Back in 1999, during the leadup to the republic referendum – now approaching halfway between John Kerr’s time and ours – I circulated on an email list my reasons for supporting a “yes” vote, in which I said this:
There are three obvious defects in our constitution that any republic proposal should remedy: (a) our sovereign (…) is a foreigner based overseas, thus calling into question our independence; (b) more importantly, the sovereign is a hereditary monarch, thus symbolically striking at the democratic basis of our polity; (c) most importantly, the governor-general, who is our “effective” head of state (…), has no security of tenure and is appointed or dismissed at the whim of the prime minister.
I went on to explain that the proposal being voted on dealt with all three, although in a “rather unsatisfactory” manner in the case of (c). As expected though, the referendum went down to defeat, and the issues returned to the back burner for another two decades.
Now they are back, however briefly, with the release yesterday of the “palace letters”: the correspondence between governor-general Kerr and the queen’s private secretary, Martin Charteris. (You can see them all by following the links in channel nine’s story. They’re well worth the read.)
So let’s start by understanding why point (c) matters so much. The processes of parliamentary government are not self-executing: they depend on having someone to appoint ministers, summon or dissolve parliament and take various other official actions. Generally (although not necessarily) that person also performs the ceremonial functions of head of state, whether monarch, president, governor-general or whoever.
These powers may be codified or may be left to unwritten conventions; if codified, they may be more or less narrowly drawn, leaving the person – the constitutional umpire, let’s call them – with different amounts of discretion. But the element of discretion cannot be eliminated entirely, since it is impossible to foresee every contingency.
In a crisis, security of tenure becomes important. An umpire who holds office only at the pleasure of one of the players will act differently to one who cannot be easily dismissed. And that difference is independent of the question of how they are initially appointed and whether the ultimate authority is foreign or local.
That’s the essential context for understanding the events of 1975. As I put it five years ago:
At the time, Labor partisans often said that Kerr had acted in a way that the Queen herself would not dare. But this missed the point: the Queen would never have to act secretly, because she cannot be summarily dismissed. She could afford to let her prime minister know what she was thinking.
The palace letters show this concern in Kerr’s mind. He says that if he tipped his hand to the prime minister, Gough Whitlam, Whitlam would try to have him sacked first. His worry, he says, is not so much that such an attempt would succeed, but that it would draw the queen into Australian politics: something that Kerr, with his exaggerated respect for the monarchy, seems much more concerned about than Charteris does.
Prior to the release of the letters, there was speculation that the palace had sought to reassure Kerr on this point. Whitlam’s biographer Jenny Hocking, who fought long and rightly to get access to the letters, concluded that “the Palace had conveyed to Kerr that it would delay implementing a decision of the Prime Minister of Australia on his recall.” If so, that would have given Kerr breathing space in which he could have shared his concerns more openly with Whitlam, and made him more blameworthy for not using it.
But the actual letters do not bear out this theory. The most Charteris says is the following, on 2 October 1975 (well before the Senate had blocked supply):
If such an approach was made you may be sure that The Queen would take most unkindly to it. There would be considerable comings and goings, but I think it is right that I should make the point that at the end of the road The Queen, as a Constitutional Sovereign, would have no option but to follow the advice of her Prime Minister.
And that’s consistent with Charteris’s general attitude; he repeatedly insists that Kerr is on his own and that these are Australia’s problems, not London’s. Kerr, on the other hand, is torn: he doesn’t want to involve the queen, but he sometimes sounds as if he would like someone else to take on some of the responsibility. On 27 October he says “I should welcome any observations on a private and personal basis which you may care to make and which, as you see it, should be taken into account in the interests of the Monarchy in Australia.”
But Charteris doesn’t oblige. He just tells Kerr that “If you do, as you will, what the constitution dictates, you cannot possible [sic] do the Monarchy any avoidable harm.” And even this reassurance, such as it is, although written on 5 November, appears in the file after Kerr’s materials from 11 November, so presumably was not received until after the decision had been made.
In the end Kerr, logically enough from his point of view, chose not to warn the palace in advance of what was coming. The argument now from Whitlam’s partisans seems to be that Charteris should nonetheless have told him beforehand not to do it, and to just follow Whitlam’s advice; Chris Wallace complained yesterday that “There is, notably, no countervailing call from the palace to let the legitimately elected prime minister see his plan through.”
But that, surely, is just the sort of interference in Australia’s internal affairs that we should be trying to avoid. And Charteris does avoid it; he soothes Kerr’s ego, but despite John Warhurst’s odd idea (as quoted in yesterday’s Crikey) that the letters show “the essential one-ness of the relationship between the GG and the British monarchy,” when it comes to the substantive questions he rarely gives him anything that could be called “advice”.
Instead, Kerr uses Charteris more as a sounding board, much as he might have talked to his dog or to his own reflection in the mirror. And while he expresses himself in ways that now sound faintly absurd, Australia was a very different place in 1975 – not least in the way that responses are always a few days behind currency, as mail travels back and forth in leisurely fashion. At one point (29 October) Kerr remarks that “One of the consequences of the crisis is an economy campaign which includes a cut-back on couriers to London.”
The usual suspects are still peddling the idea that the letters are all further evidence of a “conspiracy”, but I much prefer the view of Anne Twomey, who says that they “show nothing other than people taking their responsibilities seriously and doing the best they can in difficult circumstances.”
You can argue that those responsibilities are stupid and anachronistic and should be reformed. Certainly you can argue that Kerr made a bad decision, and that he should have waited another week or two to see if the crisis would sort itself out. And while opinions will differ, I don’t find the Kerr who reveals himself in the letters to be an attractive personality; in Katharine Murphy’s words he is “a nervous, exhaustive, effusive, backside-covering correspondent.”
But the fundamental point remains. Kerr may have used his powers unwisely or dishonorably, but those powers or something like them are nonetheless necessary, and because of our unsatisfactory constitutional arrangements they risk being used in a secretive and precipitate fashion.
Instead of endlessly refighting the politics of 1975, we would do better to take the task of constitutional reform seriously so that when such a crisis recurs, as no doubt one day it will, we will be better prepared for it.