‘Palace letters’ reveal the palace’s fingerprints on the dismissal of the Whitlam government

Independent Australia

Chris Wallace, University of Canberra

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.

The palace provided a specific nudge to Kerr on dismissing the government.
AAP/EPA/Facundo Arrizabalaga

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.

---

Read more:
‘Palace letters’ show the queen did not advise, or encourage, Kerr to sack Whitlam government

---

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?

---

Read more:
The big reveal: Jenny Hocking on what the ‘palace letters’ may tell us, finally, about The Dismissal

---

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.

Chris Wallace, Associate Professor, 50/50 By 2030 Foundation, Faculty of Business Government & Law, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

‘Palace letters’ show the queen did not advise, or encourage, Kerr to sack Whitlam government

AAP/EPA/Toby Melville

Anne Twomey, University of Sydney

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.

---

Read more:
The big reveal: Jenny Hocking on what the ‘palace letters’ may tell us, finally, about The Dismissal

---

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.

The Whitlam government was dismissed on November 11 1975.
AAP/National Archives of Australia

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.

Sir John Kerr.
AAP/National Archives of Australia

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.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

High Court ruling on ‘Palace letters’ case paves way to learn more about The Dismissal – and our Constitution

National Archives of Australia

Anne Twomey, University of Sydney

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.

---

Read more:
Explainer: what is the ‘palace letters’ case and what will the High Court consider?

---

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.

---

Read more:
Australian politics explainer: Gough Whitlam’s dismissal as prime minister

---

Professor Jenny Hocking.
AAP/James Ross

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.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.