Lot's Wife Edition 4

Lot’s Wife • Edition Four
Hot Take - The Palace Letters, Kerr,
Whitlam and Queen Liz
Words by Kelly Phan
PRO-REPUBLIC
If you’re anything like me, recent thoughts of the Queen of England have only included
binge-watching Netflix’s The Crown or reading gossip columns about Harry and
Meghan. Nonetheless, the Queen’s influence over Australia extends far beyond the realm
of pop culture. She is Australia’s head of state and has a representative holding Australia’s
highest seat of power – the Governor-General. Australia’s situation as a constitutional
monarchy is a long-running debate, with notable events including the 1975 dismissal of
the Whitlam government and the 1999 Australian republic referendum. The exposure
of the “Palace letters” is the latest episode in a show that has been playing out for decades
in Australia: Republic v Constitutional Monarchy.
Australian constitutional law can get complicated quite quickly, so this is a basic
breakdown for the uninitiated of the Whitlam dismissal, the Palace Letters and how it
relates to the movement for a republic.
Let’s start at the beginning of this story.
For those unfamiliar with the Whitlam dismissal, here’s the TLDR: On 11 November
1975, the Governor-General Sir John Kerr sacked Gough Whitlam as Prime Minister.
The sacking was the climax of months of tension between the Government and its
conservative opposition – who were using their majority in the Senate to block any
appropriation bills, effectively preventing any funds reaching federal development
projects. The infamous Palace Letters, which have been private records up until now,
show that Kerr wrote to the Queen’s private secretary to signify an intent to sack
Whitlam and dissolve Parliament.
As a side note for avid fans of The Crown: I have disappointing news that it is unlikely we
will see a Whitlam or Kerr impersonation on Netflix anytime soon. This episode in the
English monarch’s history was apparently not dramatic enough for Netflix, as it failed
to make an appearance in Season 3, which stretched until 1977.
How could Kerr sack Whitlam?
Glad you asked! Australia is a constitutional monarchy, meaning we still have dear old
Queen Liz as Australia’s head of state. Her powers are delegated to Australia’s highest
position of power in government – the Governor-General. The Queen appoints them
at the recommendation of the Prime Minister for a term of five years. Once they get the
royal stamp of approval, they are awarded highly significant powers such as giving final
approval (Royal Assent) to a bill after it has been passed by the Parliament, and acting as
Commander-in-chief of the Australian Defence Force. Whitlam’s dismissal was a legally
valid exercise of Kerr’s power to dismiss Ministers.
What was said in those spicy letters and why do they add fuel to the republican fire?
Firstly, Martin Charteris (the Queen’s private secretary) confirmed Kerr’s powers to
dissolve Parliament contrary to ministerial advice. This is a “reserve power” and at
the time, the very existence of this power was contentious. They are called “reserved”
because they are not outlined in the Constitution, but are conventions generally
accepted to be within the power of the Governor-General. Although the Queen (and
thus the Governor-General) is obliged to follow the advice of their Prime Ministers, the
power exercised by Kerr went against that obligation.
But hold up, Charteris did advise Kerr to “only use [reserve powers] in the last resort
and then only for Constitutional – and not for political – reasons.” This follows the
Queen and Governor-General’s obligation to stay politically neutral. This leads
us to question: did the blockage of appropriation bills in the 1975 Senate require a
constitutional “last resort”?
One spicy excerpt from the letters that has been noted by commentators is that Kerr
made clear that even if the Solicitor-General or Attorney-General advised him that
the powers do not exist, he would not necessarily follow their advice, as “it does not
follow that in an extreme constitutional crisis [he] would accept that”. As pointed out
by Monash University’s Professor Jenny Hocking, who led the bid to uncover the Palace
letters:
Time and again these letters show that the Queen engaged in intensely
political discussions with the Governor-General, including the existence and
possible use of reserve powers against the government. Far from remaining
above politics, it is difficult to imagine a greater level of political involvement
than this.
What is absent throughout these letters is any recognition from either
Charteris or Kerr of the Governor-General’s most fundamental duty, to act
on the advice of elected government, specifically the Prime Minister.
Secondly, several letters show just how much Kerr felt he had to protect the Queen’s
interests. Kerr justified his decision to dismiss Whitlam in a sudden fashion to the
Queen, who would have similarly sacked Kerr if Whitlam had requested it first. This
is because the Queen must dismiss the Governor-General at the Prime Minister’s
request, meaning that a Kerr-Whitlam stand-off would have led to, as Kerr described:
“an impossible position for the Queen”. In Kerr’s humble opinion, “I simply could not
risk the outcome for the sake of the monarchy.”
Charteris responded to Kerr’s notice of the dismissal (which was only sent after the
decision was announced) with the equivalent of a Royal Palace gold star: “I believe in
not informing the Queen of what you intended to do before doing it, you acted only
with Constitutional propriety, but also with admirable consideration for Her Majesty’s
position.”
*Ba dum tss*. When we pit the Queen’s interests against the Governor-General’s duty
to follow the advice of his Prime Minister, Kerr’s letters make it unclear who comes
out on top.
Thirdly, the letters shed some light on a question that has been plaguing us since 1975:
did the Queen involve herself in the Whitlam dismissal? Constitutional law expert
Anne Twomey has argued that these letters are a mere reflection on Kerr’s thoughts
leading to dismissal, rather than a smoking gun on the involvement of the Queen in
Australian politics. This is because there was no direct advice to dismiss Whitlam and
the Queen was not even notified until after the fact. If you agree with Twomey, this leads
to this question: if the Queen is unwilling to get involved in Australian affairs publicly,
then why does she still have a representative in Australia with the highest powers in the
land? As the Australian Republic Movement chair Peter FitzSimons puts it: “If her role
is to oversee, she needs to see what is going on, surely? Otherwise, what is the point?”
Disagreeing with Twomey, Professor Hocking wrote: “These letters, with their clear
and direct political prescription, make a mockery of the claim that the Queen played
‘no part’ in the decision that Kerr then made just days later.” In my humble opinion,
the letters at the very least reveal that in deciding to dismiss Whitlam with no prior
warning, Kerr thought that protecting the integrity of the Queen was more important
than protecting the integrity of a democratically-elected government. The excerpts
outlined before also show a Governor-General that valued the opinion of the Queen
over the opinion of Australia’s Attorney and Solicitor General.
In a year where Australians are continuing to witness the impacts of a devastating
bushfire season, a global pandemic and a worldwide reckoning with racism, bigotry and
intolerance, a 1975 constitutional crisis may seem rather irrelevant. Not to mention, the
odd gossip piece or Netflix drama about the British monarchy is a great distraction from
the real-life dramas of 2020. However, the Palace letters offer a critical lens through
which we can ponder upon unresolved questions of Australian democracy and its
relationship with a former colonial power. In any case, we should reflect upon the events
of 1975 with the brighter perspective of hindsight – lest history repeat itself.
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