THE HIGH COURT’S DECISION ON THE RELEASE OF LETTERS BETWEEN GOVERNOR-GENERAL SIR JOHN KERR AND BUCKINGHAM PALACE

Anne Twomey is Professor of Constitutional Law and Director, Constitutional Reform Unit at the University of Sydney. She worked for the High Court of Australia as a Senior Research Officer, the Commonwealth Parliamentary Research Service as a researcher in the Law and Government Group, the Commonwealth Senate as Secretary to the Senate Legal and Constitutional Committee, and The Cabinet Office of NSW as Policy Manager of the Legal Branch. Her most recent books have been The Veiled Sceptre – Reserve Powers of Heads of State in the Commonwealth System and (as editor) The Constitution and Government of Australia, 1788-1919 by William Pitt Cobbett. On Wednesday 3 June 2020, Anne Twomey was filmed for a Sydney Institute Youtube event followed by a discussion with Gerard Henderson on the topic of the High Court decision, on 29 May 2020, regarding the release of the Palace Papers from 1975.

THE HIGH COURT’S DECISION ON THE RELEASE OF LETTERS BETWEEN GOVERNOR-GENERAL SIR JOHN KERR AND BUCKINGHAM PALACE

ANNE TWOMEY

When I commenced my career in constitutional law, I was determined not to focus on the dismissal of the Whitlam Government by the Governor-General, Sir John Kerr, in 1975. This was for two reasons. First, the tumultuous events of 1975 had already been picked over by academics and journalists. There appeared to be little else that could be profitably discussed about them. Second, it was an over-crowded field. Everyone seemed to think themselves experts on the subject.

There were so many other unexplored fields needing attention, that I happily set off to research them instead.  They included State constitutional law and the often equally tumultuous events involving State Governors and the fall, or even dismissal, of State Governments, frequently in the course of a crisis over securing supply.[1] I also extended my research into exercises of reserve powers in other countries that rely on the same constitutional principles and conventions as Australia, including those in the South Pacific and the Caribbean.[2]

This gave me a significant advantage when I finally did come to examine the 1975 dismissal crisis. It meant that I saw it in its historical and constitutional context, in contrast to others who have focused their scholarship on the one discrete period of the Whitlam Government.  Everything appears to be “unprecedented” to those who do not know the precedents and “extraordinary” to those who do not understand the ordinary practice of governments and high office-holders.

For example, there are many claims that Sir John Kerr’s consultation of the Chief Justice of the High Court, Sir Garfield Barwick, was unprecedented and extraordinary.  But, in fact, the reverse was true. While it might have been politically unwise, given Barwick’s political background, it was certainly the common practice when constitutional controversies arose.  I have elsewhere documented a large number of cases where such consultation occurred.[3]  It was so common that in 1951, Labor politicians argued that the Governor-General should consult with the Chief Justice about whether the conditions for a double dissolution had been met.  Indeed, failure to consult the Chief Justice could have been seen as suspicious, indicating some doubt about the constitutional validity of the action.  While such consultation is no longer considered appropriate, given the development of the doctrine of the separation of powers and the more liberal rules of justiciability of legal challenges to executive action, in 1975 such action was common,[4] even though this was not well-known to the commentators of the day.

I came to the 1975 crisis by a side-wind. I was in the United Kingdom in 2005, sitting in the records office of the UK Cabinet Office above Admiralty Arch, researching the relationship between the Australian States and the United Kingdom. I had obtained the documents through a FOI application, and amongst the many files I found the UK Government’s files concerning the 1975 crisis. Its involvement arose in two limited contexts. First, it was still responsible (until 1986) for advising the Queen in her capacity as Queen of the United Kingdom about Australian State matters such as the appointment and removal of State Governors. This became relevant when the Queensland Governor, Sir Colin Hannah, made a comment, in an after-dinner speech in October 1975, about the “fumbling ineptitude” of the Whitlam Government.  There were calls from the Labor Opposition in Queensland for Hannah’s dismissal, and Whitlam advised the Queen to remove Hannah’s dormant commission to act as Administrator of the Commonwealth Government when the Governor-General was absent. The UK files on the controversy show that the Governor-General, Sir John Kerr, became involved in the debate about whether a vice-regal officer should be dismissed for actions that might be seen to be political.  Whitlam’s action in immediately advising the Queen to remove Hannah’s dormant commission clearly rattled Kerr.

The second concern of the British Government was to keep the Queen out of the controversy.  When a British official visited Australia, he was told by the NSW Governor, Sir Roden Cutler, that if Whitlam advised a half-Senate election, it was the State Governors, who under the Constitution, issue the writ for it.  Cutler said that if his Premier advised him not to issue the writ (as had been speculated in the press), then he would comply with this advice and not issue it.  If Whitlam then advised the Queen to instruct the State Governors to issue the writs, then Cutler warned he would resign.  Cutler added that he was sure that Kerr knew that neither the Queen nor the British Government wanted to get involved in this controversy and was ‘reasonably confident’ that the Governor-General would not involve the Queen by asking her to instruct the State Governors.

This was the November 1975 crisis that the British Government thought it was facing – the Queen being advised by the Commonwealth Prime Minister, as Queen of Australia, to instruct State Governors (which was under her capacity as Queen of the United Kingdom) to issue the writs. But British officials, taking into account Cutler’s comments, concluded that Kerr, as a “distinguished lawyer”, would understand the constitutional impropriety of such a request and seek to dissuade Whitlam from “drawing Her Majesty into a political controversy – the very offence for which he has criticised Sir Colin Hannah”.  They considered that “Sir John Kerr could be relied upon to resist any precipitant action that might involve either HM the Queen or HMG [Her Majesty’s Government in the UK] in what is essentially an Australian domestic dispute”.

There was a discussion about whether British officials should contact Kerr with a view to “blocking off” any attempt to involve the Queen in an Australian constitutional crisis.  They concluded that any such advice would probably offend Kerr and lead Whitlam to criticize British intervention.  So they decided to do nothing instead.

I wrote about this in my 2006 book The Chameleon Crown[5] and in an article in The Australian on the 30th anniversary of the dismissal of the Whitlam Government.[6]  Many years later, in 2017, the same documents were viewed by a different researcher.  There were breathless media reports of “volcanic” discoveries of British interference in the Whitlam dismissal arising from this great discovery of ‘previously unseen’ papers.  Journalists clearly have short memories.  These documents allegedly revealed a conspiracy, which turned on the words that “Sir John Kerr could be relied upon”.  From this, it was assumed that he was acting under British instructions to dismiss the Whitlam Government, when the documents in fact showed that reliance was placed upon Kerr to keep the British Government and the Queen out of an Australian domestic dispute.

To me, the documents suggested that the British had no involvement in the dismissal of the Whitlam Government and that their only interest was to stay as far out of the controversy as they could. It is always possible, however, that there are other files which reveal a different story. But a reasonable interpretation of what we have seen already suggests no active interference by the British Government.

In 2012, I raised with the Secretary of the Commonwealth Attorney-General’s Department the absurdity of the classification of the letters between Sir John Kerr and the Palace as “private” correspondence.  He was sympathetic to my point of view but said that political direction would be needed for there to be a change in the classification of these documents.  Accordingly, on 23 October 2012, I wrote to the then Attorney-General, Nicola Roxon, seeking her intervention.

In my letter, I noted that the National Archives treated Kerr’s correspondence with the Palace as private correspondence and imposed a limit on access to these letters of 50 years after the expiry of Kerr’s term of office, and only then with the permission of both the Queen’s Private Secretary and the Official Secretary of the Governor-General.  I argued that this was wrong as a matter of law.  I pointed out that these letters were written and received by Sir John Kerr as an officer of the Commonwealth in the performance of his official duties. They included matters concerning the exercise of his official powers and were in the possession of a Commonwealth agency. They formed a vital part of Australia’s constitutional and political history.  They were, in my view, quite clearly Commonwealth records under the Archives Act, and now that they were in the open access period, I had a legal right to gain access to them.

I also noted that if the excuse was given that “it cannot be done because it has never been done before”, this was not the case. I pointed out that W J Hudson’s biography of Lord Casey, quotes from or refers to correspondence between the Governor-General and the Palace on 16 January 1966, 4 April 1966, 12 November 1966, 16 January 1967, 27 July 1967, 8 January 1968, 15 May 1968, 14 October 1968 and 21 January 1969. I concluded that the release of such correspondence “can be done and has been done with respect to letters not much older than those written in 1975.  It just requires the political will to do it”.  I asked that the files be opened to public access.

Unfortunately, I doubt that Nicola Roxon ever saw the letter. It got sucked into the bureaucracy, passed on to Simon Crean who was then Minister for the Arts, and then to his successor, Tony Burke, who probably paid no more than three seconds of attention to it. It was, effectively, answered by the bureaucracy in the Archives, with the same old story, not addressing any of the arguments I had made.

But the letter did have a Kafkaesque aspect. It declared that the Kerr-Palace letters were the personal and private records of the Governor-General, and explained:  “Personal and private records of a Governor-General include records established by the Governor-General in his or her official capacity that are intended to be the personal and private property of the Governor-General rather than the property of the ‘official establishment of the Governor-General’.”

Curiously, the letter was also inaccurate as to the conditions on the release of the documents. It said that the Archives must comply with the conditions of deposit of the documents, which were not to be released until 50 years after Kerr had ceased to be Governor-General and then only after “consultation” with the Sovereign’s Private Secretary and the Governor-General’s Official Secretary  But that is not quite right.

The original condition, imposed by Kerr at the behest of the Palace, was that access not be given for 60 years after he had ceased to be Governor-General, and only then upon “consultation” with the Sovereign’s Private Secretary and Governor-General’s Official Secretary.

In July 1991, the Queen instructed that the secrecy period should be changed to 50 years, and the other condition changed from “consultation” to require the “approval” of the Sovereign’s Private Secretary (i.e. an absolute veto).  But Kerr had died in March 1991 and didn’t approve this change. The Archives, instead of complying with the instructions of the depositor, was instead deferring to an instruction by the Queen, who was not alleged to be the owner of the letters.  Ironically, this suggested that the documents were really being treated as official, not the private property of the former Governor-General.

The new conditions were applied to all other documents held by the NAA concerning correspondence between the Queen and a Governor-General, including those by Lord Casey, Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen.

In the case of Lord Casey, the instrument of deposit from Casey’s daughter, made on 2 June 1992 (after the Queen’s 1991 instructions) said that the documents should be released once they were 30 years old.  But it was unilaterally changed by the Archives to 50 years after Casey’s term as Governor-General ended, with any release requiring the approval of the Sovereign’s Private Secretary and the Official Secretary of the Governor-General.

If, as the Archives argued, these were the personal documents of Casey and later the beneficiary of his estate, his daughter, who deposited them with the Archives, then the documents should have been released by now.  Instead, the Archives treated them as documents of the Queen, and obeyed her command, even though she wasn’t the owner and had no legal right to control access.

The 50-year period for Lord Casey’s documents expired in May 2019. The Queen’s Private Secretary refused to approve access to them. He stated that no approval would be given until at least 5 years after the Queen’s death, and even then, only if the Private Secretary of the new Sovereign approved. There was no legal basis for this veto or exercise of control over Lord Casey’s documents.

The High Court’s judgment in Hocking v Director-General of the National Archives of Australia[7]

The High Court in the Hocking case held, by a majority, that the correspondence between the Governor-General and the Queen was not “private” but rather was a “Commonwealth record”. This was because the documents when created, received and deposited in the Archives were all in the custody and control of the “official establishment of the Governor-General”. The relevant documents were held in a safe in the Official Secretary’s office. They were copied by the Official Secretary, David Smith, and transferred to the Archives in his official capacity. The joint judgment of Kiefel CJ, Bell, Gageler and Keane JJ said:

The very actions of Mr Smith in making and fulfilling in his capacity as Official Secretary the arrangement by which the correspondence came to be deposited with the Australian Archives are sufficient to demonstrate that lawful power to control the physical custody of the correspondence then lay with Mr Smith in his official capacity as official Secretary. [116]

The nature and significance of the correspondence was such that it was only to be expected that the correspondence would be kept within the official establishment of the Governor-General as the functional unit of government responsible for keeping records created or obtained by the Governor-General in his or her official capacity.  With respect to the majority in the Full Court, we cannot see how the correspondence could appropriately be described, however “loosely” as “private or personal records of the Governor-General… [117]

That suggests that the nature and significance of other correspondence between the monarch and Australian Governors-General is such that it also falls within the category of “Commonwealth records” and is therefore subject to a legal right of access, in the open access period, subject to any exemptions.

What might be in the letters?

If we see the letters, what might be in them? It is unlikely that there would be any letters directly from the Queen. Her official correspondence is always through her Private Secretary. This is a form of protection for the Queen as the reader can never know how much of what is written in a letter by the Private Secretary is the Queen’s view and how much is that of the Private Secretary.

There are many examples of such correspondence that already exist on files in various archives – which shows that the argument concerning the necessity of strict confidentiality is over-blown. It was always known and anticipated that such correspondence would end up on government files and be eventually released under normal archiving rules. For example, there is a letter between Kerr and the Palace explaining that the Queensland Government was seeking a referral to the Privy Council for a legal opinion of questions concerning the status of the Queen as Queen of Queensland. There is also a reply from the Queen’s Private Secretary, Sir Martin Charteris saying that the letter had been laid before the Queen and Her Majesty is grateful to receive it and will take note of it. This is a standard type of reply.  This correspondence was on ordinary Commonwealth Government files released by the Archives before it got unduly secretive. There is a lot of such correspondence on Government files in the UK and Australia.

A random example from UK files, which I chose because it does say something interesting about the Queen’s views, is a letter from the Queen’s then Private Secretary, Michael Adeane, to the UK Prime Minister’s Private Secretary, regarding a proposed election. It declares that from the Queen’s point of view the Prime Minister only ‘asks’ for a dissolution, rather than advises one, because this remains a matter within the royal prerogative.  Prime Ministers have been required to re-write their letters seeking an election from time to time. Again, such correspondence was routinely on British Government files, and not expunged until 2010[8] when the UK Government also became paranoid and secretive in light of litigation over the ‘black spider’ letters from Prince Charles to UK Ministers.

Back to the Kerr correspondence where is a hand-written letter from Sir Martin Charteris, to Kerr, from December 1975, thanks him for his hospitality at dinner and for the opportunity to hear from Kerr’s own lips the inside story of 11 November 1975.

Another example is a letter from the Queen’s new Private Secretary, Philip Moore, thanking Kerr for a letter that has been passed on to the Queen and commenting on Fraser’s success in the 1977 election. What these letters show is that for the most part, the 211 letters between Kerr and the Palace will be pretty dull.

The one interesting one we have is from Kerr, after he had ceased to be Governor-General, to the Palace in 1978.  He had sent his book manuscript in advance to the Palace for comment and says in the letter that he did his best in the manuscript, “to omit any reference to the exchanges between Martin Charteris and myself”.  This suggests that maybe there is some material there which the Palace did not want revealed.

What do we know of Kerr’s correspondence with Charteris and the Queen about the dismissal?

We do know from Kerr’s own papers that he had raised with Prince Charles the prospect of his own dismissal if he were to exercise a reserve power, or about to do so.[9]  This query apparently got passed on to the Queen’s Private Secretary, Sir Martin Charteris, who told the Governor-General that there would be some delay, but the Queen would ultimately be obliged to act on the Prime Minister’s advice.  Delay would necessarily occur because the Queen does not act on such matters in response to a telephone call.[10]  Formal written advice was required, and would have to be sent to the UK by post or private messenger, meaning that there would necessarily be at least a 24 hour delay before any action could be taken.

We also know that the Governor-General was aware of how Whitlam responded to Sir Colin Hannah regarding his comment about the “fumbling ineptitude” of the Whitlam Government. Contrary to the advice of his own Department and the Attorney-General’s Department, Whitlam advised the Queen to withdraw Hannah’s dormant Commission to be Administrator of the Commonwealth. Whitlam wrote to the Queen with this advice on 19 October and the Queen acted on it on 24 October. This action had planted the issue of dismissal firmly in Kerr’s head.

Kerr also said in his book that he kept the Queen fully informed throughout the crisis, as it was his duty to do. This was standard practice. One can see equivalent letters from Sir Philip Game during the Lang dismissal crisis and Sir Dallas Brooks during the Victorian constitutional crises of the early 1950s.  Such letters usually explain the facts, set out the different arguments various people have made, dismiss some arguments, but express concern about others and the potential ramifications of different courses of action. They usually do not seek advice, because vice-regal officers know that they are responsible for making their own decisions. The replies normally express sympathy for the stress and pressure the vice-regal officer is under and seek to offer some solicitude and comfort, while leaving decisions to the vice-regal officer to make.

The suggestion that such communication between the Governor-General and the Queen “without Whitlam’s knowledge or approval” was somehow inappropriate or underhanded is misguided and ignorant.  Whitlam would have been well aware that it was part of the Governor-General’s role to communicate with the Queen to keep her informed of political events in Australia, especially when constitutional controversies arose.  Such correspondence was standard practice and there had never been any role for the Prime Minister in giving “approval” of it or overseeing its contents.

Kerr said in his book:

I did not tell the Queen in advance that I intended to exercise these powers on 11 November. I did not ask her approval. The decisions I took were without the Queen’s advance knowledge. The reason for this was that I believed, if dismissal action were to be taken, that it could be taken only by me and that it must be done on my sole responsibility.  My view was that to inform Her Majesty in advance of what I intended to do, and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers; and I must not take such a risk.

Was Kerr lying? It seems unlikely, given that he continued to express the wish that the letters be released. He seemed to think they would vindicate his position. But there is some hedging in the statement in his book. He did not tell the Queen that he intended to exercise these powers on 11 November.  But he probably told her he was thinking about his various options, one of which was dismissal of the government, and agonising about the various timing issues, including the effects on ordinary people if pensions and other support payments stopped and public servants were no longer paid, as well as the need to let the people decide in an election which needed to be held before the Christmas holidays.

What if the correspondence shows Kerr told the Queen he was thinking of dismissing Whitlam?

So, if the letters show that the Queen was at least told that this was one of many possibilities that might occur, is this scandalous?

No – it was something that almost everyone already knew. It was in the public domain.

Bob Ellicott, a former Solicitor-General, had issued a legal opinion on 16 October about the Governor-General’s power to dismiss the Prime Minister, asserting that in certain circumstances the Governor-General had a duty to exercise it. This was discussed in Parliament and in the press.

Even the Malaysian Prime Minister raised it with Whitlam and Kerr at a dinner later the same day. In front of Kerr, Whitlam said in a jocular manner that it would be a “question of whether I get to the Queen first for your recall or you get in first with my dismissal”.[11] The newspapers were full of arguments about whether or not the Governor-General would or should dismiss the Prime Minister. A flurry of legal opinions was produced on the issue.

The Governor-General asked Whitlam for legal advice on the issue of his powers to dismiss the Government. If anything, this should have tipped off Whitlam that the thought of dismissal had run through Kerr’s mind.

Plenty of people had also warned Whitlam that Kerr was likely to dismiss him. One was the then treasurer, Bill Hayden, who after seeing Kerr, told Whitlam that his copper’s instinct told him that Kerr was going to dismiss the Government. Whitlam replied that Kerr was too weak and that he wouldn’t dare. In the end, Whitlam’s lack of preparedness for what occurred was due to his flawed judgment of Kerr’s personality.

It has been suggested in some quarters that if the Queen was aware that Kerr was contemplating the dismissal of the Whitlam Government, she should have instructed him not to do so. The Queen, however, had no power to do so. The power to appoint and dismiss governments in Australia belongs solely to the Governor-General, not the Queen. It is a power conferred by the Constitution on the Governor-General, not the Queen. She cannot exercise the power and has no right to instruct anyone as to how to exercise it. To do so would have been to interfere in Australian domestic matters outside the scope of her powers and functions and would have created a political and constitutional furore.

As for the suggestion that the Queen was obliged to tell Kerr that he had to act upon the advice of his Prime Minister, this would have made no sense at all in the context of the exercise of a reserve power. Who could seriously contend that the Governor-General, in exercising the reserve power of dismissing a Prime Minister, can only do so if the Prime Minister advises in favour of his or her own dismissal?

Another fanciful suggestion is that the Queen would have been under an obligation to tell the Prime Minister that the Governor-General was contemplating his dismissal and that by failing to do so she abetted Kerr’s actions and was complicit in them.  If the Queen had breached the Governor-General’s confidence and told Whitlam that he faced the risk of dismissal, she would have been seen as acting in a politically partisan way, encouraging Whitlam to advise her to dismiss the Governor-General and favouring the Labor Government in the midst of a bitter political conflict.

In the end, both sides would have objected to her intervention. It would most likely have caused the destruction of the Whitlam Government, as there would have been massive public outrage if Whitlam had caused the dismissal of the Governor-General (seen as the constitutional “umpire”) in a time of conflict.[12] And it would have made the Queen appear to support Labor over the Coalition in a political dispute, causing her to be distrusted by the conservative side of politics.  It would almost certainly have resulted in a republic, which is presumably why people argue that the Queen should have acted this way.

But if you were the Queen, what would you do? The answer is that you would stay out of it. It was an Australian dispute in which an Australian person, Sir John Kerr, held the power to bring it to a head and let the Australian people decide in an election.  Would any sane monarch interfere in that, especially when she had no powers or constitutional role in relation to the dispute?  No. The only appropriate and sensible course was to stay quiet and watch from the sidelines.

Of course, if Kerr said I think it would be wrong to dismiss Whitlam, and if the Queen replied “I order you to sack that appalling man” – that would be a scandal. But the chances of that are probably lurking around zero.

It would be surprising if there were anything truly scandalous in the letters – but surprises sometimes happen.

What happens now with the documents?

Under the Archives Act, there is a legal obligation to release Commonwealth records that are in the open access period.  But this is subject to exemptions as set out in s33 of the Archives Act.

How long will it take to decide whether any exemptions apply? The National Archives is required to make a decision within 90 days. It usually does so with uncontentious documents, but contentious ones are sent off to relevant departments for advice and can take a long time to come back – years, and years.  For example, in October 2012 I requested that two files regarding the 1975 dismissal be opened.  One was described as “Sir John Kerr – Papers relating to the Governor-General and events of 1975” and one was described as “Buckingham Palace”.  After complaining to the Tune Review into the Archives in May 2019 that they still had not been opened, they were finally opened (one only in part) in July and August of 2019.  It had only taken seven years.

Other submissions made to the Tune Review pointed out that in 2018 there was still a backlog of 5,287 requests waiting from before 1 October 2013. The delays, partly due to utterly inadequate funding and staffing of the Archives and in part due to consultation with a public service that gives such issues zero priority, have caused great damage to Australian historical research. A person undertaking research for a PhD could complete two PhDs before getting access, if at all, to the relevant documents.  One person told me he had to give up his attempt at a PhD because he could not get the relevant material from the Archives in time. Post-graduate students now go overseas to do archival work, because the Archives can’t be relied upon to produce documents in time.

Many academics will tell you that they have completed and published the relevant book before they got the documents that were meant to inform it. That happened to me. I found really useful material in files released up to eight years after I had requested them and well after the book I had requested them for was completed and published.

What happened to the Tune Review into the Archives which raised many of these problems? Its report was presented to the Attorney-General in January 2020. It is now June and it has still not been released. This delay is both ironic and fitting, as it is stark evidence of the problems and the lack of priority given to archival history.

I would imagine, however, that in the case of the Kerr-Palace letters, the public and media pressure is likely to cause a more speedy response.  It would be hard to spin it out for another seven years.

Exemptions

The other problem is exemptions. A culture of secrecy pervades the public service.  Timid public servants, afraid of letting anything controversial out, claim exemptions on the most spurious grounds. This is done in public service departments that advise on release, and the Archives seems blindly to accept the advice without objection.  The consequence is that anything controversial remains locked up, even if the claimed exemption clearly does not apply.

For example, I was denied access to files from the 1950s to the 1970s concerning section 44 of the Constitution and the potential disqualification of Members of Parliament, on the absurd basis that release of the documents could undermine the Commonwealth’s current position in litigation. Clearly no legal opinion from Commonwealth lawyers in the 1950s could be regarded as relevant or binding on the Commonwealth’s position today, given that all current legal advice would have to take into account more recent jurisprudence on the subject. But all objections from me were met with the same absurd mantra.  The only way to take it further was to engage in litigation, which is costly, in time, money and the effects on one’s blood pressure.

What exemptions might be applied by the Archives to the Kerr-Palace correspondence? Not that I would want to give them any hints, but my guess is that the Archives will try to argue that material in the letters is exempt because its disclosure could reasonably be expected to cause damage to international relations.[13]  This was the argument that was used to prevent access under FOI to letters from the Prime Minister to the Queen, even though they were letters from the Prime Minister of Australia to the Queen of Australia (i.e. a domestic relationship, rather than an international one) and even though no correspondence from the Queen (or in practical terms, her private secretary) was involved.  Apparently, Australians can’t see what the Australian Prime Minister writes to the Australian head of state because some other country, such as Canada, might become concerned that Australia actually complies with its FOI legislation and believes in transparency with respect to letters written by its own Australian Prime Minister.  Seriously?

The UK Supreme Court did not seem to be worried that other countries would be upset when it ordered the release of correspondence by Prince Charles under its FOI laws.  There are far more serious matters in the world that could damage international relations than transparency in relation to communications between a country’s head of government and head of state.

 While this argument about damaging international relations was rightly rejected by the Information Commissioner,[14] it was upheld by the Administrative Appeals Tribunal[15] and may well be used by the Archives. In the FOI case, however, the correspondence concerned letters from 2013 to 2016. It would be much harder to maintain such an argument in relation to documents that were over 40 years old and which, were written in the knowledge that many would end up on government files and be released under the 30-year rule.

Conclusion

I hope we see the letters. It’s the last piece of the 1975 puzzle. Maybe the release of the Kerr-Palace documents will finally show that the dismissal of the Whitlam Government was an Australian event caused by Australians within Australia, without the need for wider conspiracy fantasies.

The Palace fought tooth and nail to prevent Prince Charles’s correspondence to UK ministers from becoming public. The UK Attorney-General said it would undermine public confidence in him to be King if it became public. Yet the British courts upheld the principles of transparency and responsible government and required the letters to be released under UK FOI laws. And what did the letters reveal? They revealed that Prince Charles expressed in his letters the same concerns he had been expressing publicly for years.[16] The Guardian had spent an inordinate amount of money on the litigation, and it turned out that the speculation about what might be in them was more fascinating and sold more newspapers, than seeing what was in them, which was a complete fizzer.

My guess is that the same will happen here. The frisson of expectation of scandal is probably more exciting while the letters are secret. Their release may well amount to a damp squib. Then again, one can always be surprised.

[1] See, eg, the many constitutional crises in Victoria, including the effective dismissal of governments achieved by the Governor ‘requiring’ the Premier’s resignation:  Anne Twomey, ‘The exercise of reserve powers in Victoria from 1912-1955’ (2014) 39 Australian Bar Review 198.

[2] Anne Twomey, The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018).

[3] Anne Twomey, ‘Legal Advice by Judges on the Exercise of Reserve Powers’, [2016] Public Law 285.

[4] For example, the former Official Secretary to a number of Governors-General, Sir Murray Tyrell, stated in an interview in October 1975 that the Governor-General had requested advice from the Chief Justice ‘many times in the past’ and that Tyrell had done so himself on behalf of the Governor-General on half a dozen occasions.

[5] Anne Twomey, The Chameleon Crown – The Queen and Her Australian Governors (Federation Press, 2006) 79-80.

[6] Anne Twomey, ‘Governing Oddities’, The Australian, 12 November 2005, p 27.

[7] [2020] HCA 19.

[8] Constitutional Reform and Governance Act 2010 (UK).

[9] Paul Kelly and Troy Bramston, The Dismissal – In the Queen’s Name (Viking, 2015), 123.

[10] Vernon Bogdanor, The Monarchy and the Constitution, (Oxford: 1995) 286; and Vernon Bogdanor and Geoffrey Marshall ‘Dismissing Governor-Generals’ Public Law (Summer, 1996) 205, 208.

[11] Sir John Kerr, Matters for Judgment, (Sydney: 1978) 258.

[12] Paul Kelly, November 1975 – The Inside Story of Australia’s Greatest Political Crisis (Allen & Unwin, 1995) 221.

[13] Archives Act 1983 (Cth), s 33(1)(a).  See also s 33(1)(d) regarding a breach of confidence.

[14] William Summers and Department of the Prime Minister and Cabinet (FOI) [2018] AICmr 9:  http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AICmr/2018/9.html?context=1;query=Summers;mask_path=au/cases/cth/AICmr.

[15] Secretary, Department of Prime Minister and Cabinet and Summers (FOI) [2019] AATA 5537.

[16] ‘Read the Prince Charles “black spider” memos in full’, The Guardian, 13 May 2015:  https://www.theguardian.com/uk-news/ng-interactive/2015/may/13/read-the-prince-charles-black-spider-memos-in-full.

THE RELEASE OF THE PALACE LETTERS – DISCUSSION – ANNE TWOMEY & GERARD HENDERSON

Gerard Henderson: So, thanks for a great talk. Towards the end as you recall, conspiracy theories which had been rife for half a century here and towards the end you posited the view that it was unlikely that, in your view, that we would learn much beyond what we already know. Which takes us back to Sir John Kerr. I knew him a bit in his retirement and we had lunches together and he was obsessed about the dismissal and he spoke about it continually. But what he said to me privately is very much what he wrote in his book, that his whole aim as he said to me was to keep the Palace out of it. He didn’t want to be accused. He was a real Queen’s man. He didn’t want to be accused of embarrassing the Queen by having the Queen involved. I think it’s fairly consistent with how you look at it from the outside that she would not want to have been involved.

Anne Twomey: I think that’s right. So yes. There are other things that Kerr has written, there’s actually another manuscript for a book that was never published. It’s a bit scrappy. It’s not really in a publishable form. But he does have a whole chapter there about it and he talks about how he really wanted those documents to be released.  The reason he did put the original conditions on the documents when they were deposited was he was under a great deal of pressure from the Palace to do so. And it was also particularly in the context of the book that he was writing which they knew was going to come out. There was a concern and you can see this actually from a note that Paul Hasluck took of a discussion with Sir Martin Charteris and this was in 1977. They were concerned that Kerr might use his correspondence with the Queen as a peg for selling his book and that was one of the reasons that they were quite insistent that there be limits placed on access to the correspondence.

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So, yes, my strong suspicion is that the letters won’t tell us much from the Palace side. They’ll tell us a lot more from the Sir John Kerr side in terms of what he was thinking at the time. And why that’s actually quite interesting and useful is it doesn’t have the spin of later on. If you’re sending a letter on 8 November or 4 November about what’s happened then, you’re not doing it in the hindsight of having actually dismissed a government and seen the public reaction. So, it’s not got that self-justification at that time. It’s showing genuinely what’s in your mind in terms of your concern at a particular time. So, I think all of that would be really interesting and useful from an historical point of view. My experience of reading Palace correspondence – and I’ve read a lot over time despite everybody’s attempts to keep it quiet – is that they do tend to be quite circumspect. Normally they’ll just say thank you so much for putting this before the Queen, she’s paying close attention, she’s very grateful for your input. Then the private secretary may make the odd comment personally but not on behalf of the Queen. But it’s highly unlikely that there’s anything in there from the Queen personally saying what he should or shouldn’t do. I just don’t think that’s likely to be there.

Gerard Henderson: Kerr showed me his correspondence or copies of correspondence to the Palace as he always called it. But not so much that I could actually read it. He showed it to me. It wasn’t close to him but not close enough to be able to read it.

Anne Twomey: He was teasing you with it.

Gerard Henderson: And he seemed very proud of it and he thought it was a good record. Now you mentioned Kerr’s need for vindication. I would look at it in another way. In a sense, he had a certain degree of insecurity. I think he had insecurity about his own decisions. But he also had insecurities about finance because he’d really partly taken the job as Governor-General (he mentioned this to me) because his first wife was sick and he thought as Governor-General he would get medical assistance in Canberra. He was very concerned about finance. And he left the job earlier than expected. As you know, he was concerned about his superannuation. So, the idea that he wanted to make money out of a book would be a valid idea and I think he did make money out of the book. He told me that he sold 50,000 copies half a century ago which is quite a lot of books. He made money. But there was probably a genuine concern that the correspondence with the Palace would increase sales of the book and that’s a realistic observation.

Going back to the point about vindication. At Kerr’s memorial service, Sir Anthony Mason spoke about John Kerr’s need for vindication and how Kerr would always talk to him about what happened in 1975, as he always talked to me about it. The group of contacts that he had was pretty small but they all reported the same kind of lunches, this kind of need for vindication. So, if you look at Kerr beforehand you think he is a very weak person. If you look at what happened on the day of the Dismissal, you think he is a very strong man. But Whitlam thought he was a weak man and always in need for vindication. Looking at how much you’ve read on all this, how do you see him?

Anne Twomey: Well the first thing that people need to remember, because these days he’s seen often as a toff in a top hat, is that he did come from working-class circumstances. His father was a boilermaker. He was regarded as a Labor person effectively, from his early days. He did struggle early on. And I think that stayed with him. So, no matter how well he did and how successful he was, I think there was always that Impostor syndrome. I think this is what they call it these days. That feeling that maybe you don’t quite belong and that you always have to prove yourself in a way that other people who were born to rule don’t have. I think that he did suffer from that.

One really interesting thing that someone once told me was told to me in confidence so I will not give you the specifics. It was a person who was a very junior public servant who answered the phone during the 1975 crisis to take a message for the person that he worked for. He was a young junior person, and it was Sir John Kerr on the phone. Sir John Kerr asked him, “Do you have a mortgage?” and the fellow said “Well yes, I do”. And Kerr said, “Well how are you going to cope when you no longer have a salary from the government when the money runs out?” I thought that was actually quite telling that Kerr was  genuinely concerned as to how people would deal with the instant poverty that would occur when suddenly government money was not coming, public servants weren’t being paid, people weren’t getting pensions or the like because the money had run out. It gives us a different perspective of Kerr, rather than him drinking champagne and wearing a top hat. He had come from a poor background and he was concerned about those things. That needs to be factored into it. To the extent that Whitlam saw him as weak, that was probably more a reflection of the fact that he was insecure in his position, that he never quite felt that he was accepted and he certainly didn’t come from the born to rule side.

But, critically, which Whitlam didn’t understand, is that this made him feel that he needed to stand up to bullies.  Whitlam effectively tried to bully him and Kerr reacted to that quite badly. If Whitlam had managed things a little bit better, 1975 would never have happened. Equally, if Kerr had managed the relationship better it wouldn’t have happened either. And you can also see that in the quite interesting notes of Sir Paul Hasluck. He, as an experienced politician, would have managed Whitlam a lot better I think in the circumstances.

Gerard Henderson: But, also, if the opposition leader Malcolm Fraser had acted differently. It seems to me you had a Governor-General, you had Malcolm Fraser who was insistent on blocking supply and the Prime Minister Gough Whitlam who was insistent on governing without supply and neither looked like they were going to move. And the last day to dismiss a government and get an election before Christmas was on 11 November. Someone had to resolve it.

Anne Twomey: So was Fraser, yes. This is true.

Gerard Henderson: Kerr once told me that he resented some statement that Fraser had made which implied he had to do something. He didn’t like that. He didn’t like being told what he should do. Any rate, the decision happened. Although you point out how many people warned Whitlam but the newspapers at the time reported that Whitlam was not only taken completely by surprise but didn’t tell his colleagues in the Senate.

Anne Twomey: Indeed. It was just one of the most extraordinary things about the entire day. What I find very strange and quite inexplicable about it is that the only way all of that could have worked out in a satisfactory way for Sir John Kerr was if supply was passed by the Senate. Because if supply wasn’t passed and the country had to go to an election without supply having been passed, he would have been responsible for causing the very ill that he was trying to avoid. If supply hadn’t been passed, ultimately Kerr probably would have had to have reappointed Whitlam and resigned his office. So it was an enormous gamble on Kerr’s part that supply would be passed. If Whitlam had had at least had his wits about him, he would have told his lot in the Senate to defer the vote on it or not vote for supply. That would have killed off Kerr’s ability to do what he did. So the risks were enormous.

Gerard Henderson: So for those who, unlike me, were not around in 1975, just by way of background, you’ve got a situation where the Labor senators passed supply without realising that they’re no longer in government.

Anne Twomey: Indeed.

Gerard Henderson: And if that hadn’t happened, what you’re saying then is you think Fraser would have had to have resigned his caretaker commission to be Prime Minister.

Anne Twomey: Because he wasn’t satisfying it. The condition of his commission was that he achieve supply. He hadn’t achieved that. I don’t think Kerr would have felt in a position to be able to dissolve Parliament without supply having been passed because he did make it an express condition of the commission. That would have meant Whitlam would have had to have been reappointed because remember the lower house did pass a resolution of no confidence in Fraser and of confidence in Whitlam. Whitlam would have had to have been reappointed as Prime Minister and Kerr would have had to resign because he would have been then dismissed otherwise. It would have been a complete and utter fiasco but for the fact that supply was passed. And it was so easy for Whitlam to ensure that that didn’t happen. It’s bizarre.

Gerard Henderson: So, he was sitting in the Lodge having a steak and talking to some of his advisors but none of them were in the Senate.

Anne Twomey: He didn’t tell anyone in the Senate. Once, when I gave a speech about this in Parliament House in Canberra, a fellow came up and said that he was one of the clerks at the table on the day in the Senate, an assistant clerk or something or other. He said he knew that the Whitlam Government had been dismissed but clearly the senators didn’t, and he sent a note to the chief clerk while the bill was about to come on about passing supply. He said well, you know, clearly they don’t know should we tell them? Apparently, the clerk just screwed up the piece of paper and dropped it in the bin. Which is a spectacular story. I can’t say that it was true but that’s what I was told. So, the number of coincidences which ensured that Labor didn’t know that it had lost government and weren’t able to take the practical steps it could have taken to foil what had occurred were quite extraordinary.

Gerard Henderson: You’re dealing with some senior people, Labor people, in the Senate like Jim McClelland, who had been a friend of Kerr and obviously had a falling out with him around this time. And Ken Wreidt. There were many senior Labor figures and none of them were told. So that would have been a real constitutional crisis, which as it turned out never happened. So you’ve gone from the conspiracy theory – that somehow the Queen’s involved in the Dismissal, that’s the current one – to like you I suspect …

Anne Twomey: People seem to have given up on the CIA conspiracy.

Gerard Henderson: I was going to come back to the CIA.

Anne Twomey: That was a big one for a while.

Gerard Henderson: Well it started off in the CIA in the late 1970s into the early 1980s and then it went quiet for a while and then we ended up with the Palace. So there have been a lot of conspiracy theories. I have the view that Kerr actually used, and I think it’s your view too, these papers to draft his book without being able to quote them directly.

Anne Twomey: Correct.

Gerard Henderson: Because he’d gone overseas for some of this time, he didn’t have a lot of material around him and that’s what he had and I think it will be as dull as that.

Anne Twomey: We could all be surprised. It would be quite entertaining to be surprised but I’d still be surprised to be surprised.

Gerard Henderson: One of our members have asked how the letters were sent. Were they sent by mail? Were they sent by diplomatic bag? Do we know how they went?

Anne Twomey: Probably. I’m not quite sure whether they have an official sort of version of a diplomatic bag for …

Gerard Henderson: I would think so.

Anne Twomey: I think they probably still do.
Gerard Henderson: In those days people flew with the bags, they put them in bags and they got on an aircraft and they’d deliver them to London or to wherever else they were due to go. Now another question has come in and you’ve raised this in your talk. After we’ve got this High Court decision will it apply to all Governors General and state Governors …

Anne Twomey: Well we hope so.

Gerard Henderson: You would assume.

Anne Twomey: Well I assume. We’ll wait and see what the archives say. There will be slight differences. One of the things that the High Court focused on here was that it was David Smith in his official capacity as the official secretary to the Governor General who actually made the submission to the Archives. In the case of other Governors Generals that’s not been the case. It’s usually been that they took the documents themselves and it’s usually a relative, after they died who, a daughter or whatever, who will then submit the documents to the Archives. Does that make a difference? Probably not because the following paragraph then goes on to talk about the nature of the letters and their significance and the capacity in which they were done. So, my assumption is that it should apply to the other Governors-General as well but there is a distinction that could be made so we can’t be absolutely certain.

Gerard Henderson: Now there’s been some criticism by some left wing and not necessarily well-informed commentators like Peter Fitzsimmons that somehow this is a huge error that National Archives of Australia are denying Professor Hocking access to these documents for over ten years. But you’ve been denied access to some documents for longer than that. And in fairness to the National Archives of Australia, they made the decision they thought was correct. They were supported by the first judge of the Federal Court and two out of three judges in the Federal Court of Appeal.

Anne Twomey: Which I have to say does surprise me. Because I thought it was a lay down misere that these were official documents in Commonwealth records. I’ve been arguing this for years. I was really surprised. When I say that you can be surprised, I was surprised by the various judgments of the lower courts that said no they weren’t. I didn’t think their reasoning was convincing at all. So, I was quite relieved when the High Court came out the other way because I thought that was consistent with what I believe. But if your question is could the Archives have legitimately taken the view that they could not be released, well obviously, they could, given that other judges have said so and they felt obliged to comply with the conditions of depositors. I don’t think they were acting in bad faith, although I do still think that was quite odd that they changed all the rules on the basis of the Queen telling them what to do. I still can’t see what basis she had to do that. It seemed to be just deference rather than any legal basis. So yes. But, anyway, now that there’s clarity about it, that should change it.

There are also other files. I’ve been looking through all the various things I’ve been refused over time in relation to this. There’s stuff by Prince Charles in these letters as well. So that will be another question as to whether the same rules now apply to the Prince Charles’ letters in relation to the dismissal as opposed to the Queen’s. Does it make a difference that Prince Charles doesn’t have a constitutional relationship to Australia because he’s not the Queen or not? Don’t know. So that’s still an outstanding issue as well.

Gerard Henderson: So what reasons did the High Court give for overturning the 2-1 decision in the Federal Court? Do you regard their decision as critical? Did they avoid the issue? They’ve come to a different conclusion but what did they say about the other judgments?

Anne Twomey: Yes, well that’s the curious thing. They don’t really address the other judgments. Basically, the High Court took a different approach in relation to the statutory interpretation. They took a different approach in terms of the meaning of the term “Commonwealth records”. So, Commonwealth records meant it had to be the property of the Commonwealth and so in their approach to property they interpret it as meaning something like the concentration of power in relation to the documents and holding the documents. So, it became a lot more critical who actually held and had the right to hold the documents. And they also distinguished that from ownership. So it could well be that the Governor-General still owns the documents but because they were under the control of the official establishment of the Governor-General, then that was enough to make them Commonwealth records at the same time as being owned by someone else.

So for anyone out there who wants to read the judgment and says “Oh this could be really interesting”. Sorry, not really. It’s really a judgment about property and the meaning of property in the context of this statute. It’s very dull. It says virtually nothing about what the Federal Court decided and then the Federal Court decision did spend a lot more time discussing the Queen and the Governor-General and constitutional conventions and all those sorts of things. The joint judgement says we don’t need to decide at all whether there was a constitutional convention about secrecy. Justice Edelman says well actually no I don’t think there was enough evidence for that kind of a convention to stack up.

Gerard Henderson: He’s the one dissenter?

Anne Twomey: Ah no, he was the last judgement in it. It’s Justice Nettle who was the one who dissented. Justice Nettle was the only one who dissented and he took a view similar to the view in the Federal Court saying that these things are obviously always meant to be confidential and private and they were never official documents and that’s the end of it.  Obviously people have different perspectives on this thing but at least now we’ve got a little bit of clarity.

Gerard Henderson: So, two final questions. You made the point in your speech that Kerr wanted these documents released. I think he was proud of these documents and if they are released in a sense that will vindicate him to some extent.

Anne Twomey: Well it might. Presuming they say what he at least said they said, then yes. Will people still be finding conspiracies under barrels etc when they look at them? Probably yes, because there is a vested interest in doing so. In the long term when people look at them, like the Prince Charles letters, they will say well this is what Prince Charles has said in umpteen speeches. Here’s what he said in his letters to the Minister. They’re effectively the same, you know. Where’s the controversy? There’s probably going to be something similar to that. Here’s what Kerr said in his book, this is what his reasons were, here are the contemporary letters that he sent to the Queen at the time telling his reasoning, there’s actually a fair degree of consistency between them. That’s my guess.

Gerard Henderson: And it’s only a guess that you say. We’ll wait with interest. So finally, where are you going to be when they’re released? I mean, how do you expect these documents will be released and if they’re available to others, where will you be? Will you be interested?

Anne Twomey: I’ll certainly be interested.

Gerard Henderson: Will you be standing outside the door or on your computer waiting for them?

Anne Twomey: I’ll certainly be on my computer waiting for them if they release them electronically and they may well do. We need to remember it’s not Jenny Hocking who’s the only person who’s ever asked for these letters. Many of us have as well and put in applications for them in the past and been refused. So, it’s not just Jenny. It’ll be me and a number of other people who are interested in it. The media as well will have a high degree of interest in it once they are released and if they put them online so that everybody has access.

Gerard Henderson: Which would be a fair way to do it.

Anne Twomey: I think so. Given that, you know, a lot of people over time have asked for them as well and it is pretty common in terms of what they normally do in relation to making documents open. It would be unfortunate if they made us all troop off to the Archives to look at them because given the pandemic and the like it’s probably not a great idea to have the same documents going through umpteen hands and having queues of people out the building wanting look at them. Because as a matter of practicality, that’s not really a good idea in terms of how to handle it. So they probably do need them to be electronic.

Gerard Henderson: Okay well thanks for a great talk and discussion today and we look forward to the release of the documents. And you’ve had a fair degree of involvement over a decade or more and we’ll see what turns up. But for today, thank you very much.

Anne Twomey: Thank you Gerard.