 20th century.
The undercurrent of lasting imperial privilege and hierarchy proved to be a major obstacle in ending the complex web of residual colonial ties across legal, constitutional and political domains.
In particular, continued allegiance to the British Crown as the imperial condition of dominion nationhood was a political oxymoron. It cast an impossible constraint on the form of national autonomy, while Australian allegiance to the British Crown was superimposed on the representative model of parliamentary democracy.
The fundamental contradiction this established at the heart of the Australian polity remained largely dormant during the long years under the avowed Anglophile prime minister Sir Robert Menzies, until inevitably rupturing along the faultlines of divided allegiance – to the British Crown on the one hand and to Australian democratic governance on the other – with the 1972 election of the Whitlam Labor government.
Whitlam tries to loosen the ties
Gough Whitlam came to office with a core policy agenda of ending the residual colonial ties between Australia and Britain.
Although largely seen as ceremonial and symbolic, these colonial links were to be immensely significant in the trajectory of the Whitlam government and its dismissal threeyears later.
Whitlam moved rapidly on some of these. He ended the British honours system and introduced Australian honours, introduced an Australian national anthem to replace God Save the Queen, changed the Queen’s title by removing arcane references to God and Empire, and, in 1974, removed the words “God save the Queen” from the official proclamation dissolving parliament.
Eighteen months after his second election victory in the double dissolution of May 1974, Whitlam was peremptorily removed from office by the Queen’s representative in Australia, Governor-General Sir John Kerr, without warning and despite Whitlam maintaining a clear majority in the House of Representatives at all times.
Concerns were immediately raised over the possible role of Buckingham Palace and British authorities in this unprecedented vice-regal action. The suspicion that the Queen knew more about Kerr’s intentions than has ever been publicly acknowledged has grown in recent years with the Queen’s embargo of her correspondence with Kerr at the time of Whitlam’s dismissal.
Of all the residual colonial ties, the one that Whitlam found particularly abhorrent, and was determined to sever, was the right of appeal from some state supreme courts to the Privy Council. In his view:
No people with an ounce of self-respect would allow decisions made by their own judges … to be overruled by judges sitting in another country.
Whitlam described this as an “absurd” and “ludicrous” situation. Yet his efforts to end remaining state Privy Council appeals were stymied at every point.
Whitlam’s attorney-general, Lionel Murphy, reported he had struck nothing but intransigence, non-co-operation and obstruction from the British authorities in the government’s moves to implement this core policy.
Returning from his first visit to England as prime minister in 1973, Whitlam was clearly frustrated by the UK’s reluctance to end colonial ties when he told reporters, more in hope than confidence:
We are a separate country from Britain. We are an entirely independent country.
A tense meeting with Edward Heath, the British Conservative prime minister, the following year saw little change. An exasperated Whitlam again declared that:
All these colonial relics are incompatible with the position of Australia as a separate, sovereign country.
When the Whitlam government was removed from office by Kerr, three years later, these state-based appeals to the Privy Council remained, unchanged.
What we know about the Palace’s role
The archival records of the British Foreign and Commonwealth Office (FCO) covering these official visits are at once illuminating and disturbing. They show a troubling lack of respect for such a significant engagement with a senior member of a new Australian government.
Murphy’s visit was, after all, the first official visit by any of Whitlam’s cabinet to England. And yet, even before his arrival, the FCO files show that British authorities viewed Murphy, and indeed the Whitlam government itself, as a troublesome interloper whose presence they barely tolerated and whose policy concerns they did not share.
More than mere intransigence, or even simply a refusal to accept the legitimacy of the Whitlam government, these archival records disclose profound breaches of confidence, secrecy and even deception of Whitlam by the FCO, the British High Commission in Canberra, and the Queen’s private secretary Sir Martin Charteris. They show a partisan pattern of disrespect for and undermining of the new Labor government.
Most significantly, far from any equality of national status, “in no way subordinate one to another” professed at the Imperial Conference, these files reveal the FCO’s brazen presumption – “our right as the colonial power” – to deceive the prime minister, to liaise in secret with the conservative states and, ultimately, to intervene in Australian politics to prevent the government holding a half-Senate election to resolve a stalemate in the Senate over the passage of supply bills.
From October 16, 1975, opposition senators refused to vote on the government’s supply bills, which provided the annual funds for government expenditure. In the new political vernacular, supply was “blocked”.
Calling the half-Senate election, which was then due, had been Whitlam’s resolution to this unprecedented situation since the day supply was first blocked. The Labor caucus had voted unanimously in support of Whitlam calling the half-Senate election “at a time of his choosing”.
The FCO files document a rapid breakdown and reversion to imperial imbalance in the British-Australian administrative relationship that began with the election of the Whitlam government and ended with its dismissal. They reveal a deep suspicion of the new government that quickly led to secrecy, deception and to routine breaches of the highest levels of confidentiality by both the British prime minister’s office and the Palace throughout the terms of the Whitlam government.
Most alarming is that the FCO files also reveal overt British involvement in Australian politics in the weeks before the dismissal – specifically with the half-Senate election due at that time and which Whitlam was to call on November 11, 1975, to end the blocking of supply in the Senate.
Kerr’s papers in the National Archives of Australia provided the first glimpse of the Palace’s role in the dismissal.
Although there are some who continue to claim that the Palace was not involved, this has increasingly become more a matter of faith than fact. Revelations from Kerr’s papers, the Palace letters, and the FCO’s files have rendered that position untenable.
We now know that Charteris wrote to Kerr in October 1975 to discuss action the Palace would take if Whitlam became aware of Kerr’s plans to remove him from office and sought to recall him as governor-general. Charteris told Kerr that the Palace would, in that instance, “try to delay things”.
This communication between the Queen’s private secretary and the governor-general over the position of the governor-general himself is politically and constitutionally shocking. It reveals the Palace to be in deep intrigue with Kerr, to protect his tenure as governor-general, in the weeks before the dismissal – unknown to Whitlam.
It was also a breathtaking rupture of the vice-regal relationship. At the heart of this relationship in a constitutional monarchy is that the appointment of the governor-general is made by the Queen on the advice of the Australian prime minister alone. This has certainly been the case since 1930, when King George V accepted Labor prime minister James Scullin’s advice to appoint Sir Isaac Isaacs as governor-general.
Despite being vehemently opposed to Isaacs’ appointment, the King told Scullin:
… being a constitutional monarch I must, Mr Scullin, accept your advice.
For the Queen’s private secretary to intervene with Kerr himself on the question of the governor-general’s tenure was a staggering breach of that relationship.
From this point on, knowing that Kerr was considering dismissing Whitlam and concerned that Whitlam might then recall him, and having agreed to a course of action in order to protect Kerr’s position should Whitlam do so, the Palace was already involved in the dismissal.
The fight over the Palace letters
The letters between Charteris and Kerr are part of the so-called “Palace letters”. This is the secret correspondence between the governor-general and the Queen, her private secretary, and Prince Charles, in the weeks before the dismissal.
Although these letters are among Kerr’s papers and held by the National Archives in Canberra, they are closed to us. This is because the Palace letters are considered “personal” and not official “Commonwealth” records. This is despite Kerr’s own description of them as his “duty” as governor-general, and despite their obvious significance to our history.
The Palace letters are embargoed until 2027, “at her Majesty the Queen’s instructions”, with the Queen’s private secretary retaining an indefinite veto over their release even after this date. It is quite possible, then, that they will never be released.
The Palace letters are extraordinarily significant historical documents. They are contemporaneous real-time communications between the Queen and her representative in Australia, written at a time of great political drama, and are a vital part of our national historical record.
At the heart of this still-secret vice-regal correspondence was the prospect of the dismissal of the Whitlam government, which Kerr had already raised in September 1975 with Prince Charles and Charteris.
The designation of the Queen’s correspondence with her representative in Australia as “personal” means they do not come under Australia’s Archives Act, which relates only to official “Commonwealth records”.
And so, in a rather neat catch-22, the decision by the National Archives to deny access to the correspondence cannot be appealed to the Administrative Appeals Tribunal.
There is only one way to challenge this decision: through a Federal Court action, which is a complex, expensive and onerous proposition. This is clearly an area in need of legislative reform to ensure a viable appeal process is in place for records described as “personal” in this way.
In an effort to secure the release of the Palace letters, I launched an action against the National Archives in the Federal Court last year, with a legal team working on a pro-bono basis and supported by a crowdfunding campaign. This concluded in September 2017; the decision is anticipated within months.
At the heart of the case is this central question of just what constitutes “personal” as opposed to “Commonwealth” records. Lead barrister Antony Whitlam (Gough Whitlam’s eldest son) argued to the court that “personal records” would be records covering matters “unrelated to the performance of Sir John’s official duties”, and that this could not extend to correspondence between the Queen and her representative in Australia prior to the dismissal. He said:
It cannot seriously be suggested that there was a personal relationship between the Queen and Sir John Kerr.
It is difficult to see, from common sense alone, that the correspondence between the Queen and her representative in Australia could in any way be seen as “personal”. The precise legal points on which the question of Palace letters’ status will turn – whether as personal or Commonwealth records – will be a different matter.
The case itself has brought to light a significant amount of new historical and contemporary material on the relationship between the Queen and the governor-general and its implications for Australian national sovereignty.
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 not as a quasi-imperial grant of release by the Queen.
This alone is an historic and important outcome that ends one of the few remaining “colonial relics” that continue to deny us access to historical documents relating to the Queen about a historical episode also relating to the Queen.
The continued embargo by the Queen of the Palace letters and the revelations from the British archives of the FCO all point to the lingering imperial power that comes from an incomplete severance of colonial ties. They show above all that the residues of colonialism, the “imperial aftermath” in Whitlam’s words, can never be fully extinguished until Australia becomes a fully independent republic.
It is surely absurd that in the 21st century we can still see the Australian prime minister giving an Australian knighthood to the Queen’s consort, Prince Philip, and that the governor-general, the Queen’s representative in Australia, can still dismiss an elected government on the basis of claimed “reserve powers” derived from, and in the name of, the Queen.
As an independent autonomous nation, Australia has a right to know its own history, including and in particular the records pointing to British involvement in that history, if we are to ensure such a profound rupture in our political structures and denial of our national sovereignty cannot happen again.
This troubling time in our history and in the Australian–British relationship is also critical to our decisions as we recommence the debate over the inevitable move toward a republic.
The fundamental issues to be confronted in that debate will relate absolutely to the events surrounding the dismissal of the Whitlam government: how to protect the institutions of democratic parliamentary governance, how to secure the formation of government in the House of Representatives, and what the powers of the new, Australian, head of state should be.
You can read other essays from Griffith Review’s latest edition here.
The Conversation is running a series of explainers on key moments in Australian political history, looking at what happened, its impact then, and its relevance to politics today.
The dismissal of the Whitlam government provided one of the biggest political shocks in Australian history. It put on open display vice-regal powers that most did not know existed, and tested Australians’ understanding of their own Constitution and political system.
On October 16, 1975, the Senate resolved that it would not pass supply until the Whitlam government agreed to call a general election. This meant the Commonwealth would soon run out of money to pay public servants, provide pensions, pay its contractors, and provide services. The Whitlam government decided to tough it out in the hope the Coalition opposition would collapse.
Because the Christmas holidays were approaching, the last day to initiate a pre-Christmas election was November 13, 1975. If that deadline was missed, there would potentially be months of economic chaos with no money to run the government and pay salaries or pensions until February.
On the morning of November 11, Opposition Leader Malcolm Fraser told Gough Whitlam the Opposition would pass supply if Whitlam agreed to hold an election for both houses in May or June 1976. Whitlam refused.
Instead, Whitlam went to the Governor-General, Sir John Kerr, to seek a half-Senate election in December. This would not have been likely to resolve the impasse, because any new Senate would not have taken office until July 1 the following year (apart from the territory senators).
When Whitlam declined to request a general election, Kerr exercised his reserve powers by dismissing Whitlam and his government from office. He then appointed Fraser as prime minister on the condition that he secure the passage of supply, advise the dissolution of both houses of parliament, and call an election in December.
Kerr also stipulated that Fraser’s government must only be a caretaker government that would not make any major appointments or undertake any inquiries or investigations into the Whitlam government. The Senate passed supply, and both houses were immediately dissolved.
It was then left to voters in the election to decide who should govern. The Whitlam government was comprehensively defeated, and the Fraser government was elected to office.
What was its impact?
The reaction was relief for some, and outrage for others. The public and the media, being unfamiliar with constitutional history and the role and powers of vice-regal representatives, saw the Dismissal as unprecedented and shocking.
A martyrdom narrative was constructed – that it was only ever Labor leaders who were dismissed (Whitlam and former NSW premier Jack Lang in 1932), and it was always done by the conservative establishment through undemocratic upper houses. Conspiracy theories flourished, with fingers being pointed at the CIA, the Queen, and the banks, amongst others.
That Kerr had sought advice from the High Court’s chief justice, Sir Garfield Barwick, albeit after Kerr had already made up his mind to dismiss Whitlam, was seen as adding to a conspiracy, because Barwick had previously been a Liberal minister.
Collective amnesia was applied to the fact that such things had happened before. Chief justices had advised governors-general and governors on almost every constitutional controversy since Federation.
Labor had blocked supply in state upper houses before, resulting in the governor, after consulting the chief justice, requiring the resignation of the conservative premier – even when he held a majority in the lower house. It had long been the case that if supply could not be obtained, the only options were resignation, an election, or dismissal (sometimes disguised as a forced resignation).
In 1975, the Speaker asked the Queen to intervene and restore the Whitlam government. In response, the Queen’s private secretary pointed out that the power to appoint and remove the prime minister and dissolve parliament was held by the governor-general, so she could not act.
Many people were influenced by the events of 1975 to support a republic, due to their objection to an unelected representative of the Queen dismissing an elected government that had majority support in the lower house.
Others saw 1975 as revealing the importance of the Senate’s power to block supply, and the need for the reserve powers of the governor-general to resolve a crisis.
All the major participants in the 1975 dismissal were damaged by it. Whitlam was never able to form a government again. Kerr was publicly vilified and led much of his later life outside Australia.
Although he became prime minister, Fraser found his government’s legitimacy undermined by the way it had obtained office, resulting in it being more timid and ineffective than it might otherwise have been.
What are its contemporary implications?
One salutary consequence has been that both governments and oppositions have been more wary about taking matters to extremes, preferring to let conflicts be resolved in the ordinary course by elections.
The Dismissal soured politicians’ taste for brinkmanship. It revealed the likely consequence of a loss of political legitimacy.
Another somewhat ironic consequence is that while the Dismissal fuelled the republican movement, it has also undermined it. The republican model with most public support in Australia is that of a head of state directly elected by the people.
To avert the prospect of a directly elected head of state undermining the indirectly elected prime minister and destabilising the system of government, many consider it would be necessary to remove or codify the powers of the head of state. Yet the ghosts of 1975 have stymied attempts to do so, frustrating any consensus towards a republic.
Harking back to Whitlam’s famous words on the steps of Parliament House, nothing might have saved the governor-general – but the Dismissal appears to have saved the Queen, at least for now.