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Constitutional Umbilical Cords: The Palace Letters and Royal Secrecy

On July 14, Jenny Hocking was breathless. “Forty-five years after they were written,” the political scientist penned with excitement in The Conversation, “hundreds of previously secret letters between the queen and the governor-general of Australia, Sir John Kerr, relating to the dismissal of the Whitlam government in 1975 will be released by the National Archives in Australia this morning.”

For those outside Australia, this may seem a bit over-egged, a provincial chapter in a country that was struggling to find itself, wedged as it was between Brit-longing and US guardianship. For those in Australia, the release was celebrated like the arrival of a mixed-bag Messiah, telling of good, and bad news, about why the reformist Prime Minister Gough Whitlam was effectively given the chop by an unelected official representing the British monarchy.

The stash of 211 letters, comprising 1,200 pages, have been called the “Palace Letters.” But their revelations are merely one part of the story and still require decent perusal. While commentators and pundits struggle with the subject matter, speed reading and sawing facts to fit their prejudices, the entire event underscores the default secrecy that preoccupies Australian institutions and their continued orbit with the United Kingdom.

Prior to the reluctant release, the correspondence, under lock and key in the National Archives of Australia, had been part of the Queen’s embargo, her “personal” records to be staunchly defended by her subjects in Canberra. The Official Secretary to the Governor-General had lodged the Palace Letters with the Archives with instructions that they “remain closed until after 8 December 2037,” a date later revised to December 8, 2027.

This decision had every reason to be seen as undemocratic and very much in keeping with Royal diktat, a reminder that Australians, strictly speaking, remain subjects rather than citizens. An Australian prime minister had lost his head, metaphorically, but Australians were not to know the nature of the discussions between the man who initiated it in Canberra, and the Palace reaction in Britain. What meddlesome role had the Palace played in Australian politics? Why did the Governor-General, Sir John Kerr, seize the sword so adamantly to decapitate Whitlam?

Hocking’s nose had been tickled and put out of place. In 2011, her request to access the records was rejected by the National Archives. Eschewing timidity, she again up the issue in 2016. On being rejected a second time, she initiated legal proceedings. The argument put then as before by the National Archives was traditional and musty: the letters were not Commonwealth records but personal to the monarch, or at the very least, the monarch’s representative in Australia, Sir John Kerr. The property of her royal person was off limits.

The litigation that followed was a reminder that Australia remains a country addicted to secrecy, even on material covering the events of 1975. The commencement of proceedings in the Federal Court caused consternation in Buckingham Palace and to the Australian Governor-General’s Official Secretary, Mark Fraser. In February 2017, Fraser initiated correspondence with the Queen’s Private Secretary, Sir Christopher Geidt. The opening of the first letter is telling: “It is the understanding of the Office of the Official Secretary to the Governor-General that is a matter of long-standing convention that non-official correspondence between the Monarch and Her Governors-General across the 15 realms outside the United Kingdom are private and confidential communications, not forming part of any official government records.”

This formulation was problematic, drawing a false distinction in the correspondence generated between Canberra and the Palace in an official or private capacity. The fact that Kerr was potentially communicating his intimate views about a chaotic political time in Australia could well have been shielded as a “personal” matter, thereby making him, and any decision made by the Queen, unaccountable.

But convention is, without any intended pun, sovereign. At stake, as Fraser explained, was the “fundamental British constitutional principle that communications between The Queen and Her Ministers and other public bodies should remain confidential.” This was also done to also preserve the neutrality of both the Monarch and the Royal Family. Such an understanding was accepted in correspondence between the Office and the Private Secretary in 2011.

In reply, the Private Secretary was in full agreement, “that correspondence between the Sovereign and her Governors-General and their respective offices are made in confidence. These are essentially private communications which are inherently sensitive.” To that end, the Archives Act 1983 did not catch the records in question “but are instead retained on the advice of the Royal Household for a minimum period of 50 years to reflect the uniqueness of the length of a reign.”

The Federal Court, in 2018, found that the Palace Letters were the property of the person then holding the Governor-General’s office, Sir John Kerr. Access, should it be granted to the public, would only be given in 2027 at the earliest, and even then, subject to conditions. In February 2019, the Full Federal Court dismissed Hocking’s appeal, with the majority rejecting “the approach that everything that a person who holds an office does is done by that person officially.” A flicker of hope was supplied by the robust dissent of Justice Flick. “The documents include correspondence between a former Governor-General of this country, written in his capacity as Governor-General, to the Queen of Australia in her capacity as Queen of Australia, concerning ‘political happenings’ going to the very core of the democratic processes in this country.”

The restrictive reading by the majority of the Archives Act, Justice Flick suggested curtly, were not supported, be it the second reading speeches of the former bills, nor the report of the Senate Standing Committee on Constitutional and Legal Affairs. A “Commonwealth record” should be construed simply, unambiguously. As for the Governor-General, he was not some extra-legal entity, being a “representative of the Commonwealth” and “subject to [the] Constitution.”

The Australian High Court duly found for Hocking, claiming that the correspondence were Commonwealth records for the purposes of the Archives Act. They were part of “a legally endorsed concentration of power” and therefore within the possession and control of the Commonwealth. At the time they were deposited, they were property of the “official establishment of the Governor-General” and were as such “Commonwealth records.” This all seemed like common sense in a field often marked by common nonsense. Only Justice Nettle, in a lonely dissent, stayed the traditional course, suggesting that Sir John Kerr exercised control over his communications with the Queen and engaged in such communications on an understanding they would remain confidential.

The entire episode highlighted the continued existence of a constitutional umbilical cord linking Buckingham Palace to Australia, marked by the chemistry of secrecy. For republicans, it is a reminder of continued political infantilism; for conservatives, it is an argument that what works doesn’t warrant change, a point that was sorely tested in 1975. The stillborn republican movement in Australia is unlikely to receive a transfusion from these papers and the paladins of secrecy will continue about their shielding work. But at the very least, Hocking’s efforts, and the High Court decision, will see some light cast on the constitutional curiosities of the Australian political system, along with its monarch resident thousands of miles away.

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14 comments

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  1. Phil Pryor

    Kerr, a drunken, dickbrained, devious, delusional, desperate dodgy dinosaurial dorky dillbury, is best forgotten, except he brought shame, indignity, humiliation, grovelling subsequiousness and supine shittiness upon the nation he led. A poxed, political, perverted prawn…

  2. Jack Cade

    Phil Pryor

    He also showed that modern monarchy is no different to the devious, ruthless robber barons of yesteryear.

  3. New England Cocky

    Nobody in the MSM has mentioned the role of the CIA in the Dismissal. Furthermore, as noted elsewhere, nobody has questioned the role of Martin Charteris, the Royal Private Secretary and his role in allegedly withholding information from Betty Windsor.

  4. Carina McNaughton

    New England Cocky. No one will mention the role of the CIA. Listening to ABC radio on the way home a caller rang who was Gough’s private secretary and she had hand delivered a letter to the premises of the CIA. Raff did not pursue asking her questions, more like that’s a nice story. Speaking with her would have been fascinating.

  5. Phil

    New England Cocky.

    Pilger is not MSM but the CIA’s involvement in the Whitlam dismissal is well canvassed in his book ‘ A Secret Country ‘

    The book ” Spy Catcher ” by Peter Wright leaves the reader with no illusions of what governments are capable of.

    From the Guardian Approx. 4 years ago..

    Cabinet papers indicate the government, then led by Bob Hawke, backed the suppression attempt after receiving advice that British counterparts considered Australian intervention as “crucial to the outcome” and also that the book would cause vague “indirect effects” on security.

    The head of the domestic spy agency Asio warned against causing “an erosion of the British goodwill” and setting a precedent for greater openness about the work of Australian intelligence agencies, according to a memo presented to the cabinet’s security committee at a meeting in Canberra on 3 November 1986.

    In a continuation of secrecy, the documents relating to the security committee’s decision-making were initially blocked from public release when other cabinet documents from 1986 were published under the Archives Act in 2014. The Wright-related documents were subsequently published, with several redactions, after Guardian Australia appealed against the decision.

    Balancing security and privacy: Bob Hawke faced dilemmas familiar today
    Read more
    The security committee weighed up what role the Australian government should play in the NSW supreme court case brought by the British government against Heinemann Publishers.

    A memorandum prepared by the Department of the Prime Minister and Cabinet noted that Wright had provided “detailed technical descriptions of all the methods used by British intelligence that he knew of when he retired”. The book also described “sensational actions” by the security service and dealt in great detail with the search for a Soviet “mole”.

    “The British are seeking to avoid discussion of any of Wright’s specific allegations, arguing that, for the purposes of the trial, they can all be assumed to be true and even then Wright’s breach of confidentiality would be a breach of contract and inequitable,” the government memo said.

    “The British government has for some months been in touch with Australian officials and intelligence agencies seeking support in its action. The British government and its legal representatives consider that support to be essential if they are to succeed, because the trial judge, Powell J, has said that he places great weight on an indication of Australia’s public interest in the affair … Australian intervention may therefore be crucial to the outcome, and is so perceived by the British government.”

    The initial memo referred only to indirect effects on Australia. “Although there is nothing in Wright’s manuscript of which the disclosure would directly threaten Australian national security, the indirect effects could well be substantial and damaging,” it said.

    In a sign of institutional hostility to access to information, the then Asio chief was quoted in the memo as saying a failure to intervene could cause “a serious weakening of the Australian intelligence community’s defences against the Archives Act and FOIA [freedom of information] demands, flowing from the precedent which would be drawn from the government’s evident lack of concern to protect shared intelligence secrets in the Wright case”.

    There would also be “an invitation, if not a legal precedent, to disaffected Australian officers to make similar public revelations of sensitive Australian intelligence secrets for revenge and for profit”.

    The initial draft of an affidavit to be signed by Michael Codd, the then secretary of the Department of the Prime Minister and Cabinet, was amended after the security committee discussed the contents.

    The revised version, approved a week later, said information-sharing relationships between Australia’s intelligence agencies and friendly counterparts were “of great value in the protection of Australia’s national security, including protection from terrorism”.

    Codd’s affidavit said unauthorised disclosures by former members of similar agencies “may seriously damage Australia’s national security”. Such disclosures, he said, would decrease the quality of material shared between countries; deter potential intelligence sources within Australia from providing confidential information; increase the knowledge of intelligence services and terrorist groups hostile to Australia; and encourage disaffected former members to make similar public disclosures.

    The affidavit was tendered to the NSW supreme court, but did not sway the ultimate decision. The court dismissed the British government’s attempt to restrain Heinemann from publishing the book, finding that a lot of the information was no longer confidential and it was hard to see how details of old technological methods could harm the UK’s national security.

    Turnbull won acclaim for his tough questioning of Sir Robert Armstrong, Margaret Thatcher’s cabinet secretary, who conceded in court that a letter he had written was “economical with the truth”. Turnbull had been asking questions about “the difference between a misleading impression and a lie”.

    The NSW court of appeal dismissed an appeal against the decision, prompting a further challenge to Australia’s high court, which also dismissed the British government’s position in 1988.

    The high court considered significant questions about whether an Australian court should inquire into potential damage to a foreign state from disclosures.

    It found it was not able to assess the degree of friendliness of a foreign state and such decisions “would inevitably present a risk of embarrassment in Australia’s relations with other countries”. Alternatively, it would be “subversive of the role of the courts” if the enforceability of such a claim depended on an executive decision.

    The Spycatcher continues to be raised in British and Australian political contexts.

    The official historian of MI5, Christopher Andrew, said in 2009 that Turnbull’s “brilliant” handling of the case had humiliated British officialdom and had triggered much-needed intelligence service reform.

    In 2011, Turnbull referred to the Spycatcher case when he criticised the prime minister, Julia Gillard, for suggesting the Wikileaks founder, Julian Assange, might have broken the law in relation to the release of troves of US diplomatic cables.

    “The ineptitude of his [Assange’s] detractors has given him greater kudos and importance than he deserved in precisely the same way Margaret Thatcher’s iron will made Spycatcher a global bestseller,” Turnbull said at the time.

  6. Caz

    Once again Phil’s description is spot on. A wonderful wordsmith,
    I am waiting to learn the role of Garfield Barwick in all of this. He was a truly creepy individual.

  7. New England Cocky

    @Phil: Thanks for the most informed post. It is sad that Turnbull sold his soul to the Far Right LIarbral scum-bags because he had previously demonstrated such talent. As Professor Jenny Hockey has concluded elsewhere, Betty Windsor was fully knowledgeable about the Whitlam ALP government Dismissal and likely a willing Pommie participant keen on bringing “”those damned colonials”” into line with English interests.”

    Another frequently overlooked source is Honi Suit, the University of Sydney student newspaper from the period.

    @Phil Pryor: You certainly have a way with words that leaves no doubt whatsoever about your feelings.

  8. wam

    The letters show the umbilical cord is but a belly button.

    The pisspot was carried by Australians with barwick and mason prominent and, as with spycatcher, the queen was ‘the queen’ just a name .
    ps
    ‘For republicans, it is a reminder of continued political infantilism; for conservatives, it is an argument that what works doesn’t warrant change
    Funny sentence, Binoy.
    Surely not all royalists are conservative and not all republcans have so little conservatism as to give politicians a free hand

  9. Phil

    New England Cocky.

    I have absolutely no doubt that the Queen and the CIA were in on the dismissal. I also have no doubt the British Establishment still have control of Australia’s destiny. There are things I believe and I will take to my grave and be certain I am right, yes even if I don’t have a lot of support from my peers for those beliefs. For instance, I believe the death of John Lennon was a CIA hit. Sure they got some sap to pull the trigger, but they were behind it none the less. The Kennedy’s, King, Malcolm X , probably Yasser Arafat the list is endless. We know the American’s part in the Vietnam war was predicated on a load of lies, as was our own involvement in it. etc. etc. etc.

    The same goes for our police forces, they are all corrupt as the day is long. Btw I’m not talking about the baggy arsed copper that raises revenue, by giving you a ticket for not wearing a seat belt. I’m talking about the bastards that wear that much silver on their shoulders, they’re likely to topple over. Like the great George Carlin RIP said, ‘ It’s a great big club and you aint in it ‘.

    When most people look back over their lives and look at the corruption and fiddling that has gone on even down to the lowly old councilor, who takes a kick back for opening a parcel of land for development some where, it is a wonder we believe anything our media tells us. My old man told me don’t believe anything you hear and only half of what you see. I have done alright with that little bit of advice.

  10. New England Cocky

    @Phil: Geez Phil, I thought that I was the solitary political skeptic remaining in Australia. Welcome to the club; there are a growing number of us under the present COALition misgovernment.

  11. Jack Cade

    Phil.
    I’m with you all the way apart from the Lennon shooting. Lennon was a spent force, a guttered
    candle when he was murdered. He was never going to lead any revolutions or peace movements. He’d stopped producing any decent music for years.
    As for everything else you cite – a Latin phrase used in British courts is ‘res Ipsa loquitur’ – the thing speaks for itself. Ockhams razor points the way. When all else is considered, always plump for the bleeding obvious..,

  12. Phil

    ‘ I’m with you all the way apart from the Lennon shooting. Lennon was a spent force, a guttered
    candle when he was murdered. He was never going to lead any revolutions or peace movements ‘

    I have been a musician for over forty years, I still wet meself when I hear the Beatles. .Lennon like Mc Cartney were/are genius’s Lennon could write music while he was taking a piss. The band will be remembered in a thousand years not that the human race will be around to appreciate it. But I digress.

    There have been enough books written about the connection between Lennon the FBI and the CIA to fill the Smithsonian library. It was common knowledge, Nixon was scared to death of Lennon because he had enough clout/sway/influence call it what you like, to carry an election. Nothing the establishment does shocks me, we will agree to disagree on who killed him. I don’t know, but the evidence points towards a government hit.

    Brain food here. https://www.npr.org/templates/story/story.php?storyId=130401193

  13. New England Cocky

    @Phil: Uhm Phil …. just one small impediment to the “”Lennon for President”” theory. The Constitution of the USA (United States of Apartheid) requires all candidates for POTUS to be American borne citizens, and Lennon was a very talented POMMIE musician.

    This same impediment prevented Arnold Schwartzenegger from running for POTUS after his maximum two terms as a very successful Governor of California.

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