Wednesday, July 15, 2020

On The Palace Letters

It seemed inevitable that, after all the secrecy and all the court battles, the publication of The Palace Letters would renew calls for a republic in Australia. Our 29th Prime Minister, and former Chair of the Australian Republican Movement (ARM), Malcolm Turnbull, described the letters as amounting to ‘an act of interference in Australian democracy’. Whitlam biographer, professor Jenny Hocking – the historian who tenaciously campaigned for the release of The Palace Letters – called the Letters a bombshell which damaged Queen Elizabeth’s reputation by proving she had breached her apolitical status in 1975 as Australia’s constitutional head of state. Turnbull’s successor at ARM, Peter Fitzsimmons, did not hold back the adjectives as he sought to re-energize Australia’s push towards a republic by describing himself as ‘gobsmacked’ by the letters.

However, the real bombshell of the Letters can be found in what they reveal did not take place during Australia’s political crisis of 1975. To be sure, many of the key actors who contested the political stage that year acted in bad faith. But there was no broad conspiracy to topple Australia’s most energetically reformist government. Buckingham Palace did not interfere or intervene as events unfolded; the swirl of letters and telegrams between the Queen’s Vice-Regal representative, Governor-General Sir John Kerr, and her private secretary, Sir Martin Charteris, reveal the Palace’s main concern alongside Kerr’s health was for Kerr to act according to dictates of the Australian constitution. As a former Chief Justice of NSW, they expected Kerr would have a thorough grasp of the Australian constitutional requirements and conventions.

The most gobsmacking element about the dismissal is that when the system was placed under extraordinary stress by the blocking of supply, the system worked. The army remained in their barracks. Tanks did not roll down neither George Street nor Swanson Street. The courts continued to operate under the rule of law. Whatever we make of Kerr’s actions on November 11, the crisis was ultimately resolved with the ballot and not bullets. The Australian political system is by no means perfect. Since Federation we have seen the (re-)enfranchisement of people who were excluded by the political settlement of 1900: women, indigenous Australians, migrants from backgrounds other than Western Europe. Our greatest political achievements, such as the 1967 referendum or the rolling back of the White Australia Policy, also reveal our deepest political shames. But, for all the rage that was unleashed in 1975, our constitution weathered perhaps the greatest political storm it has faced, whilst maintaining the political freedoms our Commonwealth was both founded upon and aspires too.
That the constitution was put in this position in the first place was another matter.

Much could be (and has been) written about the Whitlam era of 1972-1975. Gough Whitlam is undoubtedly the most courageous reformer Australia has had as a Prime Minister. He presided over incredible, legacy-building, changes to the country: universal health care, free university education, initiating land right reform and the return of land to its traditional owners, the ending of military conscription, and the withdrawal of Australian troops in Vietnam.

At the same time, Whitlam presided over a troubled and ill-disciplined cabinet. Whitlam’s ministerial comrades plagued his government in crisis after crisis, risking their reformist agenda with charges of incompetency and corruption. Early in their time in office, Attorney-General Lionel Murphy had caused a scandal by personally leading a raid on the Melbourne ASIO office. To circumvent the issue of supply, and enable his vision to nationalize Australia’s energy market, Rex Connor pursued an unconstitutional loan of US$4 billion dollars from a foreign lender. The government was distracted during this time by the scandal of an affair by Treasurer and Deputy Prime Minister Jim Cairns, who exacerbated the crisis by misleading parliament about the Loans Affair.

Whitlam, for all his success in leading Labor out of opposition after 23 years, allowed the cabinet too much freedom to pursue their own interests and programs, often at the cost of the government’s reputation.

But Whitlam’s most fatal blunder lay in his appointment of the new Governor-General in 1974. For all of his legal and judicial background, Sir John Kerr was wholly unsuited for this high office. Admittedly, it is easy to both besmirch Kerr’s character and cast him as a tragic figure. As he acknowledges in the Letters, he became a man of few friends. Within six months of assuming office, Kerr was widowed when his first wife Alison died in September 1974.

However, as The Palace Letters testify, Kerr was destructively obsessed with his own position and reputation. He was paranoid that he would be removed from office – though that paranoia was fed by Whitlam's frequent jokes and remarks about 'a race to the palace' between the Governor-General and the Prime Minister to advise the Queen to fire the other.

In Kerr's mind, his actions to resolve the supply crisis were undertaken to avoid that very constitutional crisis where the Queen was sandwiched between her first minister and her Vice-Regal representative. But Kerr's action leading up to November 11 undermined that defence.
As Kerr drew a circle of advice on how to proceed with Whitlam, from Charteris, and from High Court justices Sir Garfield Barwick and Sir Anthony Mason, he began to negotiate with the Leader of the Opposition on how he might act. This is where Kerr acted in bad faith to the procedures and protocols his office is charged with preserving and protecting. Kerr essentially conspired with the Leader of the Opposition, Malcolm Fraser, to preserve not so much the constitution or the government, but his own appointment as Governor-General.

That action was typified by Kerr’s action on the afternoon of November 11. After the Senate passed supply and Malcolm Fraser had revealed himself in the House of Representatives as caretake Prime Minister, the House voted a motion of no confidence in Fraser and voted a motion of confidence in Whitlam. The House dispatched the Speaker, Gordon Scholes, to Government House to advise the Governor-General to recall Whitlam as Prime Minister.

Instead, Kerr refused to see Scholes. He kept him waiting at the gate for an hour. Instead, he had parliament prorogued by proclamation by his official secretary David Smith, leading to the now famous scene on the steps of Old Parliament House where Whitlam, responding to Smith’s proclamation “God save the Queen”, emerged from behind Smith and said:

“Well may we say "God save the Queen", because nothing will save the Governor-General! The Proclamation which you have just heard read by the Governor-General's Official Secretary was countersigned Malcolm Fraser, who will undoubtedly go down in Australian history from Remembrance Day 1975 as Kerr's cur. They won't silence the outskirts of Parliament House, even if the inside has been silenced for a few weeks. ... Maintain your rage and enthusiasm for the campaign for the election now to be held and until polling day.”
It’s hard to imagine a more miserable or despised figure in Australian public life. The mental image of Kerr which is lodged in my mind is his appearance at the 1977 Melbourne Cup where he was appeared inebriated, and was his speech was drowned under the boos of the crowd. The son of a boilmaker, Kerr has risen to the highest offices in his state and his country. And he knew it. When you read or listen to Kerr, he was well aware of his own self-importance. And recent revelations about his behaviour would not only today make his position untenable, but point towards his lack of qualification for the office he assumed in 1974.

Because of his faults, and the ease with which he could be portrayed as a drunken toft, Kerr provided an easy scapegoat for those who were enraged by Whitlam’s dismissal. Yet it is important to distinguish between personal dislike of the man, the constitutional action he took. Driven by improper motive, Kerr’s actions were neither unprecedented or illegal. While the powers he exercised had long remained dormant, they were not extinguished. And while me wish that a different, wiser Governor-General had chosen a different path, or been more careful in their use of reserve power, dismissing the Prime Minister remained a valid and open option for Kerr.

While Kerr’s legacy is seemingly irredeemable, Malcolm Fraser’s reputation underwent a renaissance after leaving politics.

I grew up knowing Malcolm Fraser as a reformer and advocate of human rights. He became known as the great humanitarian, unafraid to critique his own party and former colleagues, and even forming an unlikely partnership with Gough Whitlam.

The Malcolm Fraser of 1975 was far more impetuous. We forget that Fraser had already ended the Prime Ministership of WWII hero John Gorton in 1971. According to Fraser, Gorton was "unfit to hold the great office of Prime Minister".

(At least in 1971 MPs had the decency to resign from cabinet before assassinating their leader.)
Become coming to power, Fraser’s tactic was an all-or-nothing, scorched earth approach. Arguably, he was an Opposition Leader in the same vein as Tony Abbot – a wrecker.
And it worked.

After only seven months of becoming Opposition Leader, Fraser found himself in The Lodge.
Fraser used the numbers of the Liberal and Country parties in the Senate to block supply to Whitlam’s government. Whitlam could not pass his budget, and the government was at risk of running out of money. Hence some of the crazier schemes like the Loans Scandal that Labor frontbenchers employed to keep their political agenda afloat.

However, it was Fraser’s temperament which caused the 1975 constitutional crisis. Assuming the mantle of Opposition Leader in March, by September Fraser had triggered the Supply Crisis. He did so because he was impatient; Fraser wanted to dam the flow of money to the government in an effort to force an early election in the hope of winning power. While the Senate had the power under the constitution to do so, there was an unwritten constitutional convention that an opposition would not try to use the Senate to block supply.

Other conventions were breached to bring about the Supply Crisis. Despite winning a double-dissolution election in 1974 and therefore arguably having a mandate to pursue his policies, Labor never held a working majority in the Senate. Whilst the government and opposition were initially forced to work with the cross-bench to pass or block legislation, things changed dramatically in 1975.

In February one of the two independents joined the Liberal Party, living the Senate with a makeup of 30 Coalition Senators, 29 Labor Senators, and 1 independent Senator. This changed again when two-Labor held senate seats needed to be replaced by their respective state parliaments, in this case NSW and QLD. Both states were governed at the time by Coalition parties; both states broke long standing convention and did not appoint replacements chosen by the party who had won the seats at the last election. NSW selected an independent, whilst QLD selected a Labor member who opposed Whitlam and was prepared to vote against supply. With these two appointments, the Coalition was given control over the upper house.
(It is worth noting that under Fraser’s premiership, the constitution was amended via the 1977 referendum which required state parliaments to replace a senator with a member of the same political party).

Able to take advantage of these changes in the senate, Fraser pushed Australian federal politics to the brink. It may have been expected that Whitlam, unable to secure supply, would call for an election. But having won an election less than 24 months prior, refused to play Fraser’s game. Parliament was deadlocked.

In breaching the longstanding convention over supply, Fraser played a destructive form of politics which created fault lines and rage in Australian politics that continue to run deep. The Palace Papers reveal that seeing the deadlock coming, Kerr had been searching for months for a way to end the deadlock without compromising the constitution. Hr consulted widely – and this would give the Opposition the opportunity it needed to end the deadlock in their favour. 

Arguably the most insidious action Fraser took during the crisis was, when Kerr turned to hi m for advice, Fraser entered into consultation and negotiation with a Governor-General who was frightened over their own position of power. In a breach of protocol, Fraser was even ensconced inside Government House without Whitlam’s knowledge while Kerr withdrew the commission of the government.

In offering Kerr his ongoing support to remain in Yarralumla, Fraser conspired and exploited the tension between Whitlam and Kerr to his own advantage. Where Whitlam lost office, and Kerr lost his reputation and legacy, it was Fraser – the instigator behind the Supply Crisis and its resolution – who became the chief beneficiary of the dismissal.

And yet...though bruised and manipulated, constitutional democracy in the Commonwealth of Australia continued unabated.

When tested in 1975, our constitutional monarchy worked. It wasn't pretty. Many Australians then and since have had visceral reactions to how it happened. We may rightly question some of the judgments and tactics. But the strength of the Australian political system was to rest the most incredible of powers in the hands, not of politicians, but independent guardians entrusted to use them sparingly. And when they were used, the means for breaking the deadlock was given back to the Australian people in the 1975 election.

Of course, there is a cautionary tale in all of this. The outcome may have been different with other actors in the lead roles on November 12. Though it now appears from The Palace Letters that Whitlam contacted Buckingham Palace to briefly encourage their persuasion of Kerr to reinstate a Whitlam government, Whitlam was otherwise the constitutionalist. He called for rage, but rage to be expressed at the ballot box, and not the barricade.

So many of our traditions and conventions rest on having people of character in office. What would have happened if Whitlam had no such integrity? In an age where ministerial responsibility and political indiscretion carry less responsibility than they once did, have we forgone character, integrity, and virtue in our political representatives?

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