Jenny Hocking

 

The dismissal of the Whitlam government by the Governor-General, Sir John Kerr, was marked by secrecy and collusion on a scale that has only recently been uncovered. Its history has been no different. From the outset we were treated to a carefully constructed narrative that masked the Governor-General’s secret collusion with members of the High Court, with the leader of the Opposition, Malcolm Fraser, and his acknowledged deception of Whitlam regarding the half-Senate election that Whitlam was set to announce on the afternoon of 11 November 1975.

All of this, and more, has come to light only in recent years, much of it with the continuing revelations from Kerr’s papers in the National Archives of Australia. These included Kerr’s remarkable 12-page record of his lengthy secret discussions with the High Court justice, Sir Anthony Mason, and Mason’s own drafting of the letter of dismissal for Kerr. With those revelations in Gough Whitlam: His Time in 2012, others soon followed. LINK: http://www.smh.com.au/federal-politics/political-news/revealed-the-third-man-in-the-dismissal-20120824-24rv2.html A combination of the posthumous records of key participants, historical reinterpretation and detailed exploration of Kerr’s papers, has changed our understanding of the dismissal forever. Chief among these was final confirmation of Kerr’s secret telephone conversations with Fraser in the week before the dismissal, an unconscionable betrayal of the very essence of parliamentary government that had been repeatedly and emphatically denied by Kerr and Fraser for decades. LINK: http://www.crikey.com.au/2015/11/02/after-40-years-the-smoking-gun-proves-who-was-behind-the-dismissal/?wpmp_switcher=mobile

Although we are now much clearer on the reality of that exceptional episode in our political history, one key element remains hidden from us, as deliberately and as carefully concealed as every other aspect in that blighted history. These are ‘the Palace letters’, letters between the Governor General and the Queen, her private secretary Sir Martin Charteris, and Prince Charles – in the months leading up to Kerr’s dismissal of Whitlam.

Kerr’s extensive official papers were deposited with the Archives in the early 1980s and were opened for public access, as required after 30 years since the date of their creation, under the Archives Act. But not the Palace letters. Unlike any other part of these papers, Kerr’s correspondence with the Palace is embargoed until 2027. Even once this embargo has been lifted – still more than 10 years away – the Archives say that these letters can only be released if authorised by the Governor-General’s Official Secretary and the Queen’s Private Secretary. In 2027, more than 50 years after the dismissal, according to the Archives we will still be beholden to the Queen’s Private Secretary as to whether to allow the Australian public access to this vital correspondence between Australia’s Governor General and the Palace, during one of the most contentious and significant episodes in our political history.

In denying my several requests for access to the Palace letters, the National Archives referred to Sir John Kerr’s ‘Instrument of Deposit’ in which Kerr had set out the conditions of access to his records. However a corresponding FOI request, which I made in 2015 directly to Government House, elicited a rather different back story. In denying my FOI request Government House stated that these letters had been deposited with the National Archives where they remain ‘under strict embargo’, due not to a decision of Sir John Kerr, but of the Queen; ‘At Her Majesty The Queen’s instructions’.

How has this extraordinary situation come about? How is it that, for Kerr’s correspondence with the Palace, the clear provisions of the Archives Act – to make Commonwealth records available for public access after 30 years – do not apply? The answer is very simple, and it has just two words, ‘personal’ and ‘private’. With that simple designation, ‘personal and private’, the National Archives have removed the Palace letters from the reach of the Archives Act. Since they are ‘personal’ the National Archives say the 30 year access provisions do not apply and, even more worrying, nor do the appeals mechanism provided for by the Archives Act – because that Act applies only to Commonwealth records. The Palace letters then cannot be accessed because they are personal not official, and their designation as ‘personal’ cannot be appealed to the Administrative Appeals Tribunal.

It seems that a very neat, impenetrable, Catch-22 has been created, locking the letters from public view and locking that decision itself from administrative oversight. However, this does not mean, as Paul Kelly and Troy Bramston have erroneously claimed, that the only means for ensuring their release is to appeal to the Queen herself – an unnecessary and humiliating deference given the quasi-colonial relationship this whole matter reflects. Instead, as Sydney barrister Tom Brennan has recently discussed, this is a matter of Australian law and a matter for Australian law to determine. LINK: http://www.13wentworthselbornechambers.com.au/wp-content/uploads/2015/11/AUSTRALIA-OWNS-ITS-HISTORY-Brennan.pdf.  Without the possibility of an appeal to the AAT however, this remains an expensive and daunting prospect. Chalk that up to two very powerful words.

‘Personal and private’ may be powerful covers, but they are also entirely inappropriate. One wonders how it is, from common sense alone, that the Governor-General’s correspondence with the Palace could in any way be seen as ‘personal’ and not official. Even Sir John Kerr himself did not believe that absurdity, far from it. In his autobiography, Matters for Judgment, Kerr describes his correspondence with the Queen during the blocking of Supply in 1975 in terms of his ‘duty’ to keep the Queen informed, as part of the Governor-General’s regular reports to the Queen; ‘There are no rules about how often or in what detail reports are to be made; the duty is simply to send despatches which keep Her Majesty informed’. ‘Duty’, ‘despatches’, keeping ‘Her Majesty informed’ – these are clearly descriptors of official records, not of personal correspondence.

Kerr’s Journal, which he maintained for some months during 1980 and also left in his papers in the Archives, also makes it clear that he had not wanted this correspondence with the Queen to remain embargoed, and that he had explored means of releasing it earlier. Kerr even went as far as prevailing on Sir Philip Moore, Charteris’ successor private secretary to the Queen, to enable the release of the Palace letters. Moore was by Kerr’s account shocked at the very suggestion. Kerr also writes that he would like the correspondence to be released during the lifetime of his children. It was his belief that the Palace letters would validate his own version of these events and he sought their release strongly. If Kerr himself had wanted them released then how and why are they now being withheld on the grounds that Kerr’s own ‘Instrument of Deposit’ with the National Archives specifies that they not be?

Despite the fact that the Palace letters have been removed from public view, Kerr himself provided another means of retrieving them from their pre-emptive closure as ‘personal’. For, among his papers Kerr also left a copy of extracts from some of his letters to the Queen, unidentified as such and placed on open access by the Archives. While working on his memoirs, published in 1978, Kerr had arranged for a copy of his letters to the Palace to be sent to him, as part of his research. He then left extracts from those copies with his material in the Archives in an unidentified file simply titled ‘Extracts of letters’.

There are 6 extracts, which I detailed in The Dismissal Dossier as being from Kerr’s letters to the Queen, dated from 20 September to 20 November 1975. LINK: http://www.huffingtonpost.com.au/jenny-hocking/the-dismissal_b_8516530.html. Each of these extracts describes contemporary political developments as they unfolded. They cover conversations between the Governor-General and the Prime Minister, between the Governor-General and the leader of the Opposition, interactions at an official dinner with the Prime Minister of Malaysia, and at an official reception at Government House in Melbourne. They include the Governor-General’s letter to the Queen of 11 November 1975 setting out his version of the dismissal, by him as Governor-General, of the Prime Minister Gough Whitlam. The content of these letters provides no grounds whatsoever for their description as ‘personal’.

There is quite simply no part of these extracts that could be described as anything other than official – in their nature, their content and in their style. Each letter is typed, each letter is formal and none reveals even a moment of informality, of light-hearted or private reflection. Each considers in some way the serious and unprecedented vice-regal action of removing the Whitlam government that Kerr was soon to take. Most significantly, these extracts from Kerr’s letters to the Queen reveal that the Palace was well aware of the possibility of dismissal and of the Governor-General’s deception of the Prime Minister – the letters themselves were part of that deception – and the abuse of his vice-regal position this constituted, months before Kerr moved to dismiss Whitlam.

The perverse attribution ‘personal and private’ given to the Palace letters can also be measured against a series of personal letters between Sir John Kerr and Prince Charles, held by the Archives. What is decidedly peculiar is that these letters written in 1981, three years after Kerr resigned as Governor-General, have been deemed official Commonwealth records and made available for public access. And yet, they are clearly personal. They are handwritten, on personal letterhead simply headed ‘Sir John R. Kerr’. They are conversational, referring to Charles’ future wife, Princess Diana, their marriage, family and to previous exchanges between them. The ‘Palace letters’ by contrast are typed, they are descriptive and they focus only – at least in the extracts in Kerr’s published papers – on political matters.

It seems both perplexing and troubling that these clearly personal letters between Kerr and Prince Charles have not been subject to the claimed conditions of access to personal records set out in the ‘Instrument of Deposit’ from Kerr to the Archives. We have an Alice in Wonderland situation in which black has become white. The clearly personal letters between Kerr and Prince Charles have been deemed ‘official Commonwealth records’, while the clearly official ‘despatches’ between the Governor-General and the Queen have been deemed ‘personal’. This raises the obvious question as to whether the label ‘personal’ has been applied inappropriately yet conveniently, only to the Palace letters, in an attempt to remove them from the oversight and access requirements of the Archives Act. 

The chronology of the passage of the Archives Act suggests that this is more than just a disturbing possibility. The lodging of Kerr’s papers with the National Archives straddled two critical, related, events – the March 1983 election which saw the Fraser government defeated and the election of the Hawke Labor government, and the passage of the Archives Act later that year. One of the Fraser government’s Bills still before the parliament at the time of the 1983 election was the Archives Bill. With the Fraser government’s defeat the Archives Bill was slightly but significantly revised, and re-presented in 1983 by the Hawke government. A critical change was this: the 1981 Archives Bill did not apply to ‘records of the Governor-General or of a former Governor-General’. Under the Fraser government’s Bill, no records of the Governor-General – or previous Governors-General – would have been made available for public access except in accordance with an Instrument of Deposit.

It seems that had the Fraser government’s Archives Bill prevailed, the revelations of Sir John Kerr’s secret interactions with, and involvement of, Sir Anthony Mason in the dismissal would still be hidden from us today. As it was, the election of the Hawke government resulted in the passage of the Archives Act 1983 that gave no such exemption to the records of Governors-General. We can now see that the use of the words ‘personal and private’ has served that same function, enabling a reversion to the exemption of the Archives Bill as if the Archives Act is merely an arbitrary constraint for a Governor-General. The designation ‘personal and private’ is shielding the Palace letters from public access and historical reflection. Once again the history of the dismissal of the Whitlam government is proving to be as distorted, deceptive and disturbing as the dismissal itself.

 

Professor Jenny Hocking is Gough Whitlam’s biographer and ARC DORA Professorial Fellow with the National Centre for Australian Studies at Monash University. She is the Inaugural Distinguished Whitlam Fellow at Western Sydney University and author of The Dismissal Dossier: Everything You Were Never Meant to Know About November 1975 (MUP 2015)

 

Repost from 10/12/2015

The 40^th anniversary last month of the dismissal of the Whitlam government by the Governor General Sir John Kerr met with the predictable flurry of breathlessly delivered revelations and history-making hyperbole. Among the excitable claims of dramatic new ‘never before released’ material we were offered the charred remains of a burnt Liberal party memo showing – surprise! – dissension in the ranks [http://www.afr.com/news/politics/afr10featuresgraphic–20151110-gkvd2c ]; a found, lost, and found again hand-written note by Malcolm Fraser written during his conversation with the Governor-General on the morning of 11 November 1975 – first revealed in 1986 and reproduced in 2005 and 2010 before its latest rediscovery; and even a statutory declaration from Fraser swearing that, this time, he really was telling the truth about their contested conversation. http://www.theage.com.au/comment/its-time-to-dismiss-knockout-punch-politics-20151105-gkrvzz.html

The dismissal exhibits that rare capacity in political history – to continue to fascinate, animate and agitate us, even decades later. To a large extent this is because, at heart, we have always known that there was more to be told than the potted schematic narrative that had long passed as the history of the dismissal of the Whitlam government. That narrative and that history had changed irrevocably in 2012 with the revelations from Kerr’s archival records of his secret and long denied meetings and communications, all documented in his papers in the National Archives, in Gough Whitlam: His Time. Kerr’s own records had laid bare the extent of his significant secret interactions with the Palace, with the High Court justice Sir Anthony Mason, even with the law school of the ANU, and with the leader of the Opposition Malcolm Fraser. The extraordinary cultivation by the Governor-General of this network of unauthorised advice and support stands in dramatic and total contrast to his calculated deception of the Prime Minister, Gough Whitlam, his decision to ‘remain silent’ to him over this critical period.

And so, as the dust settles on the numerous ‘exclusives’ and the shamelessly recycled old news as new that have marked the 40-year anniversary of the dismissal, have we actually learnt anything new? Two things in particular have emerged from the recent contributions: firstly, that Kerr was in secret contact with the leader of the Opposition Malcolm Fraser not just on the morning of 11 November 1975 but as early as the week before, despite their repeated public denials of this much rumoured contact and despite their mutual assurances to Whitlam that they would meet only with the Prime Minister’s knowledge and approval. This secret communication had been consistently and insistently denied by both Kerr and Fraser and its revelation has been seen as the ‘smoking gun’ of collusion and prior planning in the dismissal that had been suspected for decades. For the Governor General and the leader of the Opposition – between whom there is no constitutional or political relationship – to act in secret and in defiance of the Prime Minister in this way was a complete subversion of Kerr’s fundamental duty to act on the advice of his ministers. That both Fraser and Kerr then kept this contact secret until the end attests to the enormity of their actions and that neither would have been able to remain in office had this become known at the time.

Secondly, we now also know from Kerr’s former Official Secretary David Smith, that he had contacted the Palace on Kerr’s behalf shortly before the dismissal to discuss the Governor General’s overwhelming concern for his own position – his concern that Whitlam might recall him if he became aware that Kerr was secretly considering, together with members of the High Court, the leader of the Opposition and the Palace itself, dismissing him from office. Which would have been an entirely reasonable action on Whitlam’s part given the level of his deception by the Governor General. At the same time, this acknowledgment that Kerr had been in secret contact with the Palace to discuss his own tenure – the prerogative of the Australian Prime Minister to determine – without Whitlam’s knowledge, also confirms Kerr’s description of his communications with the Palace regarding dismissal.

It is simply counter-factual to claim as some commentators do, that the Palace was not aware that Kerr was contemplating dismissing Whitlam, and to claim even that the Queen disagreed with Kerr’s actions. This claim is unsupportable and simply defies the facts as they have now been revealed. From the moment Kerr first mentioned to Prince Charles in September 1975 that he was ‘considering having to dismiss the government’, from where it passed to the Queen’s Private Secretary Sir Martin Charteris and then to the Queen, the Palace was already involved in Kerr’s deliberations. By failing to immediately share this dramatic communication from the Governor General with Whitlam, the Palace was itself playing an active role. Their failure to act told Kerr that there would be no adverse response from the Palace should he act to dismiss Whitlam and it also told Kerr that the Palace would not themselves warn Whitlam of the Governor General’s deception. As I wrote in The Dismissal Dossier, the failure on the part of the Palace either to remind Kerr that he must consult his Prime Minister, or to warn Whitlam themselves of Kerr’s deception, could only be taken as a ‘royal green light’ by Sir John Kerr. And it was.

It is simply astonishing to read the repeated efforts to recast this now clear element in the history as its opposite – to claim that the Palace was somehow embarrassed by Kerr’s actions and even disagreed with it. http://www.abc.net.au/radionational/programs/breakfast/the-dismissal-of-gough-whitlam:-40/6910462 All the evidence shows us otherwise. Within days of the dismissal Kerr received a personal letter of support for his ‘courageous and correct’ actions from the Queen’s cousin, Lord Louis Mountbatten, who then paid Kerr a private visit at Admiralty House early the following year while staying with the new Prime Minister Malcolm Fraser at Kirribilli House. In March 1977 the Queen bestowed on Kerr the highest order of her personal honour, personally investing him as Knight Grand Cross of the Royal Victorian order during her visit to Australia. The Royal Victorian order recognises ‘personal service to the monarchy’ and is ‘entirely within the Sovereign’s personal gift’. Hardly a sign of royal dismay at the Governor-General’s unprecedented action in dismissing the twice elected Prime Minister Gough Whitlam without warning.

Certainly by 1977 the Queen was finding Kerr’s behaviour highly embarrassing – but then, by 1977 everyone was finding Kerr’s behaviour highly embarrassing. That was the year after Kerr’s alcohol fuelled trajectory first landed him face-down in the mud at the Tamworth Show, only to be matched  at the Melbourne Cup where Kerr, in an ill-fitting top hat and tails, gave a repeat performance, this time remaining largely upright as he struggled to award the cup to the owners of the winning horse. Gough Whitlam was moved to consider, ‘how much better a pro-consul the horse would have made’. It is not surprising then that the Queen soon joined the long list of those who then wished the Governor General to make a hasty early retirement, which can hardly be taken as reflecting on the attitude of the Palace to the dismissal two years earlier.

It is now also clear despite the long historical obscuring of these critical facts, that Whitlam had reached a political solution to the blocking of Supply in the Senate, with his decision to call a half-Senate election. Whitlam had told Kerr of this decision to call the half-Senate election 5 days earlier, the key documents had been exchanged, the election date set and the final wording of the call for the election agreed to – when Kerr dismissed Whitlam without warning. Malcolm Fraser, the Governor General’s appointed Prime Minister, was then defeated in a motion of no confidence in the House of Representatives which also called on the Governor-General to re-commission the Whitlam government. We have known since 2012 that at this point Kerr contacted his old friend and secret advisor Sir Anthony Mason who, in complete breach of the separation of powers and the fundamental tenet of parliamentary democracy, told Kerr to ignore the House of Representatives motion of no confidence as ‘irrelevant’. There is no doubt however that Whitlam should have been restored to office on the afternoon of 11 November 1975, as Governor Sir Dallas Brooks had done in Victoria in 1952 following a Supply crisis in the Upper House – dismissing the government, passing Supply and then re-commissioning the government with the confidence of the lower House. This was the precedent that should have been followed in 1975, as Whitlam fully anticipated and as Sir Richard Eggleston and others have also argued. As it was, Kerr allowed Malcolm Fraser to remain in office with no electoral or parliamentary authority, dependent only on the Governor-General’s personal determination of a government of his own choice.

Finally, we have the entirely unexpected historical revisionism of the current Liberal Prime Minister, Malcolm Turnbull. In a complete volte face for long established Liberal representations of the dismissal as a moment of national salvation, Turnbull marked the 40^th anniversary by proclaiming that Sir John Kerr was wrong to dismiss Whitlam without warning, and that Malcolm Fraser was wrong to have blocked Supply in order to achieve it. Turnbull’s frank and significant concession shows just how far the judgment of history of the dismissal has come in the intervening 40 years.

Nevertheless, some notable gaps remain: firstly, the ‘Palace letters’ between Kerr and the Queen, Prince Charles and Sir Martin Charteris are historically significant documents relating to the dismissal, their continuing embargo at the personal decision of the Queen is a denial of our access to our own history and they ought now to be released. The National Archives of Australia has categorised these letters rather perversely as ‘personal’ rather than official, thereby removing them from the usual 30 year (now 20 year) release requirements under the Archives Act and enabling either party – the Palace or Kerr – to set their own terms for release. This claim of their ‘personal’ status is absurd and not sustainable. The letters were written in Kerr’s capacity as Governor-General, they were sent from Government House at Yarralumla and Admiralty House, and they covered the immediate contemporary political events as related to the Palace by Kerr as Governor-General. We also know that Kerr’s letters did not in fact canvas personal matters but set out his view of the on-going political situation because he left extracts of his letters to the Queen among his papers, which I identified in 2012 as extracts from Kerr’s letters to the Queen, defying their apparent embargo.

If these are indeed ‘personal’ letters as the National Archives has advised, then they should also be released since Kerr had made it clear that he wanted and had actively sought the release of all these letters – to the Queen, Prince Charles and Sir Martin Charteris, and of Charteris’ letters to him. As I described in Gough Whitlam: His Time, Kerr contacted the Palace in early 1980 seeking the release of these letters, believing they would support his decision to dismiss Whitlam. The Queen’s then private secretary Sir Philip Moore was reportedly horrified at the suggestion and insistent on its rejection. The question is – why? Given that Kerr was not only happy but determined to release his own letters, whose privacy then is being protected here? Certainly not Kerr’s, yet it is in his name that his own apparently ‘personal’ letters to the Palace have been and remain embargoed.

Secondly there is one final detail of Sir Anthony Mason’s role, the extent of which had been hidden until 2012, that is yet to be revealed. Mason conceded three years ago that he had drafted a letter of dismissal for Kerr, and this letter should now also be released. Like the secret Palace letters, Mason’s letter is also a critical document in the still evolving history of the dismissal of the Whitlam government and, like the Palace letters, it too is part of our history we all have a right to know.

Professor Jenny Hocking is Research Professor and Australian Research Council DORA fellow, National Centre for Australian Studies, Monash University. Her most recent book ‘The Dismissal Dossier’ was published by Melbourne University Press.