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Precedent (Australian Lawyers Alliance) |
ROYAL SECRETS AND THE WHITLAM GOVERNMENT DISMISSAL
By Emeritus Professor Jenny Hocking
For 45 years, hundreds of letters between the Queen and the Governor-General Sir John Kerr relating to Kerr’s unprecedented dismissal of the Whitlam Government were kept under lock and key in the National Archives of Australia (Archives), closed to the Australian public and lost to our history under the embargo of the Queen. After a four-year legal battle these ‘Palace letters’ were released in full in July 2020, against the wishes of the Queen, the Archives and the federal Government, following the High Court’s 6:1 decision in the landmark case Hocking v Director-General of the National Archives of Australia (Palace letters case).[1]
In a first among Commonwealth nations, the argued ‘convention of royal secrecy’ that had kept royal documents out of public view and under the control of the Palace had been successfully challenged. The implications of this post-colonial legal effrontery for our history and for transparency are immense, beginning with the letters themselves and extending to the vice-regal communications of other Australian governors-general, and to any Commonwealth archives where royal correspondence is held.
A PROFOUND AND ENDURING SIGNIFICANCE
The success of the Palace letters case has brought the role of the Monarch and the Palace into public view and into the considerations of history, as it should be. This is a profound and enduring significance.
The Palace letters are the most important addition in decades to the historical record about the dismissal of the Whitlam Government. There are 212 letters between Kerr and the Queen – through the Queen’s private secretary, Sir Martin Charteris – covering the entirety of Kerr’s term in office from July 1974 to December 1977 and comprising 1,200 pages in total. Kerr’s letters are more frequent and also contain voluminous attachments. Not since the revelation of the protracted secret role of High Court Justice Sir Anthony Mason as Kerr’s ‘guide’ and confidante ‘fortifying me for the action I was to take’, as Kerr described it, has archival material so comprehensively recast the history of its time.[2] We only know about Mason’s role, which extended to drafting a letter of dismissal for Kerr, because of the public access to Kerr’s papers I revealed in 2012 in Gough Whitlam: His Time.[3] The revelations from Kerr’s papers are the quintessential reason why all history should be public history.
PATH TO THE HIGH COURT DECISION
The release of the Palace letters was no moment of archival largesse or sudden concern for history and transparency – far from it. The letters were released only because the Archives was forced to release them following the High Court’s decision in the Palace letters case. It had fought against doing so for decades.
The stated reason for the Archives’ closure of the letters was simple – that the letters were ‘personal’. As ‘personal’ records the letters were beyond the reach of the Archives Act 1983 (Cth) (Archives Act), which applies to Commonwealth records only, and were not subject to its open access provisions. Instead, they were governed by their own ‘Instrument of Deposit’ which, according to the Archives, had been set by Kerr himself but which, it was made clear during proceedings, had in fact been set by the Queen. The label ‘personal’ was a sophistry, a construction reflecting the presumption of ‘royal secrecy’ that had held over royal communications for centuries and which the Archives unquestioningly adopted.
Legally, the categorisation of ‘personal’ presented me with an impenetrable Catch-22 when the Archives denied my application for access. I could not appeal to the Administrative Appeals Tribunal since that was the mechanism available under the Archives Act and personal records do not come under that Act. The only means to challenge the Archives’ decision was a Federal Court action – an onerous path for a self-funded litigant historian, and one made even more so by the infallible circularity of ‘royal secrecy’.
Here’s the thing about royal secrecy: it’s impossible to challenge, precisely because it’s secret. How can a case be mounted and arguments put forward about the inappropriate closure of records when we don’t know what’s in them, and we can’t know what’s in them unless the case to open them succeeds? It has been the perfect means of ensuring perpetual royal control over the historical record. Until now.
The opportunity to challenge the Archives’ decision arose through a rare confluence of factors: detailed historical research into the letters, together with a legal team willing to work on a pro bono basis to seek their release. The team comprised Antony Whitlam QC at trial and Bret Walker SC at the Federal Court Appeal and the High Court, with Tom Brennan SC acting throughout the case, instructed by Corrs Chambers Westgarth. A crowd-funding campaign ran alongside the case to ensure that non-legal costs were covered.
Much of the secrecy around the Palace letters had already been broken down through the revelations in Kerr’s papers, in the UK Archives, and elsewhere.[4] Every part of this vast range of archival and other materials indicated that the letters were in no way personal. These historical documents, which included extracts from some of the letters and Kerr’s 1980 Journal, would be central to the case and were submitted, together with two chapters from my book The Dismissal Dossier, in our submissions to the Federal Court when the case commenced in 2016.[5]
It was difficult to imagine that letters between those who were at the apex of a constitutional monarchy and which, as the Archives conceded, ‘address[ed] topics relating to the official duties and responsibilities of the Governor-General’ during a time of unprecedented political upheaval, could in any way be ‘personal’.[6] Antony Whitlam QC observed in the Federal Court that ‘it couldn’t seriously be suggested that there was a personal relationship between the Queen and Sir John Kerr’.[7]
At the heart of my case was the central question of whether the Palace letters were ‘personal’ as the Archives claimed, or ‘Commonwealth records’. The answer rested in turn on the definition of Commonwealth records as a question of ownership – whether by the Commonwealth[8] or the Kerr family. Buckingham Palace took a keen interest in the case from the outset, insisting to the Governor-General’s official secretary that it was essential the letters remain secret ‘to preserve the constitutional position of the Monarch and the Monarchy’.[9] This correspondence formed part of the submissions presented by the Archives’ legal team arguing against the letters’ release, led by Thomas Howe QC and the Solicitor-General Stephen Donaghue QC.
In March 2018, in the Federal Court Griffiths J dismissed my application and found for the Archives, determining that the letters were ‘personal’ and effectively continuing the Queen's embargo. Nevertheless, Griffiths J acknowledged the ‘clear public interest’[10] in the Palace letters, relating to ‘one of the most controversial and tumultuous events in the modern history of the nation’.[11] That acknowledgment of clear public interest for what was essentially an issue of the ‘right to know’ proved important in securing a protective costs order from the Court. This minimised a major financial barrier to continuing the case and, equally important, recognised public access to historical records as a significant public interest matter.
In February 2019, the Full Federal Court upheld Griffiths J’s judgment in a 2:1 decision. Justice Flick’s powerful dissent bristled at the very notion that the Palace letters could be considered ‘personal’, asserting that it was ‘difficult to conceive of documents which are more clearly “Commonwealth records” and documents which are not “personal” property’ than these.[12] The letters, Flick J stated, concern ‘“political happenings” going to the very core of the democratic processes of this country’.[13]
By the time the case reached the High Court in 2020, the then federal Attorney-General Christian Porter had joined with the Archives in contesting the case, and agreed to meet 25 per cent of the Archives’ costs from that point. It would be something of an understatement to say that we faced a formidable institutional barrier in seeking the release of the Palace letters.
In May 2020, after four years of legal action, the High Court ruled in a 6:1 decision that the Palace letters are not ‘personal’ but are Commonwealth records subject to the terms of the Archives Act. The Court’s emphatic ruling was a stark rejection of the Archives’ claim that the letters were ‘personal’: ‘we cannot see how the correspondence could appropriately be described, however “loosely”, as “private or personal records of the Governor-General”’.[14] The High Court ordered the Archives to reconsider my application for access which it had rejected four years earlier, and also instructed the Archives to pay my costs. The Archives had fought against the public release of the Palace letters every step of the way, to a total cost of almost $2 million, leaving ‘the Archives’ claims to be a “pro-disclosure” organisation in tatters’.[15]
CONTENT OF THE LETTERS
The Palace letters were released two months later, finally giving the public an insight into what the Queen knew of Kerr’s decision to dismiss Whitlam, and when she knew about it. The letters did not disappoint. They provide an exceptional window on the vice-regal relationship during one of the most controversial and divisive episodes in our political history. Their significance cannot be overstated.
A striking feature is Kerr’s obsequious, deferential tone, and his need for royal approbation for even the most banal matter. Should ‘the curtesy by ladies’ continue in his vice-regal presence? he asks Charteris. Should there be four or six bars in the vice-regal salute? Should he wear ‘full morning dress and decorations’ to his swearing-in? (‘You were right to wear morning dress’, Charteris replied, even though the Prime Minister had suggested lounge-suit.) Were his letters too long, too detailed, too frequent?[16] Nothing, it seemed, was too small, too inconsequential, too humiliating, for Kerr to seek the royal imprimatur. Former Prime Minister Malcolm Turnbull describes Kerr’s ‘sycophantic grovelling’ as ‘stomach churning’.[17]
Even more concerning is that Charteris engaged with Kerr on these matters: from petty questions of vice-regal dress and protocols to the defining element of the dismissal – the existence and use of the reserve powers. Turnbull writes that he ‘had expected Sir Martin would reply with little more than a brief polite acknowledgement. [But] ... Charteris and Kerr conferred on the political and constitutional circumstances of the time in considerable detail.’[18]
Despite the essential political neutrality of the Queen, purportedly the bedrock of a Constitutional monarchy in a parliamentary democratic structure, the letters show that the Queen engaged in intensely political discussions with Kerr, all of this secret from the Prime Minister, Gough Whitlam. Most significant in the months before the dismissal is that the Queen knew that Kerr was considering dismissing the Government, and the clear support the letters show for the direction he was taking, ‘providing not just comfort but actual encouragement to the governor-general in his sacking of the government’.[19] Turnbull similarly writes that ‘Kerr made it very clear to Charteris that he was contemplating dismissing Whitlam and Charteris did nothing to discourage him. In fact, some of his correspondence can be read as encouraging him to do so.’ [20]
The Palace letters have dispelled the claim that the Palace was not involved in the dismissal. It was. And it fought for decades to ensure that this involvement was not known. To continue to claim otherwise is now ‘unsustainable’, as Professor Frank Bongiorno concludes; ‘[t]he Palace was indeed a player’.[21]
‘Prince Charles told me a good deal of his conversation with you and in particular that you had spoken of the possibility of the Prime Minister advising The Queen to terminate your Commission with the object, presumably, of replacing you with someone more amenable to his wishes. If such an approach was made you may be sure that The Queen would take most unkindly to it.’[25]
These are powerful words to a Governor-General who is considering dismissing the Government. To quote Turnbull again, ‘This advice no doubt reinforced Kerr in concluding that to forestall any risk of Whitlam sacking him, he would need to give him no, or very little, warning of his intention.’[26] By failing to warn Whitlam, Kerr breached a fundamental duty of the Governor-General, described by Bagehot as the right of the Crown, ‘to be consulted, to encourage and to warn’.[27] Even Sir Anthony Mason later acknowledged the enormity of this failure to warn, claiming to have told Kerr, that ‘if he did not warn the prime minister, he would run the risk that people would accuse him of being deceptive’.[28] Yet in this exchange the Queen had not only expressed a political view, but a view critical of the Prime Minister and entirely supportive of a rogue Governor-General contemplating the dismissal without warning of an elected Government and Prime Minister – a Prime Minister who retained the confidence of the House of Representatives at all times.
This was a letter that, quite simply, should never have been written. Charteris should have maintained the asserted strict ‘political neutrality’ of the Crown essential to a constitutional Monarchy, to which Buckingham Palace claims the Queen adheres.[29] Instead, the Queen had expressed a view antithetical to that of the Prime Minister whose advice she was bound to follow. The 1930 Imperial Conference had described ‘the constitutional practice that His Majesty acts on the advice of responsible Ministers’, with specific reference to the tenure of a Governor-General.[30]
Charteris’ response is, in this context, quite shocking. The major discussion of the possible dismissal of the Government began in September 1975, weeks before the opposition Coalition senators deferred a vote on Supply. On 20 September, Kerr raised the prospect of the Prime Minister refusing to call an election and noted that in such a circumstance he ‘may have to find someone who will’.[31] In his reply, Charteris, who was not a lawyer, added in his own hand a crucial, and contentious, note:
‘P.S. I suppose you know Eugene Forsey’s book “The Prerogative of the Dissolution”? I believe he lays it down as a principal [sic] that if supply is refused this always makes it constitutionally proper to grant a dissolution. MC.’[32]
Forsey was a Canadian expert on the reserve powers and a ‘stalwart upholder of the prerogative of the Crown’.[33] However, his knowledge of the Australian situation was deeply flawed. He was unaware even of the existence of a half-senate election, and ‘could find no mention of such an election in the Australian constitution’.[34] Forsey later conceded to Kerr that the half-Senate election had ‘puzzled me completely’.[35]
Given that the half-Senate election, which was due at that time, was always Whitlam’s response to the blocking of Supply, Forsey’s ignorance of it makes Charteris’ recommendation of him all the more astounding. It is precisely why the Governor-General ought to have been in frank and open communication with his formal political and legal advisors – the Prime Minister, the Solicitor-General Sir Maurice Byers, and the Attorney-General Kep Enderby – and not the Queen.[36]
Mark Tedeschi QC has described the significance of Charteris’s pointed aside regarding Forsey:
Charteris’s final letters are the most overtly political, and fly in the face of claims that the Palace was not involved in Kerr’s decision. On 4 November 1975, the Queen’s private secretary tells Kerr that the contested and controversial reserve powers do exist, ‘that you have the powers is known’.[38] Yet to whom was it known? It was not ‘known’ to the Prime Minister, the Attorney-General or the Solicitor-General, whose advice on this was contrary to Charteris’s bald assertion.[39] In a letter the following day, his final letter before the dismissal, Charteris expresses himself even more strongly. Far from urging caution as some have claimed, Charteris assuages the concerns Kerr has previously expressed that any use of the reserve powers might do the Monarchy in Australia harm.[40] ‘If you do, as you will, what the constitution dictates’, Charteris writes, ‘you cannot possibly do the Monarchy any avoidable harm. The chances are you will do it good.’[41]
A RARE DEGREE OF TRANSPARENCY: CONCLUSION
The Palace letters case reminds us that having the best, most complete, archives means nothing without public access to them. Had these extraordinarily significant letters remained closed as the Archives, the Queen and Buckingham Palace had wanted them to be, our history would still be incomplete and ignorant of their role. The release of the letters has irrevocably transformed the history of the dismissal; as Nick Feik observed in The Monthly, 'No respectable historian' could now accept that the Queen played ‘no role’ in Kerr’s decision to dismiss Whitlam.[42]
Yet within hours of the letters’ release Buckingham Palace issued a rare statement that ‘neither Her Majesty nor the Royal Household had any part to play in Kerr’s decision to dismiss Whitlam’.[43] This is simply insupportable from the evidence provided by the letters themselves. To claim otherwise is to continue the denial of history that drove the legal action which has finally enabled us to know the history of that tumultuous episode in all its troubling complexity.
The Palace letters case has opened the door to scrutiny of the role of the Monarch in political matters, and not in relation to the dismissal only. Royal control over its own historical representation through the use of the label ‘personal’ cannot now continue, despite the Queen’s express wishes. On this, the High Court’s plurality judgment was clear, acknowledging that while its conclusion ‘might run counter ... to the present expectations of Her Majesty about the timing of public access ... the conclusion is the product of the application of the Archives Act, properly interpreted, to the historical circumstances’.[44]
This is the most far-reaching aspect of the decision. In rejecting the presumption of royal secrecy in favour of the ‘determinative legislative choices’ of the Australian Parliament, the High Court has given voice to the great monarchical fear of transparency. That troubling democratic sentiment is anathema to a dynastic monarchy accustomed to maintaining control of its own historical narrative. Secrecy and royalty have always been two sides of the same imperial coin.
The greater significance of the Palace letters case lies in this less explored aspect of the judgment – as a precedent for the opening of other royal archives, here and elsewhere. One example of this is an ‘eerily similar’ case currently making its way through the British courts. Historian Andrew Lownie is seeking access to the letters of Lord Louis Mountbatten, currently held at Southampton University,[45] which are closed to the public: ‘the effect being that public knowledge of key constitutional and political events is limited’.[46]
Lownie’s case is a stark reminder of just how significant the Palace letters case has been in breaking through this residual royal control over documents and opening them to history. Its significance will only grow as these precedents take hold. Following the High Court’s decision, the Archives confirmed that it would now also release the Queen’s correspondence with governors-general from Lord Casey to Bill Hayden, in what would be an immense contribution to our political history. It has failed to do so, declining even to give a timeline on their possible release.[47] Plus ça change.
The High Court’s decision in the Palace letters case has ensured a rare degree of transparency and accountability over royal communications, and our history has been infinitely enriched because of it. The Archives should grasp the opportunity this offers for it to be the ‘pro-disclosure’ organisation it professes to be, and release its vast royal communications in the interests of history. After a four-year legal action to secure Australian control over our own history, we should expect nothing less.
Jenny Hocking is Emeritus Professor at Monash University, Distinguished Whitlam Fellow at the Whitlam Institute at Western Sydney University, and award-winning biographer of Gough Whitlam. She was the appellant in the Palace letters case. Her latest book is The Palace Letters: The Queen, the governor-general, and the plot to dismiss Gough Whitlam. TWITTER @palaceletters EMAIL jenny.hocking@monash.edu.
[1] [2020] HCA 19 (Hocking HC).
[2] J Kerr, ‘Conversation with Sir Anthony Mason’, Papers of Sir John Kerr: Private and confidential papers relating to the constitutional crisis of 1975, Journal 1980, NAA M4523 1, pt 14.
[3] J Hocking, Gough Whitlam: His Time, Vol. 2, Melbourne University Publishing, Carlton, Vic, 2012.
[4] Ibid.
[5] J Hocking, The Dismissal Dossier: Everything You Were Never Meant to Know about November 1975, Melbourne University Publishing, Carlton, Vic, 2015.
[6] Hocking v Director-General of National Archives of Australia [2018] FCA 340 (Hocking FCA), [9], ‘Agreed statement of facts’.
[7] Ibid, Transcript of proceedings, 31 July 2017, 28, quoted in J Hocking, The Palace Letters: The Queen, the governor-general and the plot to dismiss Gough Whitlam, Scribe Publications, Melbourne, 2020, 87.
[8] Archives Act 1983 (Cth), pt I, s3(1): ‘Commonwealth record means (a) a record that is the property of the Commonwealth or of a Commonwealth institution’.
[9] M Fraser, Official Secretary to the Governor-General, ‘Submission 3 February 2017’, copy with the author.
[10] Hocking FCA, above note 6, Summary.
[11] Ibid, [1].
[13] Ibid.
[14] Hocking HC, above note 1, [117].
[15] F Bongiorno, ‘The Palace Letters’, Australian Historical Studies, Vol. 52, No. 3, 2021, 446–8 at 446.
[16] Kerr to Charteris, NAA AA1984/609, pt 1 (9 September 1974); ibid; Kerr to Charteris, NAA AA1984/609, pt 1 (6 September 1974).
[17] M Turnbull, ‘Foreword’ in Hocking, above note 7, xiii.
[18] Ibid.
[20] M Turnbull, ‘Foreword’ in Hocking, above note 7, xiv.
[21] Bongiorno, above note 15, 446.
[22] Charteris to Kerr, NAA AA1984/609, pt 1 (2 October 1975).
[23] J Menadue, ‘John Kerr talked to John Guise’, Pearls & Irritations, citing Mark Lynch (19 October 2017) <https://johnmenadue.com/john-menadue-john-kerr-talked-to-john-guise/>.
[24] J Kerr, above note 2, pt 17, 130.
[25] Charteris to Kerr, NAA AA1984/609, pt 1 (2 October 1975).
[26] M Turnbull, ‘Foreword’ in Hocking, above note 7, xiv.
[27] P Rodan, ‘Sir John’s lack of candour’, Inside Story (22 July 2020) <https://insidestory.org.au/sir-johns-lack-of-candour/>.
[28] A Mason, ‘It was unfolding like a Greek tragedy’, Sydney Morning Herald (27 August 2012) <https://www.smh.com.au/politics/federal/it-was-unfolding-like-a-greek-tragedy-20120826-24ubh.html>.
[29] Royal UK, The Queen’s Role in Government, <https://www.royal.uk/queen-and-government>.
[30] ‘The Imperial Conference: Abstract of official summary’, Round Table: The Commonwealth Journal of International Affairs, Vol. 21, No. 81, 1930, 229–38.
[31] Kerr to Charteris, NAA AA1984/609, pt 1 (20 September 1975).
[32] Charteris to Kerr, NAA AA1984/609, pt 1 (24 September 1975).
[33] Hocking, above note 7, 202.
[34] Under-Secretary of State for External Affairs, Ottawa, ‘Conversation with Senator Eugene Forsey’, Letter to the High Commission of Canada in Australia, Canberra, Archives UK FCO 24/2052, 28 November 1975.
[35] Eugene Forsey to John Kerr, ‘Papers of Eugene A. Forsey’, Library and Archives Canada, 16 April 1976.
[36] See P Hasluck, ‘The office of the governor-general’, Queale Memorial lecture 1973, Melbourne University Press, Carlton, 1979, in which the importance of ‘frankness and friendliness, to question, discuss, suggest and counsel’ was identified as central to the relationship between governor-general and Prime Minister.
[37] M Tedeschi QC, ‘Whitlam, Kerr and the chief justice ... and the desperation of powers’, Sydney Morning Herald (16 July 2020) <https://www.smh.com.au/national/whitlam-kerr-and-the-chief-justice-and-the-desperation-of-powers-20200715-p55c88.html>. This quote is from the longer unedited version provided by Mark Tedeschi QC to the author.
[38] Charteris to Kerr, NAA AA1984/609, pt 2 (4 November 1975).
[39] M Steketee, ‘The governor-general’s ambush’, Inside Story (2 November 2020) <https://insidestory.org.au/the-governor-generals-ambush/>.
[41] Charteris to Kerr, NAA AA1984/609, pt 2 (5 November 1975).
[43] ‘Buckingham Palace issued rare statement after release of the palace letters’, Sydney Morning Herald (15 July 2020) <https://www.smh.com.au/world/buckingham-palace-issued-rare-statement-after-release-of-the-palace-letters-20200715-p55c3n.html>.
[44] Hocking HC, above note 1, [122].
[45] H Siddique, ‘Cabinet Office blocks publication of Lord Mountbatten’s diaries’, The Guardian (15 May 2021) <https://www.theguardian.com/uk-news/2021/may/15/cabinet-office-blocks-publication-of-lord-mountbattens-diaries>.
[46] Prof I McLean, S Peterson and R Reid, ‘Royal archives that we pay for but aren’t allowed to read: A brief history’, LSE British Politics and Policy (21 May 2021) <https://blogs.lse.ac.uk/politicsandpolicy/royal-archives/#Author>.
[47] NAA to Julian Hill MP, ALP Member for Bruce, Joint Committee on Public Accounts and Audit (29 April 2021).
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