House debates

Monday, 28 November 2016

Private Members' Business

Dismissal

11:02 am

Photo of Scott BuchholzScott Buchholz (Wright, Liberal Party) Share this | | Hansard source

Before calling the member for Bruce, I remind the member of standing order 88.

Photo of Julian HillJulian Hill (Bruce, Australian Labor Party) Share this | | Hansard source

I will be entirely respectful in relation to the appropriate address to the Queen. I move:

That this House:

(1) notes that:

(a) there is a current controversy pertaining to the so called 'palace letters' between the then Governor-General Sir John Kerr and Her Majesty The Queen in the months leading up to the dismissal of the Whitlam Government; and

(b) this correspondence has been declared 'personal' and therefore secret at 'Her Majesty the Queen's instructions';

(2) acknowledges that:

(a) these letters are a matter of our national history which should be made available to the Australian people;

(b) regardless of the merits or otherwise of the dismissal, Australians deserve to know the extent to which The Queen involved herself in the sacking of an elected Australian Government; and

(c) the very notion of 'personal' letters between the Monarch and the Governor-General offends all concepts of transparency and democracy that we hold dear; and

(3) call on the Australian Government to take steps to have the documents released.

I am pleased to move this motion regarding the so-called palace letters, which remain hidden from the Australian people. It calls upon the government to take immediate steps to have these documents, which belong to the Australian people, released. It is an intriguing affair, and I know it may seem less relevant than many of the important debates that confront our nation—the government's lack of plan for jobs, economic mismanagement, growing inequality and so on—but I do believe that these issues are also important and worthy of this 20 minutes of debate.

What are these documents, and why are they not being released? The letters are between the then Governor-General and the Queen in the months leading up to the dismissal of the Whitlam government. We do not actually know how many letters there are, although informed speculation suggests there are dozens. Ordinarily, we would not even be having this debate, because they would simply be released as a matter of course through the normal FOI or Archives Act procedures. These mechanisms do not exclude Government House, but these letters have mysteriously been marked 'personal', and therefore secret, at Her Majesty's instructions; hence the ordinary procedures are not working, and this veil of undemocratic secrecy has descended.

We understand that the final word on whether Australians will ever see these papers remains with the Queen's private secretary and the Governor-General's official secretary, even after 2027. In my view, this is outrageous and illogical, as dispatches to the Queen are part of the Governor-General's duty. Indeed, Sir John Kerr made that clear in his book Matters for Judgement. So how on earth can they now be marked 'personal'? They should be available like other important government records.

But why does it matter? Firstly, they are of great historical importance, and they are Australian documents—one of the few remaining missing pieces that relate to the greatest constitutional crisis our country has known. They may well provide the smoking gun as to how much the palace knew of Sir John Kerr's intentions to sack a democratically elected government. Whatever you think of the Dismissal, and there are a range of views, Australians do have the right to know the full story. It has been a bitter and abiding controversy for decades—to quote Professor Jenny Hocking, 'always with the lingering sense that there was more to be found'. It has taken decades to find out many of the basic facts, in large part due to the diligent work over many years of Jenny Hocking. Sir John Kerr, at the time and for years afterwards, provided a misleading and deceptive public account arguing that his dismissal of an elected government was necessary to break a political deadlock. Yet we now know that he was considering the possibility of dismissing the government for months and that he had certainly decided to do so some days earlier, apparently fearful for his own job.

Secondly, they raise important issues about our democracy, constitution and sovereignty. The defining feature of this, our parliamentary democracy, is that the party that commands a majority in the House of Representatives shall form the government. This was repudiated in 1975. The dismissal of an elected government is no small thing and history can repeat itself. So it is important that, even 40 years on, we eventually gain a full understanding of what happened. I believe that this raises genuine issues about our residual relationship with the Crown. Are we really a sovereign nation if we cannot access our own national records, just down the road in the National Archives, without the permission of 'a foreign queen'—those were the Prime Minister's words.

Finally, this is a matter of principle because this curious case breaks principle and practice in regard to the release of government documents. Cabinet documents will soon be released just 20 years after they were created, and there is no basis for these documents to be locked away. So how can they be released? We should not be having this discussion—but we are. The courts are one possible way. There is a current Federal Court case, on which I will not comment. I commend Professor Jenny Hocking, who has mounted this case on her own initiative and at considerable personal risk. But it should not be left up to a researcher.

It has been reported that, in November last year, the Prime Minister said he would make a formal approach to the Queen to ask her to release what are our national records. I have heard no more of that and I do not know whether it has happened. In any event, that is not good enough. I call on the government to take firm action now and advise the Queen formally to just release these documents immediately, understanding that she is required to act on such advice. Or so we are told; if not, then that is a shocking revelation about our system of government. A one-off request does nothing to ensure that similar documents are not hidden again. So we may need to review legislation and arrangements to stop this from happening. In summary, I believe this is an important matter of historical record. These are Australian documents. What is there to hide? Why not simply release them? They do raise important issues and it breaks the general principle that government documents are released—and Government House is not exempt from this legislation.

Photo of Scott BuchholzScott Buchholz (Wright, Liberal Party) Share this | | Hansard source

Is the motion seconded?

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | | Hansard source

I second the motion.

11:07 am

Photo of Julian LeeserJulian Leeser (Berowra, Liberal Party) Share this | | Hansard source

I thank my friend the member for Bruce for this particular motion but I have to say I disagree with it. It underscores Labor's enduring obsession with Sir John Kerr, an obsession that never really died. That is really what is at the heart of the motion today. It is understandable that there is significant public interest in these documents. These documents will be released at some point in the future, but when they are released is quite properly a matter for Her Majesty the Queen and the Governor-General. I find it ironic that we get this motion from a political party that established special legislation in the case of the parliamentary committee of inquiry into the conduct of a judge. That was the Murphy papers. It was an inquiry relating to whether former High Court Justice Lionel Murphy had indeed met the test under section 72 of the Constitution that proved misbehaviour. That particular set of documents was sealed for 30 years and has only just been released. The full set of those documents is still not in the hands of the public. Instead, we have a motion like this one, which is looking at documents which in the ordinary course of events will eventually be released. But now is not necessarily the time. As the member for Bruce said, this matter is the subject of Federal Court proceedings at the moment. I think it is premature of the House to have this motion at a time when those proceedings are still pending.

One of the things with the Labor Party's Kerr obsession is that they hounded him from office, they refused to attend functions with him while he was there, they encouraged protesters to 'maintain their rage' against him, they hounded him—and now there is this, beyond the grave. When does the obsession stop? The truth is that one of the biggest electoral defeats for the Labor Party occurred after the 1975 dismissal. The Australian people had their say. Sir John Kerr's duty in that election was to resolve a political and constitutional crisis by letting Australian have their say.

I think there is an assumption on the other side of the House that statements in these papers may well vindicate a view that Sir John Kerr acted improperly. I am not sure that it will. Opposition members should not assume that. It is clear from Sir John Kerr's unpublished book The Triumph of the Constitution that he himself wanted his correspondence to eventually be released. My successor as Executive Director of the Menzies Research Centre, Professor Don Markwell, who is an expert in this area, wrote in his recent book TheConstitutional Conventions and the Headship of State: Australian Experience 2016, on page 146 in reference to The Triumph of the Constitution:

It is clear that Sir John Kerr wished the correspondence with Buckingham Palace made public at an appropriate time ... The clear implication of what he writes is that this will show that version of events which he record in—

his book—

Matters for Judgement was what he recorded at the time of events in reports to the Queen.

So the eventual publication of this correspondence might not actually give members opposite what they are looking for.

But there is a broader principle here, which is the principle that correspondence between the sovereign and the Governor-General is of such a high level that it would deal with the most important, most secret matters, of state, and you want to have a free and frank exchange between the sovereign and her representative here in order that both her representative can get counsel and the sovereign can be fully informed about Australian matters. I do not have any doubt that what the Queen, or the Queen's Private Secretary, wrote at the time, on 17 November 1975, to the Speaker of the House of Representatives remains true, and that is:

As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and the Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.

We have a fairly clear statement that the Queen remained out of these matters, that these were always matters for her Australian representative to deal with, and that is exactly what occurred here.

One of the other great myths about 1975 is that the blocking of supply by the Fraser opposition was somehow completely out of whack with what had occurred previously in the Australian parliament. There were 170 occasions during the life of the Gorton government where the Labor opposition in the Senate sought to block supply. Mr Whitlam and Senator Murphy, as he then was, both were architects of those occasions. I oppose the motion and hope it is defeated.

11:12 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | | Hansard source

Transparency and probity have not been the hallmarks of the Abbott-Turnbull government, with failures from tax transparency to the refusal to release the Attorney-General's diary, marking the Abbott-Turnbull years like ink blots on a parchment of otherwise inconspicuous and subpar governance. The Attorney-General failing to support the freedom of information laws that he is in fact responsible for overseeing was an unedifying spectacle but one that Australians are now used to seeing under this government. Despite this government's scant regard for transparency, I speak today to call on the Prime Minister to take action to require the National Archives to release the so-called palace letters—the letters between the Queen and the then Governor-General Sir John Kerr regarding the dismissal of the Whitlam government.

It is farcical that some 41 years after the Dismissal the full facts of the event are not known. Indeed, it is a gross disservice to the history of our great country that such a central event in Australian political history has been hidden from the public eye, and the contribution to this debate that we have just heard from the member for Berowra in fact demonstrates the point. He was prepared to engage in yet further speculation and then say, 'I don't know about the events that these letters are concerned with.' The Australian public deserves to know from these letters and from every other document relevant to this matter exactly what occurred.

In 2005, 30 years after the Dismissal, the National Archives of Australia released Sir John Kerr's notes, journals, reflections and letters regarding the Dismissal. These pieces of correspondence revealed, or should I say exposed, the collusion of Sir John Kerr with Malcolm Fraser to dismiss the Whitlam government. We learned a lot from the release of these documents 30 years after they were written, but the palace letters, the central part of the puzzle, remain unreleased.

The reasons that the letters between Sir John Kerr and Her Majesty Queen Elizabeth were classified as 'personal' is unclear, to say the least. To my mind, it is a ludicrous suggestion that they should be described as 'personal'. Queen Elizabeth II was and is the monarch of Australia. Sir John Kerr was her representative in Australia. The letters between the two were written entirely because of their respective positions. They were not inviting each other to afternoon tea. The relationship between Queen Elizabeth and Sir John Kerr was a governmental and professional one—one befitting the relationship between the Queen and the Governor-General. If Sir John Kerr had not been the Governor-General, these letters would not have been written. They were written to discuss a matter of governance—namely, whether the Governor-General would dismiss the democratically elected government of Gough Whitlam.

The suppression of the palace letters is a complex affair. As they are still classified as 'personal letters', they are not considered to be Commonwealth records and accordingly do not fall under the Archives Act, meaning that their suppression cannot be challenged through the Administrative Appeals Tribunal, as could occur with other records belonging to the Archives, but instead only through the Federal Court.

I acknowledge the work of Professor Jenny Hocking of Monash University, who has launched a legal action against the National Archives for the release of the palace letters. Professor Hocking's action supports the great tradition of transparency in this country, and she is owed a debt of gratitude for her commitment to removing ambiguity and ensuring accuracy of Australian history. The palace letters are a piece of Australian history that is far too important not to be released. Any action to suppress these letters, whether through inaction or through direct opposition, is a hit on the principles of open access and transparency that all governments should support.

I understand that the Prime Minister has proposed a formal approach to the Queen requesting her approval to release our country's own records. We live under a passive monarchy, where the rule of law and the principles of transparency and probity are not run past the monarch for her approval but established in this parliament in which I speak today and upheld in the courts of Australia. This is not a matter of whether you are a republican or a monarchist; it is a matter of the accuracy of one of the most important events in modern Australian history. The position of the Governor-General is one of public interest. Letters between the Queen and her representative, the Governor-General, are by definition governmental and professional and should be treated as such by the Archives Act. I know that the Prime Minister is a keen follower of our national history, and I call on him to support Australia's great egalitarian tradition and take the appropriate steps to ensure that the National Archives release these documents.

Photo of Scott BuchholzScott Buchholz (Wright, Liberal Party) Share this | | Hansard source

Given that there are no further speakers, debate is now adjourned and the resumption of the debate will be made an order of the day for the next sitting day.