The ghosts of the dismissal of the Whitlam government 43 years ago were on display at an appeal hearing before the full bench of the federal court last week: Gough Whitlam, the deposed prime minister; Sir John Kerr, the governor general who dismissed him; Malcolm Fraser, the leader of the opposition appointed by Kerr to replace Whitlam; and David Smith, the governor general’s official secretary.
The star attraction in this star-studded political line-up was the Queen in both her royal personae – the Queen of Australia and the Queen of the United Kingdom – and the arcane relationships between the Palace and Government House, and between the monarch and the governor general. It was a fascinating if momentary window on a now unrecognisable time, a memory of the subservient, colonial expectations that still, despite our apparent independence, govern vice-regal practice in Australia.
This appeal hearing was the latest instalment in the long-running “Palace letters” case which I initiated in the federal court two years ago, seeking the release of secret letters between the Queen and the governor general relating to Kerr’s dismissal of the Whitlam government. These historic letters, critical to our understanding of the dismissal, are held by our National Archives in Canberra where they are kept hidden from us under the strict, and potentially indefinite, embargo of the Queen. The Palace letters are considered by Archives as personal rather than Commonwealth records, enabling Kerr to place his own conditions for access on them and avoiding the usual requirements for public access to the records of the National Archives.
Glimpses of the baroque workings of the Palace, Government House and of the remnant colonial ties between Britain and Australia, could be seen through the prism of the Palace letters. As an autonomous post-colonial nation, we assume that the Queen exercises no residual monarchical power over our system of governance, much less over records held by our National Archives. This case and these letters, however, show that this assumption is misplaced.
In testing the description of the Palace letters as personal, the nature and content of the letters and their political context of the unprecedented dismissal of an elected government by the governor general, was a central issue. Bret Walker SC, leading our case, told the court the question of a governor general’s power to dismiss a government was at the heart of this correspondence and that the Palace letters were therefore Commonwealth records, dealing as they do with questions relating to the functions and powers of the governor general and with Kerr’s exercise of them.
Walker argued that if the letters were Kerr’s personal records and therefore his personal property, as Justice Griffiths of the Federal Court had earlier determined, Kerr could have bolstered his pension by their private sale and offered them to the highest bidder.
On this point, that the letters relate to Kerr’s exercise of his powers and functions, there appeared to be basic agreement and even the solicitor general, Stephen Donaghue QC, appearing for the Archives conceded the letters concern the way in which Kerr carried out his functions. As chief justice Allsop observed, “you would think that Sir John would think that if he was about to dismiss an elected prime minister, he might like to tell the Palace”. And yet that unremarkable acknowledgement – that the Queen had been made aware by Kerr himself that he was considering dismissing Whitlam – has been insistently denied by Kerr, Smith, the Palace, and an ever-diminishing coterie of journalists and commentators, since.
There is no doubt, as I have detailed elsewhere, that the letters concern not only Whitlam’s tenure as prime minister, but Kerr’s tenure as governor general.
Extracts from these letters which I located in Kerr’s papers reveal, most disturbingly, the Palace’s response to Kerr’s concerns for his own position – that the Queen would “seek to delay things” should Whitlam seek Kerr’s recall. Far from the Palace remaining aloof, politically neutral and disinterested in Australian domestic political matters, Kerr’s papers reveal that the Palace was already involved in Kerr’s deliberations leading to Whitlam’s dismissal.
It is impossible to overstate the significance of this exchange. The appointment and recall of a governor general is clearly and unquestionably a decision of the Australian prime minister alone, and has been since the Balfour Declaration of 1926 formalised the autonomy of the British dominions. In 1930 King George V accepted Labor prime minister Scullin’s advice to appoint Sir Isaac Isaacs as governor general, against the King’s own wishes, telling Scullin that “as a constitutional monarch I must, Mr Scullin, accept your advice”.
These fundamental considerations of Australia’s national autonomy were central to the appeal hearing, and it was on this critical question that the major differences appeared. The solicitor general, for the Archives, argued that one would expect “symmetry” between Australian and British archival practice. The apparent consequence of this is that Australia must meekly follow the British archives’ practice of withholding public access to correspondence between the Palace and the governor general, even when this correspondence concerns a matter of such political magnitude and historical significance as the dismissal.
Walker rejected any suggestion that the Queen can still exercise control over our archives, questioning whether the Queen could have any legal right to decide on Australian ownership and control of its archives and describing it as “a most unsafe … intellectual bias”. He told the court that when the Archives Act was passed in 1983 it was never suggested that Australia should simply “tuck in behind the mother country” and follow British archival practice regardless.
Walker’s strongest submission was directed towards the solicitor general’s efforts to construct an analogy between the British royal archives, accessible only at royal discretion and held in the Round Tower at Windsor Castle, separate from the British national archives, and our own single archives in Canberra which makes no such distinction for “Royal” material; “a hereditary office with this notion of royalty of the blood with a panoply of castles has no application” to Australia. Most importantly, and unlike the Royal archives, the National Archives of Australia was not designed to protect and maintain hidden histories.
It remains to be seen whether the court agrees and the archives finally releases the Palace letters, the last of the hidden histories of the dismissal of the Whitlam government.
Jenny Hocking is emeritus professor at Monash University and author of ,The Dismissal Dossier: Everything You Were Never Meant to Know about November 1975 – The Palace Connection.