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.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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