Un­mask­ing his­tory: the Queen, the gov­er­nor gen­eral and the Whit­lam dis­missal

The Guardian Australia - - Opinion - Jenny Hock­ing

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 everdi­min­ish­ing 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.

Pho­to­graph: Key­stone/Getty Im­ages

Sacked prime min­is­ter Gough Whit­lam ad­dresses re­porters out­side Par­lia­ment build­ing inCan­berra af­ter his dis­missal by Aus­tralia’s gov­er­nor gen­eral John Kerr, 11 Novem­ber 1975.

Pho­to­graph: His­toric Memo­ri­als Col­lec­tion/ Par­lia­ment House Art Col­lec­tion/De­part­ment of Par­lia­men­tary Serivces

Por­trait of Gough Whit­lam, Par­lia­mentHouse art col­lec­tion.

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