As the media debated the political precedents for the Morrison government’s historic defeat in the House of Representatives last week – some pointing to the Bruce government in 1929, and others to the Fadden government in 1941 – largely forgotten was the more recent, and far more compelling, example of the 1975 defeat of the Fraser government in a crucial vote in the House of Representatives. At 3.15pm on 11 November 1975, the newly installed Fraser government comprehensively lost a confidence vote – not a legislative vote as Morrison did but a formal ‘want of confidence’ motion – by 10 votes. That Fraser’s historic parliamentary defeat has largely gone unnoticed despite its obvious relevance, says much about the persistent historical amnesia about the dismissal of the Whitlam government.
Fraser had been appointed Prime Minister by the Governor-General Sir John Kerr, shortly after Kerr’s dismissal of the Prime Minister, Gough Whitlam, who had gone to Government House at 1pm on 11 November 1975 for a pre-arranged meeting with Kerr in order to call a half-Senate election. Whitlam retained the confidence of the House of Representatives and fully expected the House to confirm his position as Prime Minister and overturn the Governor-General’s choice of government, as it then did with its motion of no confidence in Fraser.
The ‘want of confidence’ motion against Fraser also called on the Governor-General to reinstate the Whitlam government, and the speaker was despatched to Government House to inform Kerr of that decision. Malcolm Fraser bears the lasting ignominy of being the only Prime Minister to have lost a motion of no confidence in the House of Representatives and refused to resign. The Governor-General on his part refused to receive the Speaker, keeping him waiting for more than an hour and retaining Fraser in office while dissolving both houses of Parliament and calling a double dissolution election.
The afternoon session of the House of Representatives on 11 November 1975 would have to be the most impassioned, desperate and scintillating parliamentary proceedings ever seen in our history. The dry Hansard text can never capture the emotion, the noise, the disbelief and anguish, nor conjure the fury emanating from the packed public gallery in the cramped quarters of old Parliament House. And yet this moment of enthralling political brinkmanship as the fate of two governments hung in the balance was deemed ‘irrelevant’ to the Governor-General then, as he was advised by the High Court justice Sir Anthony Mason, and it appears irrelevant to our history now.
Even today, nearly 44 years later, key documents in the history of the dismissal remain closed to us. The secret ‘Palace letters’, between the Queen and the Governor-General concerning the dismissal, are embargoed by the Queen until at least 2027 and potentially indefinitely, locked away from public view – at our expense – in the National Archives in Canberra.
Last week’s majority decision of the Full Court of the Federal Court that the ‘Palace letters’ between the Governor-General and the Queen relating to the dismissal are ‘personal’ and not Commonwealth records, means that this Royal embargo over the Palace letters continues, regardless of their content, public interest, or historic importance. The prospect of an appeal to the High Court is currently being considered.
In their majority judgment, Chief Justice Allsop and Justice Robertson found that the relationship between the Queen and her vice-regal representative was in a category of its own, sui generis, and that the Palace letters ‘arose from the unique representative character of the relationship between The Monarch and the Governor-General where there was no capacity on the part of The Monarch to act or to direct’. In this instance the letters arose from the consideration by Kerr of exercising the controversial ‘reserve powers’ – powers exercised at the Governor-General’s own determination and without ministerial advice or oversight – and dismissing the elected Whitlam government. The majority found that the Palace letters were ‘personal’ and could not be considered Commonwealth records ‘simply because their subject matter related to the Governor-General’s role and function’.
By contrast, Justice Flick in dissent presented a very different view, finding that the Palace letters concerned, ‘“political happenings” going to the very core of the democratic processes of this country’. Justice Flick in dissent found that it would be ‘difficult to conceive of documents which are more clearly “Commonwealth records” and documents which are not “personal” property’, than the Palace letters.
Although we have not succeeded in our efforts to secure the release of the Palace letters so far, the case has added greatly to what we already knew about communications between the Governor-General and the Queen, and the baroque quasi-colonial relationship between Buckingham Palace and Government House. The Palace letters, it was accepted during the case, concern the functions and role of the Governor-General and ‘relate to the history and government of Australia’, yet they are also ‘personal’. It was not suggested that there was any personal relationship between Kerr and the Queen independent of their respective roles. As our lead barrister Bret Walker SC argued, Kerr was not writing to ‘a person who – happening to be Queen – he has come to know’ in order to draw her attention to ‘a particularly good Australian novel that she might enjoy’.
Kerr always claimed that he had acted alone in dismissing Gough Whitlam, that the Queen was not aware of even the possibility of dismissal and had been greatly surprised by it. Kerr’s insistence that this was a solo act has long been discredited. It has since been revealed that Kerr and the leader of the Opposition Malcolm Fraser were in secret contact prior to the dismissal despite decades of their mutual denials, and we also know of Sir Anthony Mason’s long role as Kerr’s confidante in the months before the dismissal which extended to Mason drafting a letter of dismissal for Kerr. Mason’s was an active involvement in the dismissal and it had been kept hidden from the Australian public for 37 years, just as the Palace letters remain hidden from us today.
Kerr revealed none of these extraordinary interactions in his memoirs, Matters for Judgment, and nor did he reveal that he had discussed with the Queen’s private secretary, Sir Martin Charteris, and Prince Charles the need to protect his position should Whitlam tender advice to the Queen, in Prince Charles words, ‘that you should be recalled … when you were considering having to dismiss the government’. The Palace’s response to this critical exchange between Kerr and Charles came from the Queen’s private secretary in October 1975. This is a pivotal letter among the many Palace letters still unavailable to us.
Kerr’s denial that the Palace knew anything at all about even the possibility that Kerr might dismiss Whitlam, no longer tallies with the profound transformation of the history of the dismissal resulting from these revelations. It is this transformation in the history itself, so much of which has come from archival research, that makes the Palace letters so important to our history and to our standing as an autonomous nation in control of its own historical estate.
With the Federal Court’s decision that the Palace letters are personal, the secrecy and speculation that have been the hallmarks of both the dismissal and its history continue as the Queen’s embargo over them remains. That Australia, an apparently independent nation should still require the Monarch’s permission to know its own history is surely a national humiliation. That, however, is not all it is.
In this legal Catch-22 of vice-regal secrecy, power and unaccountability, the Palace letters are concerned with the Governor-General’s ‘personal’ exercise of the extreme reserve powers – the removal of an elected Prime Minister – action taken without recourse to ministerial advice, support or even knowledge. With the Federal Court’s decision, these critical communications between the Governor-General and the Monarch relating to Kerr’s controversial use of these powers remains insulated from public view and from political critique and reflection, even decades later. Yet an exercise of these controversial reserve powers of the Governor-General is precisely the type of vice-regal action that demands greater accountability and transparency, not less.
The full implication of this truly dark scenario is, according to Richard Ackland, ‘perverse’; ‘because the exercise in question was … a potent personal deployment of power to destroy the elected government’. Those at the apex of our Constitutional monarchy – the Queen and the Governor-General – can discuss matters including even the removal of an elected government in absolute secrecy from parliament, government and the Australian people. This is the great, and alarming, import of the Palace letters decision.
Jenny Hocking is emeritus professor at Monash University and Distinguished Whitlam Fellow at the Whitlam Institute at Western Sydney University and award-winning biographer of Gough Whitlam. Her latest book is The Dismissal Dossier: Everything You Were Never Meant to Know about November 1975 – The Palace Connection.