‘”For the sake of the Monarchy”: How the Palace letters have recast the history of the dismissal of the Whitlam government’
Professor Jenny Hocking
Dymphna Clark Lecture. Canberra. 18 November 2020
Dymphna Clark was a brilliant scholar, an exceptional linguist and a prodigious intellectual. With great generosity and foresight she ensured that her home in Canberra was established for posterity as a place of ideas, of debate, and of reflection, as Manning Clark House, and I am assured that Dymphna Clark declined all efforts to include her own name in it. It is a marvellous gift to all Australians, a wonderful legacy and a fitting tribute to her. For all those who, like me, never had the opportunity to meet Dymphna Clark, it has been a great privilege over the years for me to have spoken at the place of ideas she created, and to feel, in some small way, a part of the great cultural and intellectual ferment that Manning Clark House has become famous for.
It is a very great honour and privilege to deliver the 16th Dymphna Clark lecture tonight.
In July this year, hundreds of previously secret letters between the Queen and the Governor-General, Sir John Kerr, relating to Kerr’s unprecedented dismissal of the Whitlam government on 11 November 1975, were released to the Australian public. These are the ‘Palace letters’ and, with two hundred and twelve letters and twelve hundred pages in total, they are the greatest addition to the history of the dismissal in years, since I revealed the role of the High Court judge Sir Anthony Mason in my biography of Whitlam in 2012.
Time and again these remarkable letters show that the Queen, through her private secretary, Sir Martin Charteris, engaged in intensely political discussions with the Governor-General, including the existence and possible use of the reserve powers against the government. Former Prime Minister, Malcolm Turnbull, in his marvellous Foreword to my book The Palace Letters concludes, ‘Kerr made it very clear to Charteris that he was contemplating dismissing Whitlam and Charteris did nothing to discourage him. In fact some of his correspondence can be read as encouraging him to do so’.
Despite their undoubted historical significance, these pivotal letters which were held in our own National Archives, had been locked away from public view, embargoed by the Queen, potentially indefinitely, under the label of ‘personal’. This was an untenable description of letters between the two people at the apex of a constitutional monarchy during the greatest political crisis in our history. The label ‘personal’ simply reflected the presumption of ‘royal secrecy’ that had held over all correspondence between the monarch and Prime Ministers, governors and governors-general for centuries.
Reflexively acceding to ‘Royal secrecy’ as a means of blanket exclusion from our own historical archives is deeply antithetical to the expectations of transparency and accountability, and contrary to the core functions of the National Archives of Australia.
I believe that all history should be public history and that Australians have a right to know their own history and in 2016 I commenced action in the Federal Court, against the National Archives seeking the release of the Palace letters. Buckingham Palace argued strongly against their release when the case began in the Federal Court, as did the Governor-General’s official secretary, even claiming their continued secrecy was essential ‘to preserve the constitutional position of the Monarch and the Monarchy’. As I describe in my book The Palace Letters, By the time the case reached the High Court, the federal A-G Christian Porter had joined with the Archives and we faced a formidable institutional barrier in seeking public access to the Palace letters.
In May this year, after four years of legal action, the High Court of Australia ruled in an emphatic and historic 6:1 decision, that the palace letters are not ‘personal’, paving the way for their release. This landmark decision was against the express wishes and expectations of the Queen, as the High Court judgments made clear. With this remarkable decision from our highest court, we have achieved a world first among the commonwealth nations, overturning the arcane notion of royal secrecy and enabling all Australians to know this part of our history.
In rejecting this presumption of Royal secrecy and fear of imminent Monarchical collapse, the High Court has enforced a measure of transparency and accountability over a Monarch and a Monarchy once seen as untouchable. The significance of the decision and its ramifications is tremendous, beginning with the release of the letters themselves and moving beyond that, as a precedent for the release of other royal correspondence here and elsewhere.
The release of the Palace letters reminds us that no history is ever settled. It is an endless tussle with the past, emerging in fragments, slipping out from the archives, from personal reminiscences, and long-forgotten dusty files, decades after the events they describe. Hilary Mantel terms this fragile historical bedrock, the ‘scraps of writing, pieces of cloth’ left in the sieve after the passage of time has run through them. And nowhere is this more so than for the history of the dismissal of the Whitlam government, one of the most tumultuous events in Australia’s political history.
Although forty-five years have passed since that extraordinary episode, the dismissal continues to agitate scholars, politicians, and the Australian public alike. Kerr’s actions in dismissing without warning, an elected government which retained the confidence of the House of Representatives at all times, was an unprecedented and contentious use of the ‘reserve powers’, debate about which continues even today. In place of the Whitlam government, which had been elected in December 1972 and re-elected in May 1974, Kerr appointed as Prime Minister the Liberal party leader, Malcolm Fraser, whose party had lost the previous two elections and who did not have the confidence of the House of Representatives.
The dismissal remains one of the most divisive and contested episodes in our political history. And the history of it has been no different. In the 45 years since, historical certainties that were once considered settled, have shattered as new material came to light. There’s a simple reason for that continuing resonance – the essential element of secrecy behind the dismissal, which left so much unknown to the Prime Minister at the time, and whichkept so much hidden from its history since. The determination by the key protagonists to keep their roles hidden from public view is a recurrent theme in the unfolding historical recalibration.
Since the history of the dismissal has altered irrevocably from its earliest iterations, let me just recap those events as we now know them to be, as opposed to what we understood them to be at the time.
At 1pm on 11 November 1975, the Prime Minister Gough Whitlam arrived at Government House, Yarralumla, to sign off on arrangements for the half-Senate election which had been agreed with the Governor-General over the previous few days, and which Whitlam was to announce in the House of Representatives that afternoon. Whitlam had confirmed the wording of the announcement, with Kerr on the very morning of 11 November.
For nearly four weeks, the Opposition Senators had refused to vote on the government’s Supply bills, returning the Bills to the House demanding that the government call an election before it would consider them. In the new political vernacular, Supply was ‘blocked’ – not rejected, not even voted on, just blocked. Calling the half-Senate election, which was due at that time, had been the government’s resolution to this untold situation from the outset.
When Whitlam arrived at Government House, he carried with him the letter he had discussed with Kerr just two hours earlier, setting the dates for the issuing of writs by state Governors. As Whitlam handed his letter to the Governor-General, Kerr said ‘I have a letter of my own’, and handed the Prime Minister a letter, which he had already signed, terminating Whitlam’s commission and that of his entire ministry.
Gough Whitlam later described this to me, as ‘the greatest shock I had ever experienced’. He left Government House the way he had entered, down the long Yarralumla corridor, unaware that the leader of the Opposition, Malcolm Fraser, was waiting in an ante-room at the other end of the corridor, emerging immediately after Whitlam’s departure to be sworn in as Prime Minister.
The House of Representatives and the Senate both resumed sitting one hour after the dismissal, with many members still unaware that the government had been dismissed. One hour later, Malcolm Fraser rose and announced he had already been commissioned as Prime Minister by Kerr, and the House erupted. Fraser then lost a motion of confidence, by ten votes. That same motion affirmed the confidence of the House in Whitlam and requested the Governor-General to recommission a government led by him. The Speaker was despatched to Yarralumla to inform the Governor-General of its motion on the formation of government. Since supply had also been passed by the Senate, Whitlam expected to be back in office later that afternoon.
In an extraordinary series of events which I term the ‘second dismissal’, Fraser refused to resign as Prime Minister despite the motion of no confidence against him, and Kerr refused either to acknowledge the motion of the House, or to receive the Speaker. Kerr then dissolved both Houses of parliament to hold a double dissolution election, with Fraser still in office as Prime Minister.
As that most tumultuous day ended, with the government now in opposition and the opposition now in government, the battle over its history began.
In the years to follow, the historical representation of the dismissal – how it was written about, how it was analysed, even its most basic facts – became as divided and as polarizing as the dismissal itself. A dominant ‘dismissal narrative’ soon took shape, a received version, which was marked by errors, omissions and, too often, deliberate distortion.
Central to this was the view that Kerr acted alone, that this was a solo act by a reluctant Governor-General, that the leader of the Opposition did not know, that the Queen did not know, and that Kerr had no option but to dismiss the government. As Kerr later wrote, ‘I made up my mind on my own part’. Or in the words of the veteran journalist Alan Reid, Kerr reached ‘a lonely and agonizing decision’. It was simple, straightforward – and, we now know, untrue.
The dismissal as we understand it today, is vastly different from the solo act depicted by both the Governor-General and the newly appointed Prime Minister, Malcolm Fraser, at the time. The four decades since have been, in terms of the dismissal historiography, an on-going project of historical correction, much of it from revelations in Kerr’s own papers in the National Archives.
Gradually, and with increasing momentum in recent years, this long-standing view of the dismissal as Kerr’s solo act of which no-one else knew or was involved, has comprehensively unravelled.
The critical revelation in that transformational history was of the previously unknown role of the High Court justice, Sir Anthony Mason, as the governor-general’s secret confidante and guide over several months, in Kerr’s words, ‘fortifying me for the action I was to take’. Mason’s role extended to drafting a letter of dismissal for the Governor-General. This was an active involvement, and it occurred while Mason was a sitting High Court justice and had been kept secret from the Prime Minister, Gough Whitlam, and from our history for 37 years.
The discovery of that single file was a rare archival moment – one that changed the history of the dismissal forever. It marked a historical turn, a reset, in which the role of others in Kerr’s decision was now acknowledged where it had previously been so strenuously denied. The dismissal narrative, which had for decades hinged on Kerr’s insistence that this had been a solo act, that he had neither consulted with nor revealed his intentions to others, had shifted to one of co-option, deception and collusion, with vastly different implications.
The revelation of Mason’s role was the first of two great tidal waves of archival revelation in this evolving dismissal history – the second occurred this year, with the release of the Palace letters, which have once again turned the dismissal history on its head.
The letters cover the entirety of Kerr’s period in office, July 1974-December 1977, and their number grew markedly from August 1975 as Kerr increased his quite obsessive ‘reporting’ on the Prime Minister, Gough Whitlam, to the Palace. At times Kerr wrote several letters in a single day, all of them to the Queen’s private secretary, Sir Martin Charteris. They provide a magnificent insight into the vice-regal relationship at this time of political crisis, and they finally tell us just what the Queen knew about Kerr’s planning to exercise the reserve powers, and the process through which he reached that decision, in the weeks prior to his dismissal of Whitlam.
In letters ranging from deferential to obsequious, Kerr is revealed as insecure, indiscreet, easily led by flattery, and expertly played by the supercilious, seasoned Palace courtier, Sir Martin Charteris. In his Foreword to The Palace Letters Malcolm Turnbull writes that ‘Kerr’s sycophantic grovelling is stomach churning’. And the constant motif throughout these letters is Kerr’s disparaging of the government and the Prime Minister, Gough Whitlam. Never was a man less suited to the position of Governor-General than Sir John Kerr.
In assessing the Palace letters it’s important to keep in mind two fundamental aspects of a constitutional monarchy. First, is the core requirement that as a constitutional monarch, the Queen must remain politically neutral at all times. The Royal web-site asserts the Queen’s adherence to this defining feature; ‘As Head of State The Queen has to remain strictly neutral with respect to political matters’.
The second and related element is ‘the cardinal principle’ in a constitutional monarchy, that the Monarch, and equally her representative the Governor-General, acts on the advice of elected government. The 1930 Imperial Conference referred to this as ‘The constitutional practice that His Majesty acts on the advice of responsible Ministers’. Kerr himself acknowledged this core principle just weeks before he dismissed Whitlam, referring to his ‘plain duty … to adhere to the fundamental principle of responsible government and follow the advice of my Ministers’. [Vol II :316] The Palace letters show that just as he was publicly insisting on his constitutional propriety in acting on advice, Kerr was in fact writing to Charteris suggesting that he would not.
These two core requirements, political neutrality and acting on advice, are the essential means of resolving the contradiction that lies at the heart of a constitutional monarchy – between parliamentary democracy on the one hand and an unelected hereditary monarchy on the other. Adherence to those core tenets is fundamental to maintaining the integrity of a Constitutional monarchy within a parliamentary structure. There is no doubt that in their political nature these letters breached the claimed convention of political neutrality absolutely.
From his first letter of 15 August 1974, barely a month into the job, Kerr cavils against the government over the proclamation for the historic Joint Sitting of parliament which followed Whitlam’s re-election at the double dissolution election in May. Kerr disputes the advice from the solicitor-general, and the head of Attorney-General’s department, and the attorney-general, that all six ‘trigger’ bills from that election could be put before the Joint Sitting. Kerr knew better, telling the Queen that he ‘was highly doubtful’ this was correct. The High Court soon found otherwise.
This was just the first of a litany of depredations in what can only be seen as the most extraordinary vice-regal undermining of elected government in the Palace letters. Kerr rails against policy decisions, queries appointments, and reveals details of Executive Council meetings, the most important and highly confidential meetings of Executive government. By 1975 he has moved from doubting the government to openly defying it, including even disputing Whitlam’s advice to him as Governor-General, advice he is bound to take. In an astonishing letter of 4 January 1975, Kerr even asks Charteris, to advise him on ‘ways of handling’ matters with Whitlam when faced with advice from the Prime Minister with which Kerr disagrees. Kerr told Charteris; ‘it is extremely difficult for me if I have firm and official advice from the Prime Minister.’
There is a touch of the absurd and arcane in Kerr’s simpering concern over whether he ought to wear ‘full morning dress and decorations’ at his swearing in (Whitlam had suggested he wear lounge-suit), Charteris however assured him that he was ‘right to wear morning dress’ – a petty, yet significant, over-riding of the Prime Minister’s wishes by the Queen’s private secretary. Kerr continues, fretting about whether ‘the curtesy by ladies’ should continue in his vice-regal presence; whether there should be four or six bars in the vice-regal salute; and the order of precedence for dignitaries about which he is particularly exercised.
The most surprising and disturbing element in the letters however, is the extent to which Charteris engages with Kerr on these matters, including the possible use of the reserve powers, all of it secret from the Prime Minister, whose formal advice is rarely raised or considered. Turnbull writes that he, ‘had expected Sir Martin would reply with little more than a brief polite acknowledgement. That would have been the more tactful response. But … Charteris and Kerr conferred on the political and constitutional circumstances of the time in considerable detail’. Quite simply, these are conversations in which Charteris should never have engaged.
The letters indicate that, from as early as September 1975, the Palace knew that Kerr was considering dismissing the government and that he was remaining ‘silent’ to the Prime Minister out of concern for his own position. And worse, the Queen, Prince Charles and Charteris, all knew that. This is revealed in a crucial letter from Charteris on 2 October 1975, two weeks before the opposition deferred a vote on supply in the Senate. When the Palace letters were released, this was the first letter I looked for. It is pivotal in unravelling the prior knowledge of the Palace of the prospect of Whitlam’s dismissal.
This letter confirms the details about a crucial conversation Kerr had with Prince Charles at the PNG Independence Day celebrations in Port Moresby in September 1975, in which Kerr had told Prince Charles that he was ‘considering having to dismiss the government’, and that he feared Whitlam may seek his recall if he found out about it. Kerr had detailed this in a Journal, which is in his papers and which I revealed in my biography of Whitlam.
In his letter to Kerr confirming this account, Charteris writes that Prince Charles had told the Queen about his conversation with Kerr, and that he had relayed to her Kerr’s concern that Whitlam might recall him as governor-general:
Prince Charles told me a good deal of his conversation with you and in particular that you had spoken of the possibility of the Prime Minister advising The Queen to terminate your Commission with the object, presumably, of replacing you with someone more amenable to his wishes. If such an approach was made you may be sure that 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.
These are powerful words to a governor-general who is considering the possible use of the reserve powers. To quote Malcolm Turnbull again, ‘This advice no doubt reinforced Kerr in concluding that to forestall any risk of Whitlam sacking him, he would need to give him no, or very little, warning of his intention.’
There is nothing neutral in Charteris’s acceptance of Kerr’s assertion that Whitlam might seek his recall ‘with the object, presumably, of replacing you with someone more amenable to his wishes’, nor in the Queen’s expression of displeasure and that ‘she would take most unkindly to it’ at the prospect of advice from Whitlam to recall Kerr, which is a matter solely for the prime minister to determine. And ‘there is nothing in the letters indicating the same attitude if Kerr dismissed Whitlam’, which is the essential context to this exchange.
The involvement of the Queen in any discussion with Kerr about his tenure as governor-general, unknown to the prime minister, was manifestly improper. The appointment or recall of a governor-general is unquestionably a decision for the Australian prime minister alone, and has been since Labor prime minister James Scullin’s testy and firm advice to King George V in 1930 on the appointment of Sir Isaac Isaacs as governor-general. The sole channel of advice was specified and agreed at the 1930 Imperial Conference, which reported specifically on the appointment and recall of a governor-general by the monarch as being solely on the advice of the Prime Minister. The chain of communication regarding a governor-general’s tenure was quite specific and agreed across the commonwealth, it was between the Prime Minister and the monarch, and would involve no other party.
The only two people who should have had a discussion about Kerr’s tenure as governor-general were the prime minister, Gough Whitlam, and the Queen. For the Queen to discuss the question of his tenure with Kerr himself, much less express a political view that ‘she would take most unkindly to it’ should the prime minister decide to recall him, was an appalling breach of that elemental relationship as set out in the Statute of Westminster.
The affirmation this gave Kerr while he was ‘considering having to dismiss the government’, as Prince Charles put it, is stark. A more profound breach of the defining relationship between the monarch and the prime minister in a constitutional monarchy can scarcely be imagined.
When I first revealed this critical exchange between Kerr, Prince Charles, and Charteris, it was dismissed by some still clinging to the view that the Queen had played no role in Kerr’s decision to dismiss the government as ‘unsubstantiated’, a mere ‘conspiracy’, and as ‘a direct assault on the integrity of the Queen and Governor-General’ for which, it claimed, there was no evidence. ‘Charteris’ letter has never been cited’, they proclaimed. Well now, with the release of the Palace letters, it has been. The risible claims of ‘conspiracy’ to dispel the unpalatable, yet inescapable, conclusion of Palace involvement in Kerr’s decision to dismiss Whitlam, is no substitute for sustained historical analysis.
The nub of the problem in this miscast political narrative can be seen in Kerr’s acknowledgment that he had not spoken to the Prime Minister about the political matters at hand. Charteris at no point reminds Kerr of his fundamental responsibility as Governor-General – to advise, to counsel and to warn his Prime Minister – and continues to discuss these matters with him, secret from the Prime Minister. This is a preposterous position for any Governor-General to take, and for any Prime Minister to be placed in. In my view, Kerr should at this point have resigned, being unable to fulfill the most basic requirements of his position as Governor-General.
Kerr’s predecessor Governor-General, Sir Paul Hasluck describes communication and openness as being at the heart of the proper relationship between the governor-general and the prime minister, his chief advisor: ‘With the Prime Minister the Governor-General can be expected to talk with frankness and friendliness, to question, discuss, suggest and counsel.’ Without this openness, with only ‘silence’ towards the prime minister aa Kerr himself described it, what role can a governor-general play other than one of his own autocratic determination?
Where the Palace letters are at the most egregious, and in my view at their most improper, is in their discussions about the possible use of the reserve powers, the arcane residual powers of the Crown through which a prime minister can be despatched and another appointed, and a dissolution forced. It is here that the political dimension of the letters is laid bare. Far from remaining ‘strictly neutral’ in relation to political matters and above politics, it is difficult to imagine a greater level of political involvement than this.
These discussions begin in earnest in mid-September 1975, with two letters from Kerr raising the prospect of supply being blocked, of Whitlam refusing to call a general election and, Kerr having to consider a forced election. On 20 September 1975, Kerr tells Charteris that ‘if Mr Whitlam will not advise one, I may have to find someone who will’. Kerr has raised this same question in more general terms the previous week. This is the first indication in the Palace letters that the dismissal of Whitlam as prime minister and his replacement by another was being considered by Kerr and conveyed to Charteris, matters which he was also raising with Prince Charles at the same time in their conversation in Port Moresby.
Charteris’ reply to Kerr’s letter of mid-September is significant, and has been largely overlooked in the extensive commentary on the letters thus far. In a hand-written addendum to his reply on 24 September, Charteris points Kerr to the work of Canadian theorist and Senator Eugene Forsey on the reserve powers. In responding to Kerr’s suggestion that he might have to find an alternative Prime Minister who would advise an election, Charteris notes Forsey’s ‘principle’ that ‘if Supply is refused that always makes it constitutionally proper to grant a dissolution’.
Mark Tedeschi QC, former New South Wales Senior Crown Prosecutor has observed in relation to this most significant exchange: ‘Was the Queen’s Private Secretary … implicitly expressing a view, based on an eminent constitutional expert, that in the event of supply being refused it was always constitutionally proper to grant a dissolution? Did
Sir John Kerr view this response from Sir Martin Charteris as encouragement to disregard the advice of the Australian Prime Minister of the day and, if necessary, act unilaterally in achieving a dissolution of Parliament by other means? That is precisely what Sir John did just 48 days later.’
So, who was Eugene Forsey, the person of whom the Queen’s private secretary felt so highly that he confidently pressed his work on our governor-general at such a critical time? In Charteris’s own words, Forsey was a ‘stalwart upholder of the prerogative of the Crown’. He was described as a constitutional conservative, a ‘royalist radical’ with ‘a profound reverence for British Tory constitutionalism’, and a strong proponent of the existence and use of the reserve powers. And Eugene Forsey was also ignorant of the specifics of the Australian situation.
Forsey’s knowledge of Australian political matters can be gauged from the fact that he thought there was no such thing as a half Senate election – the election which just happened to be the Prime Minister advice to Kerr. The Canadian High Commission reported that Forsey, ‘could find no mention of such an election in the Australian constitution’. Yet this is the ‘expert’ the Queen’s private secretary urged upon Kerr.
In my book The Palace Letters I reveal for the first time a remarkable holding of letters between Kerr and Forsey in the Canadian Archives, which show just how significant that constitutional prompt by Charteris was. Kerr tells Forsey that a ‘highly placed person’ had drawn Forsey’s name to his attention, and writes, ‘As a result of this, before the supply crisis I borrowed your book from the Canadian High Commissioner and both before and during the crisis studied it carefully.’ This in turn, as Kerr tells Forsey, played a critical role in his decision to dismiss the government. ‘Your writings gave me important guidance in reaching my conclusion’. The part played by Charteris’ advice to Kerr in these letters is clear and quite explicit. Kerr here details the trajectory. After all, according to Charteris, if supply is blocked it is always ‘constitutionally proper to grant a dissolution’.
In fact, the status of the reserve powers in Australia at that time was by no means settled as this implied. They had for decades been the subject of intense legal and political debate as to their continued existence in a modern post-colonial nation, now that the expectations of responsible government had overtaken the notion of residual powers of the crown that might once have enabled the monarch to act unilaterally. The existence of the reserve powers was at that time highly contested, if not denied. Many believed that, with the passage of time, and the infusion of the sentiments of responsible government through the parliament as the embodiment of the popular will, the notion of the Crown’s reserve powers – a residue of the doctrine of the divine right of kings – was antithetical to democratic governance and had long since fallen into desuetude.
In 1973, for instance, Professor Markesinis argued that, ‘the right to dissolve and to time dissolution is nowadays a prime ministerial prerogative’. In 1965, Professor Crisp wrote that the decisions of the 1926 and 1930 Imperial Conferences, and the passage of the Statute of Westminster, ‘have converged to strip away most of the substance of his [the Governor-General’s] prerogative and discretionary powers .. almost to vanishing point. Today his principal powers are exercised and functions performed, probably without exception, on the advice of his Ministers’.
The Commonwealth solicitor-general, Sir Maurice Byers, was later even more emphatic: ‘The reserve powers are a fiction. They don’t exist. You can’t have an autocratic power which is destructive of the granted authority to the people. They just can’t coexist. Therefore you can’t have a reserve power because you are saying the Governor-General can override the people’s choice … and that’s a nonsense.’
On 21 October 1975, with supply now blocked in the Senate for nearly a week, Whitlam asked the Australian law officers – Sir Maurice Byers and the attorney-general, Kep Enderby – to prepare a joint opinion for Kerr on just this question of the reserve powers, and whether they could be used in the current situation. In a key letter from Kerr to Charteris, while the law officers’ joint opinion is being prepared for him, Kerr writes that he expects that the law officers will advise him that the reserve powers do not exist, or at least are not applicable in this instance. Which is precisely what they did advise him two weeks later.
One of the most important letters from Kerr in the Palace letters then follows, and I have reproduced this letter in my book The Palace Letters because it is so significant, Kerr writes that he would not necessarily accept the advice of the Australian law officers, his constitutional advisors: telling Charteris; ‘it does not follow that in an extreme Constitutional crisis I would accept that’.
In this declaration, three weeks before the dismissal, Kerr has let the Queen know that he is prepared to act against the advice of his Prime Minister and the legal advisors on the question of the use of the reserve powers, before he has even received that advice. And at no stage after this extraordinary statement of vice-regal discretionary abrogation does Charteris express concern that Kerr is contemplating such a breach of his constitutional relationship, or remind him to speak to his prime minister, or even ask him what the advice of the law officers actually was.
It appears that Kerr’s formal advice from his responsible ministers is, to Sir Martin Charteris, immaterial.
Nor does Kerr tell Charteris anything about the joint opinion that he then received from the law officers on 6 November 1975, five days before he dismissed the government. That advice was that the reserve powers had most likely fallen into desuetude, or disuse, as relics of a sovereign power not used for nearly two centuries, and that there was no basis for their use in the current parliamentary stalemate. As he delivered the opinion to Kerr, the attorney-general, Kep Enderby, told him in even stronger terms that in his view the reserve powers did not exist.
The Opinion stated that ‘no Government has been dismissed by the Sovereign since 1783’, and that ‘their very rarity and the long years since their exercise cast the gravest doubt upon the present existence of that prerogative’. It concluded that, ‘The mere threat of or indeed the actual rejection of Supply neither calls for the ministry to resign nor compels the Crown’s representative thereupon to intervene.’ Yet Charteris has already advised him otherwise.
The following week Kerr tells Charteris that he is concerned that any decision he makes regarding the use of the reserve powers could ‘affect the Monarchy in Australia’. As an avowed monarchist, Kerr is concerned about the possible negative impact of the use of the reserve powers on the monarchy. In stark contrast to his reluctance to accept the advice of the government on that very question, he asks Charteris to provide input into his decision on the use of the reserve powers, specifically in relation to ‘any observations … which … should be taken into account in the interests of the Monarchy in Australia’. The involvement of Charteris in Kerr’s decision-making could not be clearer. Far from the Palace having ‘no part to play’ in his decision, as they continue to claim, Kerr himself had sought input from Charteris in his decision, and used it.
These letters on the reserve powers provide the essential context for the two pivotal letters which then follow from the Queen. On 4 November 1975, Charteris tells Kerr in no uncertain terms that the contested and controversial reserve powers do exist and ‘that you have the power is known’. To whom is it known? Not to the Prime Minister and not to the Australian law officers. It is ‘known’ to the Palace. There was no mention by Charteris of the advice that Kerr had already told him he was expecting from the law officers, contrary to that view.
In a letter the next day, his final letter before the dismissal, Charteris makes an even more direct reference to the use of the reserve powers, specifically assuaging Kerr’s concern that any decision he made might adversely affect the Monarchy. Far from urging caution as some have claimed, Charteris reassures Kerr; ‘If you do, as you will, what the constitution dictates, you cannot possibly do the Monarchy any avoidable harm. The chances are you will do it good’.
These letters, with their clear and direct political prescription, make a mockery of the claim that the Queen played ‘no part’ in the decision that Kerr then made just days later, to exercise the reserve powers and dismiss the Whitlam government.
Professor Chris Wallace concluded that the letters show the Queen, through Charteris, ‘providing not just comfort but actual encouragement to the governor-general in his sacking of the government’. It is simply impossible to read these letters, their consideration of the use of the reserve powers to dismiss the elected government and dissolve the parliament, secret from the Prime Minister and against the advice of the chief law officers, and conclude otherwise. As The Monthly archly observed, ‘No respectable historian’ could accept that the Queen played ‘no role’ in Kerr’s decision to dismiss Whitlam.
The desultory consideration in these letters of the government’s actual, formal response to the deferral of supply – the half-Senate election – on which Kerr knew he would be bound to accept the Prime Minister’s advice, reflects the selective and highly politicised nature of the letters. Although Kerr writes that he is providing the Queen with the real picture of political events, he does no such thing. Kerr did not tell Charteris that he had received the joint advice of the law officers on 6 November. Nor did Kerr tell Charteris that Whitlam had advised him on 6 November that he would call the half-Senate election on 11 November 1975 if supply had not then been passed.
The day after the dismissal, 12 November 1975, the Speaker of the House of Representatives, Gordon Scholes, wrote to the Queen, pointing to ‘the danger to parliamentary democracy’ of a prime minister ‘imposed on the nation by Royal prerogative rather than through parliamentary endorsement’.
Charteris replies to Scholes the following week, stating that: ‘The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution.’ And the Palace continues to claim, just as it did forty-five years ago, that Kerr’s discussions with Charteris, with Prince Charles, and the Queen, played no part in his decision to dismiss the government. This unchanged position, maintained more in faith than in fact, is simply impossible to reconcile with the history as we now know it.
The Palace letters have demolished that claim, making a mockery of the vaunted ‘political neutrality of the Crown’. They reveal the Queen, through Charteris, to have engaged with Kerr in consideration of the most controversial and quintessential political matters, including the refusal of the governor-general to follow the advice of his responsible ministers, the use of the reserve powers against that advice, and the possible dismissal without warning of the government that retained its majority in the House of Representatives. In this litany of institutional improprieties, these breaches of the essence of the vice-regal relationship are surely the most egregious.
They show that the Queen knew as early as September 1975 that Kerr was considering dismissing the government and, worse, knew of his failure to warn the prime minister about that possibility – the central responsibility of a governor-general which even Kerr’s closest supporters now concede was his greatest failing. The Palace knew what the Australian prime minister did not.
Starkly absent from these discussions was any consideration of Kerr’s cardinal duty, to speak to his elected ministers and to ask that most fundamental question, ‘What does your prime minister say?’ For a constitutional monarch who must remain politically neutral at all times, this was unconscionable.