The Palace Letters and the ‘Plot’ Behind the Dismissal

For a constitutional monarchist, embarking on Jenny Hocking’s book is like landing on D-Day in 1944. First, as one hits the beach, there are the big machine guns and 88mms of Malcolm Turnbull’s foreword, pounding out the boastful republican barrage from the Potts Point bunker and reliving his role as the Great Dividing Ranger and gadfly of the British Establishment. Turnbull is not perhaps the best person to lead the republican attack. He boasts how he intended at one point in his own prime ministership to advise the Governor-General to prorogue Parliament during the period when two pending by-elections rendered his a minority government, for the purely political motivation of avoiding a no-confidence motion. Sir Peter Cosgrove told him he would not follow that advice, thereby creating, unintentionally, a further precedent for when a governor-general was entitled to exercise his discretion in the public interest not to follow a prime minister’s advice.

Turnbull does not mention his other muted ploy during the last desperate days of holding on to the leadership of the Liberal Party, when he suggested he could advise the Governor-General not to appoint Peter Dutton as Prime Minister if he won the party leader ballot because an allegation was made that Dutton was disqualified from sitting in Parliament. Turnbull again had to be told, this time by his own Attorney-General, that this was an unlawful use of the convention that the Governor-General should follow the advice of his ministers[1].

Then, as one moves on through the Normandy countryside of Hocking’s narrative, the reader encounters the bocage from which the reader is enfiladed with the barbs of her contempt for Australia’s constitutional arrangements between the Queen and the Governor-General, for the sinister influence of the Queen’s Private Secretary, Sir Martin Charteris, and for the contradictory personality of Sir John Kerr. They are all denounced without compunction in personal terms—Kerr is “duplicitous”[2], Charteris “supercilious”[3]. The constant sniping and sneering, often fixated on petty details, are a great barrier to both the flow of the narrative and the reader’s trust in what is being related. That the book is so obviously motivated by prejudice undermines its value. Hocking uses her eventual success in the High Court to suggest that these prejudices about the dismissal and most of the people involved in it are vindicated. The book purports to present a fable of justice prevailing over a “plot”.

To put the book in proper context, it is best first to set out a summary of the issues and the findings of the courts, derived from the official reports, so as to clear a way through the smash-and-grab methodology of Hocking’s telling.

 

The Palace Letters and the Archives Act

The Palace Letters were deposited with the National Archives of Australia in August 1978 by David Smith, then Official Secretary to the Governor-General, Sir Zelman Cowen. They consisted of 212 letters written between 1974 and 1977, plus attachments, which had been in the custody of Smith since Kerr retired as Governor-General in December 1977. The instrument of deposit, as Smith’s covering letter was archivally characterised, described the correspondence as “personal and confidential”, stated that the wishes of the Queen and the instructions of Sir John Kerr were that they were to remain closed for sixty years after the end of Kerr’s term in office (that is, until 2037), and then released only after consultation with the reigning monarch’s Private Secretary and the Governor-General’s Official Secretary. A subsequent instruction from the Official Secretary in 1991 advised that the Queen had instructed that the term of closure be shortened to 2027.

Hocking applied for access in 2016 on the basis that the letters were “Commonwealth records” under the Archives Act 1983. Such records are open for public access thirty years after their creation, notwithstanding the terms of any private instrument of deposit[4]. Under the Act a “Commonwealth record” means one that is “the property” of the Commonwealth or of a Commonwealth institution. “Commonwealth institution” was defined by a list which included specifically “the official establishment of the Governor-General”[5]. The National Archives refused Hocking access on the basis that the letters were not Commonwealth records but personal records of the Governor-General.

Sections 22A and 33 of the Act contained exemptions from disclosure under the thirty-year rule for Cabinet notebooks, documents disclosure of which would breach confidence and documents disclosure of which would be contrary to the public interest. None of these exemptions were argued by the Archives or the Attorney-General in the proceedings.

The Act was legislated in 1983 by the Hawke government. The original 1978 Archives Bill and its 1981 replacement had contained express exemptions for the “records of the Governor-General”. This was deleted from the final Bill introduced in 1983, which also inserted the “official establishment of the Governor-General” as a category of Commonwealth record. In his Second Reading Speech, Attorney-General Gareth Evans said that this was intended not to include the Governor-General’s “personal or private records”[6], but he did not provide any further elucidation on what that category included.

The legislation produced an apparently binary choice between the concept of “property” of an official entity against that of a record owned by the individual office holder. Looked at through the prism of the traditional common-law concept of property as ownership, the legal issue seemed to require that anything that was not established as the property of the Governor-General’s official establishment was owned “personally” by the Governor-General and therefore was not a Commonwealth record.

The parties concurred in a statement of agreed facts that the Letters addressed topics relating to the official duties and responsibilities of the Governor-General, but the official nature of the correspondence, though pointed to by Hocking as favouring ownership by the official establishment of the Governor-General, did not on its face clearly solve the “property” question. The fact that the Letters had been in the custody of David Smith in his capacity as the Official Secretary of the Governor-General was also not regarded as clearly determinative because there was plenty of evidence that Kerr and the Queen had directed Smith in his dealings with the Letters, and his ambiguous position as the “agent” of the Governor-General and Kerr personally obscured the relevance of his custody of the Letters.

There was a wealth of historical material tendered, mainly letters, which recorded the views of many people bearing on the nature of the Governor-General’s records, how they should be treated, labelled and referred to and how they had been dealt with by other Governors-General. This body of historical evidence about the Letters was notable for the recognition given in them to other reasons to protect the Letters from disclosure—the Letters as both related to official matters and part of Australia’s history, but also falling into a special category that required exemption from usual rules of public disclosure. The result may have more significance for a later generation of politicians and officials: the thirty-year rule applies to documents created before 1980, but the rule applying to documents created after 2000 is a twenty-one-year period.

 

The first judgment

Justice Griffiths read down the concept of “property of the Commonwealth” and found that the Letters were private and personal in nature, falling into a sui generis category conventionally regarded personal property[7]. His findings were supported by a list of factors disclosed in the evidence and legal submissions: statements by Kerr, the Director-General and the Queen, through her Private Secretaries, indicating an understanding that the Letters were Kerr’s personal property, Kerr’s directing Smith’s dealings with the Letters, a convention established by historical dealings with the same correspondence of other Governors-General as personal records.

Justice Griffiths rejected the notion that Kerr was engaging in that correspondence, exercising the executive power of the Commonwealth under section 61 of the Constitution. The High Court in Kline v Official Secretary of the Governor-General[8] had made plain that not every function of the Governor-General was done on the advice of Ministers or the Executive Council, and Justice Griffiths found Kerr’s function in communicating with the Queen was outside the ambit of the exercise of executive power of the Commonwealth based on ministerial advice.

 

The Full Court judgment

The Full Federal Court majority also upheld the Archives argument that the Letters were not the property of the Commonwealth. Justice Flick dissented, adopting a no-nonsense view that the characteristics of the Letters indicated they fell within the definition of a Commonwealth record. He did so with “great diffidence” and made the point that his decision was based on the statement of agreed facts which made no reference to any personal relationship between the Queen and the Governor-General[9]. Justice Flick said that with the benefit of hindsight the question may not have been best dealt with by reference to an agreed statement of facts[10]. He said[11]:

Whether any particular document is an “exempt record” by reason of s 33 of the Archives Act because disclosure may (for example) “constitute a breach of confidence” (s 33(1)(d)) is an entirely separate question and a question which did not, and does not, arise for present determination.

The majority accepted that the use of the phrase “official establishment of the Governor-General” in the definition of Commonwealth records indicated Parliament intended a disparity between official documents relating to governmental matters and other communications of the Governor-General in a personal capacity including correspondence entered into with the Queen as part of his role as her agent. This chimed with the findings in Kline that not all of the Governor-General’s duties were carried out on the advice of the executive government[12]. Important in this conclusion was the fact that the Queen could not direct the Governor-General in his exercise of powers, citing Anne Twomey’s 2018 work, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems. The majority eschewed any reliance on the arrangements in the United Kingdom. They accepted a submission that if Hocking’s argument was correct, as soon as the Governor-General wrote letters to, or received letters from, the Queen regarding these duties, it was open to the relevant minister to issue them to the public under a power in section 56 of the Archives Act[13].

 

Kline’s case and Sankey’s case—reasons for confidentiality

Kline was a case in which documents were sought from the Official Secretary under the Freedom of Information Act concerning a correspondence between the Governor-General and the Council of the Order of Australia relating to a submission to award an honour. That Act did not include the Governor-General as a “prescribed authority” subject to the Act, though a document of the Official Secretary relating to administrative matters could be accessed. The majority recognised the reasons for this: certain office holders, including the Governor-General, hold independent offices requiring impartial discharge of their powers and functions, and the Act struck a balance between exposing some government processes to public scrutiny while exempting others in order to secure an overriding public interest in non-disclosure[14]. The Governor-General’s role in relation to the Order of Australia was sui generis which required full and frank exchanges between the Governor-General and the Council[15].

These are all very sensible and time-honoured reasons for there to exist, sometimes, a public interest in non-disclosure. They are the same justifications underpinning legal professional privilege and public interest immunity from disclosure of notes of Cabinet discussions. They are intended to protect confidential communications and permit the efficient execution of professional duties which require the expression of frank and honest opinions, sometimes against the interest of the parties, in order to work through and assist decision-making process without the scrutiny of outside parties and the threat of the discussions being used in another context as a means of engendering disputation. It is part of the policy of legal governance to limit political manipulation of the mechanisms for stability of the state and to quell such disputes.

Exactly the same arguments were used in 1975 by Gough Whitlam, Rex Connor, Jim Cairns and Justice Murphy in order to keep confidential Cabinet, Executive Council and departmental documents concerning the “loans affair” in Sankey v Whitlam[16]. In upholding the privilege for Executive Council documents Chief Justice Gibbs identified two reasons for this policy, first that proper decisions can only be made in high levels of government if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility of publication may inhibit that freedom, and, second, that disclosure would fan ill-informed or captious public or political criticism. Justice Gibbs quoted Lord Reid[17]:

The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.

The Chief Justice commented that “it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy”[18].

Hocking does not mention to her readers any of these public interest issues. Hers is a prosaic conscience, determined that everything should be exposed and raked over because the withholding of information is, in itself, an inherent evil.

Sir Paul Hasluck, in his 1972 Queale Lecture, “The Office of the Governor-General”, an authority endorsed by Hocking as “an exceptional exposition of the role of the governor-general”[19], stated that the Governor-General in Australia has the rights of the Queen in the United Kingdom, to be consulted, to encourage and to warn[20]. Section 61 of the Constitution establishes the relationship by vesting the executive power of the Commonwealth in the Queen but making it exercisable by the Governor-General as her representative. Hasluck and Sir Zelman Cowen considered the Governor-General had a constructive role ensuring administrative actions were lawful, complied with the proper forms and conventions of government and accorded with government policy[21]. In order to do that, he or she must form views about political matters and express them to his or her ministers. When corresponding with the Queen for the purpose of regular reporting, the expression of frank opinions about the political situation, especially where a government does not control Parliament and has difficulty governing as a result of the political process, and where there is a real possibility that prerogative powers may need to be exercised, should be unsurprising. The Governor-General, obliged to formulate such views in order to exercise the rights referred to above, would be duty bound to share them with the Queen.

Hocking never mentions the decision of Kline in her book, nor does she explain to her readers the nature of the reserve powers or the established learning and practice concerning their exercise, nor the policy reasons behind them. Instead, she characterises Kerr’s attempts to fulfil his role as Governor-General as a scandalous attempt to exercise or manipulate political power.

What has been lost sight of in the publicity about Hocking’s case, and it is certainly absent from Hocking’s book, is any acknowledgment that there are legitimate reasons for non-disclosure. It may well be that had the exceptions under the Archives Act been argued, they would have failed only because of the passing of time had rendered the documents of mainly historical interest, but such a conclusion would have preserved a principle applicable to more recent vice-regal communications. If there is ever another constitutional crisis, one can expect the judgment in the Hocking case will be rolled out as establishing that vice-regal communications should be immediately accessible to the public.

The High Court judgment

The concept of property changed in the High Court[22]. The majority discerned in the Act a different, more fluid and ambiguous meaning of property, not the concept of ownership or possession, official or personal, but the capacity to exercise power over the records, primarily established by custody or possession, and overt acts of control[23]. Given that the Official Secretary had custody of the Letters as part of his function, and he had deposited them in the Archives in that capacity, that determined that they were property of the official establishment[24]. This conclusion was a simple application of the Archives Act and the legislative choices that had been made, meaning the lack of any express reservation for the Governor-General’s correspondence with the Queen[25].

Hocking’s interpretation of the High Court decision

Hocking’s summary of the High Court decision is not wholly accurate, and where she is not accurate, the book feeds her prejudices. She says that the High Court majority found that the Letters were “inherently communications of the Commonwealth as a body politic” and that it was “constitutionally unthinkable” for them to be personal documents. These quotations do not come from the High Court’s findings, but from a summary of the parties’ arguments only[26]. The majority’s finding was in fact a much simpler one: that as the evidence demonstrated that the letters were entrusted to David Smith as the Official Secretary, and dealt with by him in that capacity, they were the property of the official establishment of the Governor-General and therefore Commonwealth records[27]. There was no finding that it was “constitutionally unthinkable” that such records could be other than Commonwealth records and subject to the thirty-year rule—it was not a function of the Constitution that led to the result, but, as the majority said, the peculiar legislative (and, one should add, political) choices made in enacting the legislation and the application of the Act properly interpreted[28].

Hocking seizes on that last comment by the High Court as a triumphant statement of the primacy of Australian law over the express wishes of the Queen and the “quasi-imperial imposition of the Queen’s embargo”, and goes so far as to claim that “the decision provides a precedent for access decisions in other Commonwealth nations, and potentially even in the United Kingdom where public access to the Royal Archives is denied, except with the position [sic] of the monarch”[29]. This description is incorrect and misunderstands what the majority were saying. They were in fact saying the opposite.

In clarifying the reason for their decision, the majority were making a statement of judicial caution that the defeating of the expectations of the Queen, Sir John Kerr and David Smith that the Letters were not to be subject to the thirty-year rule was entirely a function of the Australian legislation and turned on the specific circumstances of the case. In cases of statutory construction, judges often make such qualifying statements to indicate that the decision is not applicable in any general sense but turns on the provisions of the particular legislation as construed by them. To extrapolate the decision, as Hocking does, as a victory over imperial imposition and “royal secrecy”, capable of determining the same question in other constitutional monarchies and in the United Kingdom, reveals Hocking’s shaky grasp of the legal implications of her case.

Hocking’s narrative: the Queen, the Governor-General, and the plot to dismiss Gough Whitlam

While the experience for the constitutional monarchist reader is one of an opposed amphibious military landing, the conceptual position from Hocking’s point of view is very different. Here the atmosphere more resembles The Pilgrim’s Progress, wherein is discovered the manner of her setting out, her dangerous journey and safe arrival at the desired country. The book is pitched at the interested and informed general reader, and, as is now often the convention, relates the personal journey of the author as she encounters the weirdness of the world outside of Monash University and the convenient certainties of a life of publicly-funded chauvinism.

It is a moral tale, as Hocking sets out to discover the Celestial City of access to the Letters, hindered in her journey by Pliable (Justice Griffiths), who rules against her case and in favour of Obstinate (the Director-General of the Archives), and casts her into the Slough of Despond, until Help arrives in the shape of Bret Walker SC. After the defeat in the Full Federal Court, and while in the Valley of Humiliation, Hocking returns to the Archives to dig up more records, where she struggles with and seeks to expose the spirits of Hypocrisy (Kerr) and Formality (Charteris) through their errant writings. She endures the barbs of Envy (Paul Kelly), Superstition (Troy Bramston) and Pick-Thank (Gerard Henderson), witnesses against her campaign for access to the Letters. Accompanied by Help, Hocking survives the passage of the dangerous Enchanted Ground (the Special Leave Application) “a place where the air makes them sleepy and if they fall asleep, they never wake up”, and enters the Land of Beulah (Canberra) where the Atheist (the Solicitor-General) is chained by the judges of the High Court[30] and dispatched. Hocking finally enters the Celestial City with an order for mandamus against Obstinate.

Hocking describes the litigation as a “contest between British Imperial expectations and Australian post-colonial independence”[31]. She persists in describing the Queen’s instructions about the Letters as an “imperial” imposition and a “colonial relic”, eliding the Queen’s constitutional role as Queen of Australia, and her interest in that capacity in her correspondence with her vice-regal representative, with the monarch’s historical role as emperor/empress and as current head of state of the United Kingdom[32]. Hocking seems most of the time not to understand the distinction. Given that Kerr was the agent of the Queen of Australia, it is no surprise that she exercised ultimate direction over the Letters, which is why Kerr could not revoke the instrument of deposit and why the Queen of Australia had the right of final say.

A similar vein of egregious attitudinising is seen in Hocking’s constant opposition of the “convention” of “royal secrecy” to the imperative of knowing “our history”, the Queen’s “imperial embargo” preventing us by “remnant imperial control”[33] from knowing the full story of the Dismissal.

A further example is her continuous doing-down of Kerr. Hocking points out that Kerr was the son of a boiler-maker[34], but does not remark on the cardinal facts of his life: that he was a scholarship boy at Fort Street Boys’ High School, a colonel in the Australian Army during the Second World War, a successful barrister, Queen’s Counsel, Justice of the ACT Supreme Court, and Chief Justice of New South Wales from 1972, or that these facts are indicative of an Australian society that offered a career open to talent and hard work for people not from “privileged” backgrounds. Rather Kerr’s background serves to mark him out as a class-traitor.

What is most striking about the portrayal of Kerr, is that Hocking, like many of Kerr’s critics, never acknowledges his real experience in legal matters, the realities of exercising the powers and responsibilities of office and the effects they may have on the human actors that are required to fill office, or how the pressure of events affects the making of important decisions of state. Kerr was no doubt troubled, and Hocking’s only explanation is that his humble background was the reason why he was deferential to the Queen and Charteris and the “establishment” figures who supported him, and why he sought their “affirmation”. She does not stop to consider that his troubles arose from the fact of his complex constitutional role and his prior good relations with the Labor Party and Whitlam, and not because he was a venal social climber who had adopted the airs and baubles of the enemy. Though it is gospel that Kerr should have given Whitlam express notice of his intentions, this is very much a view adopted with hindsight, the critics never explaining what it is that they would have responsibly done on a considered view of the constitutional implications and the law, how that would have resolved the crisis in November 1975 any better, or what the consequences would have been.

 

Hocking’s approach to the prerogative powers

There is no doubt that the Letters insofar as they dealt with the constitutional crises were related to the prerogative powers of the Crown. Those prerogative powers may require exercise in a constitutional crisis, as has been well recognised by legal scholars[35]. In exercising these powers, the Governor-General has some personal discretion and need not invariably follow ministerial advice, and may even act against the advice of ministers[36].

When it comes to the possible dismissal of a government which cannot govern through Parliament, all ministers, including the Prime Minister, hold office “at the pleasure of the Governor-General”—they are the words of section 64 of the Constitution. The conventions regarding the exercise of the reserve power to dismiss ministers mitigates the harsh generality of that provision.

Hocking confuses in her book the convention, established at the Imperial Conference in 1930, that Governors-General are appointed by the Queen on the advice of the Prime Minister of the day[37] with the quite separate scenario of the exercise of reserve powers to dismiss a Prime Minister where the government does not have the confidence of Parliament. She accuses Charteris of “failing to remind Kerr of his responsibility to speak to the prime minister, to seek his advice, and, both constitutionally and morally, that he not deceive him”[38]. She seems to think that the Governor-General was required to advise the Prime Minister that he might be dismissed, so that the Prime Minister could advise the Governor-General not to do it, and to provide the Prime Minister with the opportunity to take tactical advantage of the Prime Minister’s power to advise the Queen to recall the Governor-General first, even when the Governor-General had done nothing unconstitutional. This is an odd concept of fairness.

The declarations following the 1926 and 1930 Imperial Conferences said nothing about the existence of the reserve powers vested in a Governor-General, they freed the Governor-General from any residual control by the British government, clarifying that the Governors-General were thenceforth to be solely the representative of the Dominion monarch and were in the same position in the Dominions as that of the King in Britain. If anything, they reinforced the fact that the Governors-General therefore could exercise the same reserve powers. Astonishingly, Hocking attempts to use these declarations to assert that as at 1926 the reserve powers, which she calls “a residue of the doctrine of the divine rights of kings”, had fallen into “desuetude”[39].

Hocking does not mention to her readers any of these matters or that aspect of the 1926 Imperial Conference in her book. Instead, as when she appeared on the ABC’s Q&A in November 2020, she baldly asserts, like King Lear raging in the tempest, that the reserve powers do not exist, a proposition the worthy republican, Paul Kelly, who was also on the Q&A panel, immediately contradicted.

 

What do the Letters actually tell us?

Hocking’s primary allegations are that:

♦Kerr was deferential to the Queen and her Private Secretary, the latter of whom “expertly played” Kerr[40];

♦Kerr expressed personal opinions about the political issues[41];

(despite the first point above) he sought to and did manipulate the political process and the outcome of the crisis in November 1975[42];

♦he was secretive in his dealings with Whitlam and failed to tell him he intended to sack him as Prime Minister[43];

♦in October 1975 Kerr had obtained an assurance from the Queen, through Charteris, that in the event that Kerr’s recall was advised by Whitlam, the Queen would delay making a decision[44];

♦the Queen, though her Private Secretary did intervene in the crisis, advised Kerr about the dismissal and encouraged Kerr to sack Whitlam[45].

On a fair reading of the Letters they do not bear out these allegations[46].

There is some evidence in the Letters for the first of these accusations, but they are mainly relevant as justification for Hocking’s perpetual sneering about Kerr’s character. Even so, the accusation that Kerr was deferential and manipulated by Charteris is not consistent with Hocking’s third allegation that Kerr set about himself manipulating the political situation, and her contradictory statement that Kerr “acted unilaterally”[47]. The attempt to dramatise the relationship between Kerr and Charteris as some sophisticated power play detracts from the seriousness of the book.

The fact that the Queen, through Charteris, was made aware of Kerr’s possible action should be no surprise, as he was her representative. Kerr had the duty of an agent to keep his principal informed of the political situation into which she could be drawn and because his actions were likely to affect the reputation and standing of the monarch.

 

Failing to advise Whitlam of dismissal

The fourth accusation is familiar and is repeated by Malcolm Turnbull in his foreword to Hocking’s book. It is based on the assumption that everything the Governor-General does is done on the advice of his ministers, which Hocking describes as “the fundamental ‘constitutional principle’”[48]. She constantly restates this as an absolute truth[49]. Ergo, according to Hocking, when Kerr was considering whether and how to exercise his reserve powers, he was required to tell Whitlam so he could be guided by Whitlam’s advice. Hocking says Kerr instead took “the unthinkable path of remaining silent”[50].

Hocking also makes a hash of the issue of the joint legal opinion Whitlam requested from the government law officers, Attorney-General Kep Enderby and Solicitor-General Sir Maurice Byers, on October 21, 1975, as to whether the reserve power to dismiss the Prime Minister existed (incidentally, further giving the lie to the idea that Whitlam did not know Kerr might dismiss him)[51]. Hocking rails against Kerr’s letter to Charteris on October 22, expressing the view that he was not obliged to accept advice that the powers did not exist, as another failure to follow the advice of “his constitutional advisors”[52]. Kerr requested the advice of Whitlam to balance shadow Attorney-General Ellicott’s publicised opinion on the reserve powers, and ultimately the law officers did not provide a final opinion to Kerr.

As Professor George Winterton wrote, the reserve powers are powers whose exercise is not dependent on ministerial “advice”, and the power to dismiss a Prime Minister should only be exercised as a last resort when absolutely necessary to ensure effective operation of responsible parliamentary government, surely the correct position since the Glorious Revolution of 1689[53]. This was the same advice Charteris gave to Kerr in a letter of November 4.

The issue for Winterton arising from the 1975 crisis was that supply had been blocked by the Senate, to which he thought that the government was not responsible, and in his view the government could not be dismissed until the cupboard was bare and the Treasury had run out of money, because then the government would be acting unconstitutionally if it attempted to keep governing with unauthorised funding[54]. This was in fact essentially Kerr’s own view (September 20):

One point is that if neither can get supply and public servants etc. are not being paid it is said that only an election can resolve the point and if Mr Whitlam will not advise one I may have to find someone who will. My mind is at the moment open on this[55].

And (October 27):

It could easily happen that Parliament will, by the end of November, have finally and unequivocally denied supply and the Government will be attempting to govern without it. This will be so if one of the quite likely courses of events takes place, that is to say, if a total deadlock persists. In such a situation it will become necessary to consider whether the Prime Minister and his Government should resign or recommend a dissolution. I would have to consider whether I ask for this.[56]

Kerr’s advice from the Treasury as at November 6 was that supply would run out at the end of the last public service pay period in November, the first pay date when there would be no money being December 11[57].That Kerr acted on November 11 just before the last pay period could hardly be regarded as irresponsible. The distinction between dismissal at a time when supply had not run out but was going to, and when it had actually run out, seems an odd one to make in the context of responsible government and when one considers that the Senate is a representative house, has the constitutional power to reject supply, and that Winterton’s in extremis scenario encourages US-style deadlocks to the detriment and humiliation of the people.

But perhaps most importantly in the context of a book purporting to give a fair account of the Letters (and “our history”), Hocking omits to include reference to the letter from Kerr to Charteris dated September 20, in which Kerr reports conversations he had with Whitlam in Port Moresby when they were attending the Papua New Guinea Independence Day celebrations together. Kerr wrote:

Another point of importance put to me by the Prime Minister at Port Moresby was that if I were, at the height of the crisis, contrary to his advice, to decide to terminate his commission at the time when the public service, defence forces, police and so on were not being paid, he would have to tell me that Mr Fraser would not be able to get supply either and it would not pass the House of Representatives because new legislation would probably be necessary[58].

Hocking complains about the fact that it was during this same trip that Kerr advised Prince Charles that he was considering the issue of whether he might have to dismiss Whitlam and his concern that Whitlam may advise the Queen to dismiss Kerr first[59]. She never mentions the fact that Whitlam himself raised the question with Kerr at the time. In any event the press had been canvassing the possibility of dismissal since September. The Queen would have been aware of this even if Kerr had not mentioned it in the Letters—it was not the secret that Hocking seeks to portray.

In the letter to Charteris dated September 30, Kerr reported a conversation in which Whitlam first raised the idea of him advising a half-Senate election for December, Whitlam anticipating that the election would result in the government obtaining a majority in the Senate. When asked by Kerr whether the government could meet its obligations between a blockage of supply and the December election (the supply bills being anticipated to be before the Senate on October 14), Whitlam conceded that it would not be able to do so, but said he would call on a vote of confidence in the government in the House of Representatives and then “argue to me that he is entitled to retain his commission for as long as he holds the confidence of the House of Representatives, despite his failure to obtain supply[60]”.

In a further letter to Charteris dated October 20, Kerr reported the conversation with Whitlam in which the Prime Minister first told Kerr he intended to govern without supply by guaranteeing loans from the banks to pay the public services in order to outmanoeuvre Fraser. Kerr goes on:

More important, the crisis will, he argues, thus be kept at the political level. There will be no real constitutional crisis, because despite denial of supply he will still be able to govern and there will be no excuse for me to demand evidence from him that he can get supply and no excuse for removing him and for sending for someone willing to recommend an election.

In a letter of November 6 Kerr reported to Charteris that Fraser had told him he would agree to having an election of the House of Representatives at the same time as a half-Senate election at any time up to May or June 1976. Kerr reported that Whitlam rejected any idea of a lower house election: “He later said that the only way in which an election for the House could occur would be if I dismissed him.”

Hocking does not refer to any of these passages. How can it be said Whitlam was unaware that Kerr had that option, or that they had not discussed it? Whitlam’s problem was not that he needed to be told about the possibility, but that he made an inaccurate assessment of Kerr’s willingness to exercise the power. Between this obdurate stance and his threats to dismiss Kerr, Whitlam had created the conditions that pushed Kerr to act without giving Whitlam prior notice of the actual dismissal. Whitlam’s blunt, intransigent statement was repeated back to him in the letter Kerr handed him when withdrawing his commission on November 11[61].

The Queen would delay

The fifth claim arises from a letter Charteris wrote to Kerr on October 2 (though Hocking had found a note Kerr made in his Journal in 1980 paraphrasing the same passage)[62]. In the letter Charteris reported that Prince Charles had told him of Kerr’s concern that Whitlam would advise the Queen to dismiss Kerr if Whitlam thought Kerr might dismiss him. Charteris wrote:

If such an approach was made you may be sure The Queen would take most unkindly to it. There would be considerable comings and goings, but I think it is right that I should make the point that at the end of the road The Queen, as a Constitutional Sovereign, would have no option but to follow the advice of her Prime Minister.

In their book The Truth of the Palace Letters[63] Paul Kelly and Troy Bramston report that Charteris himself had advised them that he meant there would be delay while the Queen insisted on such important advice being rendered to her in writing, according to the usual protocol[64]. It is not clear why Hocking thinks the foreshadowed delay would be of any assistance to Kerr. There is no evidence that Kerr regarded Charteris’s letter as anything other than a confirmation that Whitlam’s threats to dismiss Kerr were potent. Kerr’s ultimate response to that letter appears in his letter to Charteris dated November 20, written in the aftermath of the dismissal, when there was considerable public discussion about how the dismissal had come about, including in the context of Whitlam’s threats to advise the Queen to dismiss Kerr:

If in the period of say twenty-four hours, during which he was considering his position, he advised The Queen in the strongest terms that I should be immediately dismissed, the position then would have been that I either would in fact be trying to dismiss him while he was trying to dismiss me, an impossible position for The Queen, or someone totally inexperienced in the developments of the crisis up to that point, be it a new Governor-General or an Administrator who would have to be a State Governor, would be confronted by the same implacable Prime Minister. This assumes there would be no alternative in the Crown’s hands but to comply with the demand for instant dismissal. If the Crown delayed I would still be here with the same problem but impotent or with much more serious decisions to make.

Hocking does not refer to this passage in her book.

The Queen intervened

The sixth claim is not supported by the Letters. Hocking says that the Letters show that the Queen knew as early as September 1975 that Kerr was considering dismissing the government, knew of his failure to warn the prime minister about the possibility of his dismissal, and that the Queen “engaged with Kerr in consideration of the most controversial and quintessential political matters”. She says that for a constitutional monarch who must remain politically neutral at all times this was “unconscionable”[65].

This is the naive and immature (if not disingenuous) view of the Queen as kept in a constitutional nunnery which republicans foist upon the Constitution. The Queen is not a saint in a remote palace in England, she has vast experience and interest in the political situations in her domains, as is appropriate. As Queen of Australia she holds a formal structural position under the Constitution, and has a duty to be informed and naturally relies on her representatives to keep her informed. Even The Crown did not attempt to dislodge or denigrate the Queen’s week-to-week interaction with politics or dislodge her reputation for perspicacity in dealing with politics and politicians. The important question is who actually exercises the power, and Hocking produces no evidence from the Letters that the Queen ever did. Notice also how, despite Hocking’s allegation that the Queen took part in Kerr’s decisions, all she can actually point to is the Queen having knowledge of what Kerr was considering and doing. The actual accusation seems to be that the Queen should somehow have intervened in Kerr’s course of conduct, something she had no power to do under the Constitution, and which would have attracted howls of outrage from people like Hocking.

When it comes to the actual Letters though, Charteris does not give any advice as such. Hocking places a lot of weight on Charteris’s referral to Kerr of the writings of the Canadian jurist Eugene Forsey. The scope and genesis for this referral should be seen in the context of the course of correspondence. Kerr attached to his letter to Charteris dated October 22-24 a copy of the Australian leader of October 24. The leader quotes from Sir Paul Hasluck’s Queale Lecture, noting Hasluck’s view that the Governor-General was entitled to take advice from people other than the Prime Minister, such as the Chief Justice, and that the reserve powers governed the Governor-General’s choices when Parliament had become unworkable, providing a mechanism to ensure good government by bringing about a dissolution of Parliament so the people could resolve the deadlock.

In his next letter dated October 27, Kerr says: “I do not need to spell out the problems involved in such a course of action if the Prime Minister refuses to do either of these things which he says he will.” Kerr then refers to the Queale Lecture, which he attaches, pointing to a passage in which Hasluck said that while it is not for the Governor-General to overrule the elected representatives, he has the power to check them if there is an extreme attempt to disregard the rule of law or other customary usages of Australian government. Kerr comments that not everyone agrees with Hasluck’s view, and he had not made up his own mind about it. Conscious of the fact that whatever he might do it was likely to directly or indirectly affect the “Monarchy in Australia”, he asks Charteris for any observations on a private and personal basis he might care to make on matters that should be taken into account in the interests of the Monarchy in Australia.

In a reply of November 4, Charteris expresses his own view that the reserve powers do exist but “it is only at the very end when there is demonstrably no other course that they should be used”. It is not really surprising that the Queen, through Charteris, would communicate a belief that her reserve powers existed but express caution as to their use. Whitlam himself recognised that the powers existed and had said as much to Kerr. Australian newspapers were awash with advice from “the professors” as Kerr called them, significant local academic opinion supported the existence of the reserve powers, and Kerr had already obtained and reviewed the position as laid out by his immediate predecessor, Hasluck.

Hocking complains that in his next letter to Kerr of November 5, Charteris ends by quoting the former Canadian prime minister Arthur Meighan, who occupied a position similar to Fraser in the Canadian constitutional crisis of 1926. In her book Hocking only sets out part of the quotation Charteris included:

The sphere of discretion left to a Governor-General under our constitution and under our practice is a limited sphere indeed, but it is a sphere of dignity and great responsibility. Within the ambit of discretion residing still in the Crown in England, and residing in the Governor-General in the Dominions, there is a responsibility as great as falls to any estate of the realm or to any House of Parliament.[66]

Though couched in rather pompous terms, there is nothing in this that exceeded Hasluck’s summary of the reserve powers. Hocking neglects to set out the balance of the quotation from Charteris:

Within the sphere of that discretion the plain duty of the Governor-General is not to weaken responsible government, not to undermine the rights of parliament … it is to make sure that responsible government is maintained, that the rights of parliament are respected, that the still higher rights of the people are held sacred. It is his duty to make sure that parliament is not stifled by government, but that every government is held responsible to parliament, and every parliament held responsible to the people.[67]

That is what Charteris described as “good stuff”—as good a republican sentiment as one can get. Why did Hocking exclude the full quotation? These letters are not “advice” to Kerr that the reserve powers existed and he was entitled to dismiss the prime minister. They never direct Kerr to any particular decision or end. They didn’t tell Kerr anything he did not already know. Hasluck’s Queale Lecture stated that the Governor-General was “under no compulsion to accept [advice] unquestionably”, and, “In doing this he has two dominant interests—one is the stability of government (no matter from which political party it is drawn) and regard for the total and non-partisan overall interests of the people of the nation.”

In her book Hocking then seeks to link the Meighan quotation by Charteris to his postscript to a much earlier letter of September 24 in which he referred Kerr to Eugene Forsey’s book The Royal Power of Dissolution of Parliament in the British Commonwealth, in which (to use Charteris’s paraphrase) Forsey “lays down as a principal [sic] that if supply is refused this always makes it constitutionally proper to grant a dissolution”. Hocking then describes the Canadian crisis of 1926 in political terms and seeks to suggest that Kerr was influenced by this postscript to act as he did in withdrawing Whitlam’s commission.

The crisis of 1926, and Charteris’s brief reference to Forsey’s rubric, concerned a quite different aspect of the reserve powers—granting a request for the dissolution of parliament, which is precisely what Whitlam refused to request—but there is no evidence that it had any such effect on Kerr. Kerr never raises Forsey’s views in any subsequent letter, nor does Charteris. Kerr and Charteris agree that the crisis has to be worked out in Australia, and in the correspondence leading up to the dismissal Kerr’s focus is entirely on Australian precedents and authorities, including Hasluck’s explanation of the role of the Governor-General.

Hocking sees significance in the fact that Charteris’s letter to Kerr of November 5 was the last one before the dismissal. It is not evident, from the National Archives copies of the Letters, when they were actually received. There was some delay in the diplomatic bag due to cost cutting by the government due to the impending lack of supply. But it is worth noting that on November 6, Kerr finally received the advice he had requested from the law officers, provided to him in person by Enderby. The story of this incident is told in Kerr’s later letter to Charteris dated November 20. Enderby produced a “draft opinion” on which the Solicitor-General’s signature had been affixed and then crossed out. The opinion stated that the reserve powers existed but that due to the rarity of their exercise there was “grave doubt” they could be used to effect a “forced dissolution”. No final advice was provided to Kerr before the dismissal. This was a disgraceful way to treat the Governor-General. The Attorney-General’s department leaked the draft opinion to the press after the dismissal. With Sir Garfield Barwick’s permission, Kerr released the Chief Justice’s clear non-draft advice.

As to providing positive encouragement in “the sacking of Whitlam”, the allegation is that Charteris had encouraged Kerr to believe the reserve powers existed, and assured him in a letter dated November 5 that whatever decision he made would “not be disavowed” by the Queen[68]. This is unremarkable given that the Queen was fixed with whatever decision Kerr made, given that only he could exercise the executive power (including the reserve powers) vested in her by the Constitution. But what Charteris wrote did not express an intention to support or disavow Kerr’s decision in any way; he only expressed a confidence that if Kerr acted constitutionally, he would not damage the Monarchy in Australia:

I think it is good people should know that The Queen is being kept informed, but, of course, this does not mean that she has any wish to intervene even if she had the constitutional power to do so. The crisis, as you say, has to be worked out in Australia.

There is one Palace Letter which has been public since 1975 and which Hocking derides but cannot disprove the truth of: on November 12 the Speaker, Gordon Scholes, wrote to the Queen asking her, contrary to the 1930 Imperial Conference declarations, to restore Whitlam as Prime Minister. In his reply of November 17 Charteris wrote:

As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of The Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.

Scholes later told the Australian that he thought the dismissal was legal but “morally wrong” and was not surprised the Queen refused his request, which he did not see as an endorsement of Kerr’s action[69].

Hocking’s main allegations are not borne out by the Letters. She has fought a great fight and succeeded through sheer persistence and the contingencies of litigation in obtaining access to the Letters. But the overtly one-eyed and emotional approach to explaining what they reveal does not do worthwhile service to what she claims to wish to advance—the unselective, mature and edifying articulation of “our history”. Perhaps the last word should go to Kerr:

The debate about what I did has been contributed to partly by lawyers but dominantly by academics who are not lawyers and who clearly do not understand anything at all about our Constitution[70]. [November 24, 1975]

Of course there are many scientists, artists, academics, writers and others completely unversed in constitutional law who have responded emotionally and from their special political point of view, as chemical engineers or painters or psychologists and so on have condemned what I did. Naturally, I do not complain about this. Politics is politics and people are entitled to line up for whatever emotional reason appeals to them.[71] [November 28, 1975]

But we should not pretend such polemics are “our history”.

The Palace Letters: The Queen, the Governor-General and the Plot to Dismiss Gough Whitlam
by Jenny Hocking
Scribe, 2020, 288 pages, $32.99

[1] ‘”That is wrong in law”: Turnbull tried to bring in Governor-General in last-ditch act’, Sydney Morning Herald, 27 June 2019

[2] Page 29

[3] Page 29

[4] Sections 6(3) and 31

[5] Section 3(1)

[6] Senate Hansard, 2 June 1983

[7] [2018] FCA 340 at [107], [132]

[8] [2013] HCA 52, (2013) 249 CLR 645 at [38]

[9] At [114]

[10] At [118]

[11] At [119]

[12] At [90]-[91], [95]-[96]

[13] At [61], [88]-[89]

[14] Kline at [37]

[15] Kline at [39]

[16] (1978) 142 CLR 1

[17] Sankey v Whitlam at p 40

[18] At pp 40, 49, 98

[19] Page 177; Queale Memorial Lecture, delivered at the University of Adelaide, 24 October 1972

[20] Winterton, op cit, page 32; see also the Full Federal Court’s reference to the Balfour Declaration of 1926 at paragraph [93]

[21] The Queale lecture again, also Z Cowen, The Office of Governor-General (1985) 114 Daedalus, No 1, 127, Winterton op cit, page 31

[22] Hocking v Director-General of National Archives of Australia [2020] HCA 19

[23] [2020] HCA 19, (2020) 94 ALJR 569 at [94], [98]-[99]

[24] At [115]-[118]

[25] At [122]

[26] At [107]

[27] At [117]-[118]

[28] At [123]

[29] Pages 162-163

[30] Except for the dissenting judge, Justice Nettle, who turns out to be Wanton Professor

[31] Page 54

[32] For example, pages 30, 35, 37, 54, 61, 63-65, 70, 79, 95, 119 and 156

[33] Page 35

[34] Page 17

[35] H V Evatt, The King and His Dominion Governors, London 1967 (2nd ed), G Marshall, Constitutional Conventions, OUP, 1984 chapters 2 and 3; including republicans: see G Winterton, Monarchy to Republic, OUP, 1986, page 31

[36] Ibid.; Paul Kelly, November 1975, Allen & Unwin, 1995; Sir Zelman Cowen, Crown and Representative in the Commonwealth, Blackburn Lecture, 29 August 1991; Hasluck, Queale Lecture, 1972; D Markwell, The Office of Governor-General, [2015] MelbULawRev 13

[37] Imperial Conference 1930, Summary of Proceedings, , Part VI(g)

[38] Page 193

[39] Page 203

[40] Pages 173, 175

[41] Pages 174-176

[42] Pages 176-177

[43] Page 25

[44] Page 21

[45] Pages 25, 35, 54, 171-172, 216

[46] Available at naa.gov.au/explore-collection/kerr-palace-letters#read

[47] Page 172

[48] Page 177

[49] Pages 22, 177, 190, 202- 203

[50] Page 25

[51] Kerr to Charteris, 22 October 1975

[52] Page 205-206

[53] Op cit, pages 31, 44-45

[54] Ibid., page 47

[55] Kerr to Charteris, 20 September 1975; see also Kerr to Charteris, 30 October 1975

[56] Kerr to Charteris, 27 October 1975

[57] Kerr to Charteris, 6 November 1975

[58] Kerr to Charteris, 20 September 1975

[59] Pages 18-19

[60] Kerr to Charteris, 30 September 1975

[61] Attachment to letter Kerr to Charteris, 11 November 1975

[62] Page 21

[63] Paul Kelly and Troy Bramston, MUP, 2020

[64] Ibid., page 59

[65] Page 216

[66] Page 209

[67] Charteris to Kerr, 5 November 1975

[68] Pages 208-209, 230

[69] The Australian, 26 November 1975, attachment to Kerr to Charteris, 28 November 1975

[70] Kerr to Charteris, 24 November 1975

[71] Kerr to Charteris, 28 November 1975