Myths of the palace plot to sack Whitlam debunked

Myths of the palace plot to sack Whitlam debunked

The Dismissal
Published in the Australian Financial Review
16/7/20

Myths of the palace plot to sack Whitlam debunked
The release of the Kerr Palace letters this week, which promised to reveal evidence of interference from Buckingham Palace in the dismissal of Gough Whitlam, proved the very opposite, writes Anne Twomey.

Anne Twomey
Constitutional expert
Jul 16, 2020 – 12.53pm

When you don’t know the precedents, everything appears to be unprecedented. More surprising for me than anything in the letters between Sir John Kerr and Buckingham Palace was how a lack of familiarity with such material caused people to turn standard utterances into something extraordinary and conspiratorial.

It shows how we all see things differently through the prism of our own experience.

So let me share a view of these letters from someone who has spent decades analysing primary documents about exercises of reserve powers by vice-regal officers in Australia and other countries that share the same Queen.

To start at the more trivial end, a lot has been made of the fact that Kerr wrote many letters and that the Queen was said to be reading them with interest. It has even been said it was wrong for the governor-general to be communicating with the Queen "without (prime minister Gough) Whitlam’s knowledge or approval".

Whitlam, as a well-informed man, knew perfectly well that it is one of the duties of a governor-general to keep the Queen informed of political events in the country. Such correspondence did not require his approval. The frequency of such reporting depends on whether there are significant political events occurring. In the midst of a crisis, letters will be frequent and detailed. There was nothing unusual about the frequency of the letters during the tumultuous political period of 1975 or about their reporting of political issues.

Nor is there anything unusual about statements that the Queen is reading such reports with close interest. This is a standard line used in the vast majority of letters the Queen’s private secretary sends to governors-general across the Queen’s realms.

Sir Isaac Isaacs, the first Australian-born governor-general, used to send epic epistles to the King telling him about visits to every small town around Australia in mind-numbing detail. He also lectured him on the intricacies of constitutional law. I have my suspicions that King George V did not read these reports with "close interest", although he probably did read the one where Isaacs, a former Chief Justice of the High Court, explained why Sir Philip Game’s dismissal of Jack Lang was constitutionally correct.

I’m also reasonably confident the Queen would have read Kerr’s letters about the 1975 constitutional crisis, especially as there was a reasonable likelihood that she would be drawn into it one way or another. It would have been irresponsible of her not to pay attention to such a major crisis in one of her realms.

Some have argued that it was shocking and inappropriate that Kerr should even mention the idea of the dismissal of the government in letters to the Queen, or indeed any political matters. Again, it was part of his job to report what was happening politically in Australia, which included the existence of public discussion of the prospect of the governor-general dismissing the government.

That is why it was useful for Kerr to have included news clippings with his letters. Kerr is often portrayed as a megalomaniac who was secretly plotting the dismissal of a government while Australia and the Prime Minister slumbered on in blissful ignorance. The letters and press clippings show something different. It was the media that first raised the issue of dismissal, and Kerr duly reported this to the Queen.

The Canberra Times on July 4, 1975, published an editorial on the Khemlani loans affair. The scandal had erupted in Parliament, resulting in the dismissal of the deputy prime minister and calls for a judicial inquiry. The blockage of supply was considered likely. The editorial described the governor-general as the "ultimate guardian of the constitution" in a time of crisis. It noted that he normally acts on the advice of his ministers but that he could "for good and sufficient reasons, revoke the commissions of a Prime Minister or other ministers" and cause a general election to be held. Kerr, in his letter to the Queen, observed that he had ‘no intention of course of acting in the way suggested’, but let her know that this was what was being discussed in Australia.

It was not only the media but also Whitlam himself who raised the issue of his own dismissal. Kerr’s letter of September 20, 1975 stated that Whitlam told Kerr in Port Moresby that if supply was blocked and at the height of the crisis, while public servants and the defence forces were not being paid, Kerr terminated Whitlam’s commission as Prime Minister, then Fraser would not be able to get supply either because new legislation would probably be necessary. This shows that Whitlam was conscious of the fact not only that Kerr could dismiss Whitlam, but also that he might do it, and was warning him off by pointing to the financial consequences.

'Forced to sack him'
Attached to that letter were a number of news clippings, including one from The Australian Financial Review on September 15, 1975. It stated that Whitlam had said that if supply was blocked, he would not hold a general election. Fraser, in response, reportedly said that if Whitlam failed to call an election after rejection of the budget, "the Governor-General could be forced to sack him". The editorial said that Kerr undoubtedly had the power to do so, but then the country would be facing a greater crisis than just economic management.

Other articles, sourced to the "Prime Minister’s advisers", set out the following scenario: supply is blocked, Whitlam advises the governor-general that he will neither resign nor advise a dissolution, Kerr then asks Fraser if he can form a government, Fraser says he cannot because he does not have a majority in the House of Representatives, and then Kerr instructs Fraser to pass supply in the Senate. Peter Bowers in the Sydney Morning Herald added that "Mr Whitlam cannot see Mr Fraser defying the moral right of the Crown".

But when the same scenario was put to Professor Geoffrey Sawer at ANU, he pointed to the crucial flaw in it. He told The Australian that "Mr Fraser could form a government simply for the purpose of advising the Governor-General to dissolve the Lower House and call an election", which was indeed what happened two months later.

These letters and attachments show that Kerr was informing the Queen of developments in Australia that were publicly known and based upon the war-gaming of scenarios coming out of Whitlam’s office. They were not secret whispers about dismissal fantasies. Kerr did not say he was thinking about dismissing the government and ask what he should do. He provided factual reports about what was being discussed by the public in Australia. Whitlam was as aware of such matters as Kerr, and now the Queen. It is impossible to see how such communications could be characterised as inappropriate or conspiratorial.

Legal advice
Commentators have said Kerr sought and received legal advice from Martin Charteris, who was the Queen's private secretary. The letters do not bear this out. Kerr was a lawyer and the former chief justice of New South Wales. He was familiar with all the main works on the powers of the governor-general, including books by H. V. Evatt and the Canadian Eugene Forsey. He did not ask for any legal or constitutional advice from the Palace.

Charteris, in the letters, defers to Kerr’s greater legal and constitutional knowledge. He refers to his own lack of knowledge about the Australian constitution and "his untutored eye". He is not Kerr’s legal adviser. At most, he expresses an occasional view of the situation as he sees it. On the only occasion Kerr asked for advice, which was upon the impact on the monarchy rather than the law, Charteris replied quite properly, that Kerr must do what the constitution dictates. This is hardly legal advice. Any sensible person would have said the same.

One comment that has been misconstrued by commentators is the reference by Charteris to Forsey. Charteris noted that Forsey lays down a principle that "if supply is refused this always makes it constitutionally proper to grant a dissolution". This harks back to the convention that a prime minister who has been refused supply must secure a dissolution or resign. The governor-general has a reserve power to refuse a dissolution, which would then force the resignation of the prime minister. What Charteris is saying is that it would be proper in those circumstances for the governor-general to grant the dissolution to the prime minister.

It is not, as has been suggested, "the monarch providing not just comfort but actual encouragement to the governor-general in his sacking of the government". On the contrary, Charteris is encouraging Kerr to grant any requested dissolution rather than forcing a resignation.

The unfounded assumption
Underlying nearly all the commentary on the Palace letters is an assumption, which seems to derive from the prevalent conspiracy theories, that the Palace wanted Kerr to dismiss Whitlam and therefore encouraged him to do so, if not by direct words, then by hints and nudges.

But what is the basis for this assumption? For most it seems to be that the Palace is powerful, Whitlam was dismissed, and therefore the Palace must have wanted and caused his dismissal. I am unaware of any evidence to suggest a desire on the part of the Queen to dismiss Whitlam. By all accounts, the Queen and Charteris got on well with Whitlam.

The only argument that has been given as to why the Queen would have wanted to dismiss Whitlam is implausible. It runs that if Whitlam advised a half-Senate election, some premiers might advise their governors not to issue the writs, and Whitlam might then advise the Queen to instruct the governors to issue the writs.

This would have drawn the Queen into the crisis. The High Court had previously held that state governors, in issuing the half-Senate writs, act in their state capacity and cannot be instructed by the Commonwealth. Before 1986, the Queen was required to act in relation to state matters on the advice of British ministers, not Australian ministers. She might, therefore, have faced conflicting advice.

While both the British government and the Queen wanted to avoid such a conflict, all the Queen needed to do was have her private secretary write a letter stating that the constitution conferred the power to issue the writs on state governors, not the Queen, and she had no power to instruct them or intervene.

Whitlam would have been annoyed and there would have been a degree of public fuss, but nothing like the amount of damage caused to a constitutional monarchy by dismissing an elected government.

It has often been observed that in a race, one should bet on self-interest. For all her reign, the Queen has protected her self-interest by not becoming involved in political or constitutional controversies. Whenever a constitutional crisis has arisen, including a "race to the Palace", the Queen has employed the tactic of "masterly inactivity" in the hope that the crisis will be resolved domestically so that she will not have to become involved. Normally that tactic is successful.

For example, when the prime minister of Tuvalu advised the Queen to dismiss the governor-general, and the governor-general dismissed the prime minister, the Queen stayed her hand, and the matter was resolved locally, in the courts and Parliament of Tuvalu.

When asked to dismiss a governor-general, the Queen insists on formal written advice, sends queries, requests legal opinions and asks for the governor-general’s response. The delay usually means that there is a resignation or some other local resolution of the conflict before she needs to act.

When Charteris explained this to Kerr, it was not a plan hatched to protect Kerr, as some have suggested. It is standard Palace operating practice, and it gave Kerr no comfort, as he considered that such a delay would have left him impotent to act.

Exercising reserve powers
If you read the correspondence without the preconception that the Queen wanted Whitlam dismissed, it seems aimed at discouraging Kerr from acting. The letters praise Kerr for not acting precipitately. They express hope throughout that the "political problems will not come to the boil". They stress the importance of acting in a constitutional manner.

Charteris states in a November 4, 1975 letter that the reserve powers exist. Many commentators have criticised this. Having written a 900-page book about the exercise of the reserve powers, I can confidently assert they do exist and that Charteris was merely stating a position that the Palace has always taken.

But the commentators in pointing to this passage also miss its point. Charteris is saying the reserve powers operate by influencing and moderating the behaviour of politicians so that the powers never formally need to be used. He says "this is the value of them".

To formally exercise them "is a heavy responsibility and it is only at the very end when there is demonstrably no other course that they should be used". This is not encouragement to dismiss a government.

In 1977, Charteris discussed the dismissal with Sir Paul Hasluck, who had been governor-general during the first part of Whitlam’s prime ministership. Hasluck recorded that they both agreed that "in a constitutional monarchy the wisdom is to avoid confrontation and never let an issue come to a crisis in the political sense".

They concluded that if Kerr had succeeded in gaining Whitlam’s confidence and respect earlier on, "there would have never been a crisis". In short, both Charteris and Hasluck considered Kerr’s exercise of the reserve powers as a mark of failure, not a desired outcome.

Constitutional monarchs prefer to avoid crises, as they raise questions about the legitimacy of the role of an unelected hereditary office. The Queen would have been well aware that the dismissal of a Labor government would provide strong encouragement to a republican movement. It was not in her interests for this to occur, and there is no evidence to show that the Queen or Charteris wanted or encouraged Kerr to dismiss Whitlam.

Should the Queen have alerted Whitlam?
One of the more fanciful arguments made by critics of the Palace letters is that the Queen should have breached the confidence of her governor-general and told the prime minister that he was at risk of dismissal. Had the Queen done so, she would have both breached her political neutrality and interfered in Australian domestic affairs, setting up the end of the monarchy in Australia.

Any such intervention would have been seen as encouragement of Whitlam to advise the Queen to dismiss the governor-general. Had Whitlam done so, he would have faced a destructive political backlash for seeking to remove the umpire during a time of crisis. Moreover, the Coalition would have seen it as partisan interference by the Queen to support a failing Labor government. The Queen’s reputation would have been tarnished internationally, and she would have faced strong calls for a republic not only in Australia but also in her other realms.

Independence and interference
It is a curious thing that those who argue that the Queen should have interfered in Australian political affairs by warning Whitlam are precisely the same people who rail against interference by the Queen in Australian matters. Such inconsistency in views about independence has a long history.

In 1926, the Canadian governor-general Lord Byng refused a dissolution to then-prime minister Mackenzie King. King insisted that Byng should first get instructions from the British secretary of state for the Dominions. Byng later wrote to King George V that he "flatly refused" to do so, stating that the people would object to British interference in their politics and the idea was to be "strongly deprecated". Byng concluded, in words that could just as well have been written by Kerr 50 years later:

"There seemed to be one person, and one alone, who was responsible for the decision and that was myself. I should feel that the relationship of the Dominion to the Old Country would be liable to be seriously jeopardised by involving the Home Government; whereas the incompetent or unwise action of a Governor-General can only involve himself."

When an election was later called, King campaigned on the issue of "British interference". The British secretary of state wrote to Byng in a private letter complaining of the hypocrisy of King in first demanding that the governor-general act on the instructions of the British, and when denied such an intervention, then campaigning at the election about British interference in Canadian affairs.

Not proper for the Queen to intervene
The most interesting revelation in the Palace letters was that after he was dismissed, Whitlam rang the Queen’s private secretary at 4.15am in London. He explained to a startled Charteris that he had been dismissed, that supply had since been passed, that the House of Representatives had voted confidence in him and concluded that "he should be re-commissioned as Prime Minister so that he could choose his own time to call an election".

Whitlam had the good sense not to ask for the Queen to override her governor-general, as she had no power to do so. Only the governor-general could reinstate Whitlam, so Whitlam wanted Charteris to speak to the governor-general and presumably put pressure on him.

The Labor Speaker of the House of Representatives, Gordon Scholes, also petitioned the Queen to "act in order to restore Mr Whitlam to office as Prime Minister". But as Charteris replied, the constitutional power to appoint and dismiss a prime minister is held exclusively by the governor-general and cannot be exercised by the Queen.

Nor would it be proper for the Queen to intervene. It was a matter for Australians to resolve within Australia. It seems the British had the greater respect for Australian independence.

Viewed through the prism of my experience, the Palace letters do not reveal a royal conspiracy to depose the Whitlam government. But they do reveal an ongoing colonial mindset among those unprepared to accept Australian responsibility for Australian political events. If independence is a state of mind, we are not quite there yet.

Anne Twomey is a professor of constitutional law at the University of Sydney and author of The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems.

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