It is surely ironical that on Bastille Day 2020, the faces of Australia’s fake republicans should be so liberally smeared with egg. (They are fake because they reject real republics, such as the United States, in favour of trying to contort what is essentially a constitutional monarchy into a highly flawed and unacceptable politicians’ republic.)
The release of the so-called ‘Palace Letters’ between Governor-General Sir John Kerr and Buckingham Palace has confirmed what every serious observer has long known was beyond doubt, that the Queen had no advance knowledge whatsoever of the dismissal of Prime Minister Gough Whitlam. Nor indeed were the Queen and the British government in league with Sir John.
In fact, as leading constitutional lawyer Professor Anne Twomey concludes, the Palace and the British were eager to ensure they were not involved in what they rightly believed was a purely Australian affair.
Sir John’s letter of 11 November, signed after the dismissal, confirms a telephone call by Sir David Smith and states:
“I have taken a decisive step and terminated the commission of the former prime minister Mr Whitlam and commissioned Mr Fraser to act as a caretaker Prime Minister.’’
’’I decided to take the step I took without informing the Palace in advance … because the responsibility is mine and I was of the opinion that it was better for Her Majesty not to know in advance, though it is, of course, my duty to tell her immediately.’’
In his reply, the Queen’s secretary, Sir Martin Charteris, confirms the wisdom of Sir John’s decision not to inform the Queen in advance:
“If I may say so with the greatest respect, I believe that in NOT informing the Queen what you intended to do before doing it, you acted not only with perfect Constitutional propriety but also with admirable consideration for Her Majesty’s position.’’
“…It is also clear that you will only use them in the last resort and then only for constitutional and not political purposes.’’
And that is precisely what Sir John did.
Whitlam knew what the constitution required him to do. This was what he did in 1973 and what British prime minister Herbert Asquith did in 1910 when the House of Lords rejected the budget. This is to advise a general election.
If Whitlam did not want to do that, his only alternative was to resign. With supply running out, his advice to hold a half-Senate election provided no answer. If it were held ― the necessary co-operation of some state Governors was unlikely — the new senators could not have taken their seats for almost eight months.
The power to act was with the Governor-General and not the Queen. On this the Constitution is very clear. While the executive power of the Commonwealth is stated to be vested in the Queen, meaning the Crown, it is exercisable by the Governor-General. In other parts of the Empire, even including the older Dominion of Canada, this would be done by instructions empowering the Governor or Governor-General to directly exercise power.
The case to release what have hitherto been treated as private papers was unnecessary. Two courts had already decided against Professor Hocking. And the High Court only agrees hears about 10 per cent of requests for ‘special leave’ to appeal. There were surely far more important issues to resolve than republicans obviously looking for that elusive silver bullet which will deliver them their republic without actually designing something which improves the governance of Australia.
One question unresolved is the divergence among appellate courts over the standard which is required for the defence of truth in defamation to succeed where serious allegations are made, something which could be crucial in the litigation concerning the media campaign against the Victoria Cross winner, Ben Roberts-Smith. Another example is the Cardinal Pell case where the decision to give leave was nervously delayed until they actually heard the appeal.
The result of all this is that the taxpayers have had to pay for some very expensive litigation for papers of historical interest which would have been available in 2027.
The letters confirm that what Sir John Kerr said in his memoirs was true. It should be emphasised that it was always Sir John’s wish that the letters be eventually seen: the reason why they were put in the National Archive.
First published in Spectator.com.au as "There’s no magic bullet in the Palace Letters, yet republicans have shot their conspiracy theories to pieces" and reprinted here with the author's permission.
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Professor David Flint is an emeritus professor of law and was chairman of the Australian Broadcasting Authority and the Australian Press Council, president of the National Federation of the English Speaking Union, Associate Commissioner with the Australian Competition and Consumer Commission and convenor of the Committee of Australian Law Deans. He has been National Convenor of Australians for Constitutional Monarchy since the 1999 referendum campaign. The author of several books, he has published widely on topics such as the media, international economic law and on the Constitution. At Barcelona in 1991, he received a World Jurist Association award as World Outstanding Legal Scholar. He was made a Member of the Order of Australia in 1995.