As the Queen reels from one family crisis to another, Buckingham Palace would be looking on a little anxiously as the ‘Palace letters’ case is heard by the full bench of the High Court next week.
This historic case provides a rare opportunity to challenge in open court centuries of royal secrecy and to canvass letters between the Queen and the Governor-General, Sir John Kerr, regarding Kerr’s dismissal of the Whitlam government.
Kerr’s royal correspondence remains closed to us today on the grounds that they are ‘personal’ communications. They cannot be released under the open access provisions of the Archives Actand are “embargoed” by the Queen,regardless of their historical significance and the acknowledged ‘clear public interest’in them.
I began this case in 2016 with an action in the Federal Court challenging the National Archives’ designation of these letters as ‘personal’ and seeking their release. The Kerr letters are without doubt the most significant of all the Queen’s correspondence with Governors-General held by the National Archives of Australia. They were written during what the Federal Court termed ‘one of the most controversial and tumultuous events in the modern history of the nation’ -the dismissal of the government by the Governor-General, Sir John Kerr, the Queen’s representative in Australia.
It is particularly galling for Australia as an independent, autonomous, nation that these letters are under the purported embargo of the Queen – a non-resident, non-citizen, foreign monarch – whose contentious communications with Kerr about the dismissal of the Whitlam government they include. This unassailable royal conflict of interest at the heart of questions of access to the Palace letters is denying us full knowledge of our own history.
One of the great curiosities surrounding the Palace letters is that although the National Archives claims they are personal and the property of Sir John Kerr, the letters have been “embargoed” not according to Kerr’s own wishes but ‘on the instructions of the Queen’. Kerr’s instructions governing access to the letters were changed after his deathwhen the Palace granted itself a permanent effective veto over their release – which is neither what Kerr had instructed nor what he wanted.
Kerr had always wanted his correspondence with the Queen to be published, believing they would validate his version of events. His original instructions regarding access had required only ‘consultation’ with the Queen’s private secretary and the Governor-General’s official secretary, not their ‘approval’, prior to release. It is unclear how Kerr’s ‘personal’ instructions on access could be changed after his death, from beyond the grave, to cede power over the letters to the Queen. Certainly his original instructions made no such provision.
Over the last three years the case has shed significant new light on the nature of the Kerr-Palace letters and the circumstances surrounding Kerr’s dismissal of the Whitlam government. There are dozens of letters to and from the Queen, mostly through her private secretary Sir Martin Charteris. Kerr was an eager correspondent, at times writing several letters in a single day, and Charteris assured him that the Queen read every one. Kerr boasted of having this ‘direct access’ to the Queen, telling a rather surprised audience in Sydney just weeks before he dismissed Whitlam, ‘I am in constant communication with her’.
There is no doubt, and it is part of the agreed facts of the case, that the Palace letters concern ‘contemporary political happenings’ in Australia at the time of the dismissal and relate to ‘the official duties and responsibilities of the Governor-General’. The most significant aspect of which was the Governor-General’s contemplated, and actual, dismissal of the government, with Kerr’s description of the dismissal itself on 11 November 1975 being one of the closed letters. Professor Anne Twomey similarly notes that ‘Kerr’s correspondence will also contain an explanation and justification of his actions in dismissing the Whitlam government’.
Justice Flickin his strong dissenting judgment at the Full Federal Court found that the Palace letters address matters‘going to the very core of the democratic processes of this country’.The Archives’ legal team conceded at the Special Leave hearingbefore the High Court in August 2019 that the communications between Kerr and the Queenwere ‘for the purposes of and relating to the office of Governor-General’, while arguing that they are nonetheless ‘personal’.
These details are consistent with Kerr’s record of these exchanges which I set out in The Dismissal Dossierin 2015, that Kerr had made clear to the Queen and her private secretary that he was considering dismissing the government, that this was raised with Prince Charles and the Palace, and kept secret from the Prime Minister Gough Whitlam towards whom Kerr maintained a policy of ‘silence’. The Palace neither counselled Kerr to speak to the Prime Minister, nor sought to dissuade him from taking that dire action of dismissal without first warning Whitlam, which Kerr should have done ‘as a matter of fairness’according to former Chief Justice Sir Anthony Mason.
Among Kerr’s private papers, his 1980 journal tells a story of even greater and more active involvement by the Queen’s private secretary, Sir Martin Charteris. It is this exchange in particular which highlights the significance of the Palace letters and the great importance of their release to our history. Kerr recounts an extraordinary arrangement with Charteris that the Queen would protect his position as Governor-General if Whitlam sought to recall him ‘while you were considering having to dismiss the Prime Minister’, as Prince Charles described it. Charteris then wrote to Kerr in earlyOctober1975 that if this ‘contingency’ arose and Whitlam sought his recall, the Queen would ‘try to delay things’, rather than acting immediately on the Prime Minister’s advice.
The Queen’s assistant private secretary at the time, Sir William Heseltine, has recently acknowledged that this arrangement was in place, conceding that if Whitlam had sought Kerr’s recall the Queen would have adopted a ‘policy of political delay’.This exchange with Charteris as reported by Kerr was premised on the prospective dismissal of the Prime Minister and so any delay in acting on Whitlam’s advice would not only be critical in effecting that dismissal, it renders moot the acknowledgement that ‘in the end the Queen would have to act on the advice of Her Prime Minister’. The question is, by then which Prime Minister would that be?
This exchange, recorded by Kerr, would constitute a profound breach of the conditions of dominion autonomy established by the Imperial Conference of 1930regarding the tenure of the Governor-General. The Imperial Conference concluded that, in relation to the appointment and, as Twomey notes, by corollary the recall of a Governor-General ‘the constitutional practice that His Majesty acts on the advice of responsible Ministers applies’. To thwart the advice of the Prime Minister should he seek to recall Kerr, a decision which was Whitlam’s alone to make as the responsible Minister, by delaying acting on that advice would breach the ‘constitutional practice’ governing our post-colonial relations. Yet this is what Kerr claims had been agreed prior to his dismissal of Whitlam.
The enormity of this claimed imperial intervention gives an added urgency to our case seeking the release of the Palace letters. Without access to these historic documents we have no way of knowing the extent to which the Queen knew of, or was involved or acquiesced in, Kerr’s actions. This case, and the arcane secrecy still shielding royal actions and correspondence from public view, shows the damage done to our history by the failure to control our archival resources. It is simply untenable that we cannot know the full story of the dismissal of the Whitlam government until the Queen says we can.
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. Her appeal against the decision of the full Federal Court in the ‘Palace letters’ case will be heard by the High Court of Australia on 4 February 2020. You can support the important campaign to Release the Palace letters by donating here.