The Constitutional Historiography of the Palace Letters
Will Partlett
12.08.2020
Prime Minister Gough Whitlam’s dismissal by Governor-General Sir John Kerr in 1975 occupies an important part of Australian collective historical memory. It does so for good reason. By any account, the decision by an unelected representative of a hereditary monarch to dismiss an elected prime minister in a democracy is controversial. The way this period is remembered, therefore, is central to the debate about whether Australia should be a republic. The dismissal—and the debate about an Australian republic—has come back into public view with the recent release of the Palace letters.
What new light do the newly-released Palace letters shed on the Australian republican movement? Looking at the widely different interpretations of the letters that have emerged since their release, one might be tempted to argue that they show little other than the preconceived notions of those interpreting the letters.
This short post—drawing on a recent paper of mine—will apply the insights of professional historians and historiography to this debate. Historiography teaches us that although history rarely finds objective answers to contemporary questions, it should shape or guide the process of finding an answer. Thus, although the Palace letters do not fundamentally settle the republican debate, they do provide important insight into the workings of Australian executive power. In so doing, they pose important new questions to consider in the debate about an Australian republic.
Constitutional historiography
In that recent paper, I explore the lessons that historiography—the methodology of professional historians—has for constitutional argument both inside and outside of court. The first lesson is that historiography does not take a post-modernist position that history is irrelevant to contemporary questions. Thus, the Palace letters are relevant to the current republican debate in Australia.
But historiography does caution against how history is applied to contemporary questions. Most importantly, it suggests that those who write history are frequently not neutral scholars unearthing an objective answer from history. Instead, those reasoning from history will be tempted to selectively “remember” particular parts of history that provide objective support to their preferred answer. This is a particularly true for lawyers, who are trained in the selective use of case precedent to present objective answers to courts.
To counter this, historiography counsels that we must critically evaluate historical arguments on two inter-related grounds. First, we must look at how historical facts are framed and selected in constructing a historical account. In other words, what is being “remembered” in this particular account of history? Second, we must then determine how this historical account is related to a contemporary answer. Put another way, what contemporary constitutional question is history being applied to and to what extent is a pre-conceived answer to this question driving the historical account?
Historiography shows that the more historical meaning is shaped and manipulated by a pre-determined contemporary answer, the less likely it is to be useful. Instead, history is most useful when it is explored independently of a pre-determined answer. In this more balanced form, the historical account can then shape and guide the process of finding an answer to contemporary constitutional questions. This suggests that the Palace letters will not provide easy answers to the debate—particularly if they are used to advance a pre-conceived answer. But if they are analysed independently of a pre-conceived answer, the letters provide important guidance in understanding the republican debate.
Three historical positions on the Palace letters
These historiographical insights are critical in helping us to understand the contemporary relevance of the Palace letters. From a survey of media commentary in the weeks since the release of the letters, at least three historical positions have emerged. The first two are examples of historical accounts that “remember” particular aspects of the letters to suit pre-conceived political positions. The third is an attempt to understand how the Palace letters contribute to our understanding of the reserve powers of vice-regal officers in constitutional law.
A. The republican interpretation
The first historical account—which I call the “republican” interpretation—draws on revisionist history led by Jenny Hocking that seeks to stress that Whitlam’s dismissal was a deeply undemocratic attempt by vice-regal and regal officers in both Canberra and London to remove an elected Prime Minister. This historical interpretation has focused heavily on seeking evidence that the Palace was covertly involved in “green lighting” the decision to remove Whitlam. In fact, it appears one of the key reasons for Jenny Hocking’s decision to bring the case to the High Court was to find a ‘smoking gun’ in these letters.
The republican interpretation provides a historical account of the Palace letters that selectively remembers the letters between Kerr and the Palace discussing using the reserve powers to dismiss an elected government. In a series of articles, Hocking argues that these letters are every bit the “bombshell” that she had predicted. She focuses on how a key representative from the Palace argues that the reserve powers to remove Whitlam “do exist” and “[i]f you do, as you will, what the constitution dictates, you cannot possible [sic] do the Monarchy any avoidable harm. The chances are you will do it good.” Hocking argues that this discussion “played a critical role in [Kerr’s] planning and in his eventual decision to dismiss the government.” For Hocking, therefore, this confirmation from the Palace is the “green light” from the Palace that she had long described.
This historical account is then used to support a clear contemporary answer to the debate about whether Australia must become a republic. Hocking argues that “[t]he damage this has done to the Queen, to Kerr, and the monarchy is incalculable.” The Chair of the Australian Republican Movement Peter FitzSimons said he was “gobsmacked” by the Palace letters and that they signal that it is time to “get on with” making Australia a republic. Katharine Murphy for the Guardian argues that Palace letters are “an open and shut case” that Australia should become a republic. The Age argues that the letters “confirm” the need for a republic.
B. Status quo, monarchist interpretation
The second interpretation of the Palace letters is grounded in an attempt to defend Australia’s current constitutional system. This status quo or monarchist interpretation has long sought to defend the actions of Kerr and the Palace and has criticised members of the republican movement for making insinuations that there was a conspiracy between Kerr and the Palace to remove Whitlam.
Those adopting this interpretive position have taken the newly-released letters as vindicating their position. They selectively remember a historical account that emphasises the fact that the Palace letters clearly show that the Palace was not involved. In particular, this account points to the letter sent by Kerr to the Palace stating that he made the decision before informing the Palace. They also point to the Queen’s refusal to grant Whitlam’s last-minute request that the Queen reinstate him after he was dismissed.
This historical account, the monarchists argue, has a clear and objective contemporary relevance: the superiority of Australia’s current system of constitutional monarchy. The Chairman of the Australia Monarchist League, Philip Benwell, argues that the letters “prove” that the Whitlam dismissal was “never a constitutional crisis” and that Australia’s system of government is “the best and safest form of government for the Commonwealth of Australia.” Commentary in The Australian newspaper has sought to use the letters to implicitly support the monarchy. One article argues that the letters show the “sad decline of the Australian Republican Movement.”
C. Constitutional interpretation
A third interpretation of the letters can be called the “constitutional interpretation.” This approach is not driven by a pre-conceived position on the republican debate. It is instead focused on a clearer and fuller understanding of the exercise of reserve powers by vice-regal and regal officers. The commentary of Anne Twomey—who has written a 900-page book on this topic—is the clearest example of this.
Twomey’s historical account explains that the letters debunk conspiracy theories that the Palace made the decision to dismiss Whitlam. On the contrary, they confirm the passive role of the Palace in this process. Twomey explains that there was “nothing unusual” in the discussions between Kerr and the Palace. Instead, the Palace only encouraged Kerr to “obey the Australian Constitution, which is something we all should do.” Twomey’s account does, however, highlight an important potential problem in Australia’s system of executive governance. In particular, she describes the possibility of a “race to the Palace” between a Prime Minister and a Governor-General who were unable to work together. Kerr himself identified this problem in the letters, writing to the Palace that the breakdown of trust between himself and Whitlam could lead to a situation where “I would in fact be trying to dismiss him [Whitlam] whilst he was trying to dismiss me.” This would, Kerr stated, put the Queen in an “impossible situation.”
Twomey’s more balanced historical account reflects the fact that she is not interested in using the history to fit a particular contemporary answer. Instead, the contemporary relevance of the letters for Twomey are to better understand the exercise of reserve powers by vice-regal and regal officials.
Evaluation
This analysis leads to two lessons.
Lesson #1: The letters provide no easy or objective answers to the republic debate.
It is clear that attempts by both the republican and monarchist interpretations to find in these newly released letters an objective, “open and shut” answer to the republican debate are futile. As a matter of history, one side is not “correct” and the other “wrong”. Instead, both selectively “remember” particular historical facts (sometimes out of context) that suit their pre-conceived contemporary answer. This kind of history ultimately distracts from the real historical lessons that the Palace letters provide on the republican debate.
Lesson #2: The letters do help us better understand the workings of Australia’s constitutional monarchyand therefore are highly relevant to the debate about an Australian republic.
Reading the letters without an eye to a pre-conceived answer on the prospect of an Australian republic, however, sheds important light on the debate about an Australian republic. Twomey’s constitutional account of the letters provides important insights that should shape the debate about an Australian republic. First, the letters show that Australia’s constitutional system included (and still includes) detailed—but largely non-transparent—discussions between vice-regal and regal officials on questions of large import to Australian democracy, and that these discussions have led, and can still ultimately lead, to the unilateral decision by a vice-regal officer to remove an elected Prime Minister (and government). Twomey writes that the letters show an “ongoing colonial mindset among those unprepared to accept Australian responsibility for Australian political events”.
Second, the more problematic aspects of the Palace letters have nothing to do with the actual dismissal at all. In particular, they reveal the possibility in a constitutional crisis of a “race to the Palace” between a Prime Minister and Governor-General who are seeking to remove each other. The position that this would put the Palace in would be, as Kerr himself admitted, “quite impossible”.
This less selective account of history therefore raises an important set of new questions for the republican debate: How comfortable are we as Australians allowing these kinds of non-transparent discussions and decisions to be made by vice-regal and regal officials? Further, and more importantly, what happens when a future Prime Minister and Governor-General are in open conflict? The potential that this could force a reluctant Palace to intervene seems to run counter to key Australian democratic values. Thus, beyond the headline-grabbing interpretations, the Palace letters pose urgent new questions that all Australians must confront in considering the desirability of an Australian republic
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Will Partlett is an Associate Professor at Melbourne Law School.
Suggested Citation: Will Partlett ‘The Constitutional Historiography of the Palace Letters’ on AUSPUBLAW (12 August 2020) <https://auspublaw.org/blog/the-constitutional-historiography-of-the-palace-letters/>