Almost 45 years after the dismissal of the Whitlam government, with most of the main players except for Queen Elizabeth now deceased, we still do not know the full story. The puzzle remains incomplete. That may change now that the High Court, by a 6-1 majority, has acceded to the request by Professor Jenny Hocking that the remaining correspondence between the governor-general at the time, Sir John Kerr, and Buckingham Palace should be released for public view.
This correspondence, more than 200 letters, is held by the National Archives of Australia (NAA), which has so far fought against releasing them on the grounds that they are personal and private, not official documents. These were the terms under which they were first lodged with the NAA in 1978 by Sir David Smith, secretary to the governor-general. The papers were to remain closed until 2027, and even then they could only be released with the approval of both the Governor-General's official secretary and the Queen's private secretary. As Hocking has said, this amounted to an indefinite Queen's embargo.
The official channels of Australian democracy move slowly and require enormous resilience, money and determination on the part of anyone taking up the fight. For a decade, beginning with requests to the NAA and a FOI request to the Office of the Governor-General, Hocking has fought to see the correspondence. Eventually, in December 2016, she lodged an action against the NAA in the Federal Court. She was unsuccessful both with a single judge then the full court. She must have been tempted to stop there, but thankfully, with the support of pro bono legal advice, she took her case to the High Court.
This victory has many implications, but given that for most of the electorate 1975 is ancient history (both the present Prime Minister and Opposition Leader were then young children) it may attract less attention than it should. Hocking herself will study the papers and will retell the story of 1975 as new evidence makes necessary. She is confident that "history will be revised in that light". Already her access to other correspondence between Kerr and Buckingham Palace has shown greater involvement by the Palace than was first thought.
The British Crown was interfering in the 1975 dispute in ways that should offend anyone who wants Australia to be a fully independent nation.
The case also has implications for the culture of secrecy in Australian politics. It adds to current cases such the Bernard Collaery/Timor-Leste trial, the AFP invasions of the homes and offices of journalists, and the Witness J experience. Australia is not an inherently open society, but one in which the first inclination is always to privilege government privacy over transparency. The NAA says its default position is pro-disclosure, but that position is hedged around by many caveats, including the wishes of secrecy-oriented departments and agencies.
But at its heart, the issue here is national independence. Hocking describes the whole situation as "relics of colonialism" and "the lingering imperial power that comes from an incomplete severance of colonial ties". The actions of the Queen and the governor-general should be viewed in this light. Peter Fitzsimons, chairman of the Australian Republican Movement, describes the secrecy surrounding these papers as they bear on the dismissal of an elected government as "patently absurd", yet the Australian Monarchist League now fails to support their release.
The 1975 dismissal has been discussed within several frameworks. Constitutional lawyers have argued the constitutional rights of Kerr dismissing Whitlam. Others have queried the legitimacy of the role of the former chief justice and other High Court judges in advising Kerr. Political commentators have emphasised it was a Labor prime minister dismissed for party-political reasons. Others have used psychological frameworks to analyse the competitive interaction between Kerr, Whitlam and Malcolm Fraser.
Few people concentrated then on what role Kerr was performing. It was generally assumed that he was the Queen's representative, and one issue became the question of whether Kerr would have been dismissed by the Queen on the advice of the prime minister if Whitlam had chosen to proceed in such manner.
By the 1999 republic referendum, things were very different. The monarchy-republic debate, in its infancy in 1975, put a special focus on the matter of Australia's head of state. The Australian Republican Movement's position then (and now) was that the governor-general is the Queen's representative, and an independent Australia needs a president appointed from within Australia to become its own head of state.
Defenders of the status quo, including politicians and leading monarchists, held two conflicting positions. The moderate position was that the governor-general was, and is, the de facto head of state, despite the Queen's constitutional position, while the more extreme position was that the governor-general really was, and is, the head of state and the Queen is something different. The alternative term used was "sovereign". These semantics are unconvincing.
The monarchists failed to win this argument in 1999, but they were successful enough in so muddying the situation that the edge was taken off the force of the republican position. The campaign was reduced to an arid argument about the status of the governor-general, rather than a powerful nationalist appeal as it should have been (and still is).
The Palace correspondence confirms two things. The first is that the British Crown was interfering in the 1975 dispute in ways that should offend anyone who wants Australia to be a fully independent nation. The Palace did not stand above the fray. Hocking will now reveal more.
The second is that Kerr acted as the Queen's representative, rather than as an independent head of state. He consulted the Palace and took advice from the Queen's secretary acting on behalf of the Queen. The republicans remain correct. The Governor-General of Australia is the Queen's representative.
- John Warhurst is an Emeritus Professor of Political Science at the Australian National University and was chairman of the Australian Republic Movement from 2002-05.