Diarist-at-large Richard Ackland flys about the nation. By Richard Ackland.

Dear John letters

A satisfying outburst of contention between the Kelly–Bramston view of the Dismissal letters between the Queen and Kerr and that of Sydney barrister and former Canberra staffer Tom Brennan.

The scribes at The Catholic Boys Daily worked themselves into a lather because they were blocked by the national archives from seeing Sir John Kerr’s plotting 1975 correspondence with Buck House.

Senior sage Paul Kelly wrote that “we do not own our history” because the former GG’s missives to and from the Queen and her staff are under lock and key – due to “defective disclosure laws, palace policy, our official timidity and arrangements under the monarchical system”.

These documents would unlock “pivotal” information about the relationship between Kerr and his boss, HM.

Enter Tom Brennan from the 13th-floor Selborne chambers in Phillip Street, former Canberra public servant and senior ministerial staffer.

In a blog, posted on his chambers website, he says Kelly and co are talking nonsense. The amended Archives Act, which finally succeeded in being passed in 1983, requires that all records of the official establishment of the GG be transferred to the archives and be made available under the open access provisions.

Under the act there is no recognition of the British practice of withholding royal records for 60 years.

Kelly and Bramston have conscripted Malcolm Turnbull to approach the palace through GG Cossie Cosgrove to get the documents out in the open.

Yet, Brennan says, their release is already required under Australian law. “We Australians do not need to ask the British monarch for her consent to our accessing that history: our parliament secured that for us in 1983.”

The people at the national archives seem to be insisting that the letters are “personal” and not official – a weird classification.

Brennan simply says that decision can be tested and corrected by judicial review in the courts or merits review in the Administrative Appeals Tribunal.

1 . Kerr’s vert

On another crucial point the Kelly–Bramston book, The Dismissal: In the Queen’s Name, is at loggerheads with Professor Jenny Hocking’s latest work, The Dismissal Dossier: Everything you were never meant to know about November 1975.

The two News Corp reptiles contend that there is no evidence of prior arrangements between Kerr and what is collectively referred to as “the palace” on the dismissal of the Whitlam government.

No evidence? Hocking points to some quite juicy evidence that the palace people were in it up to their tiaras and were onside should Whitlam move to sack Kerr.

In the tosspot’s own tangled notes, Kerr writes that he knew “what the palace view was as to what the Queen’s ultimate reaction to the problem would have to be”. The Queen’s secretary, Sir Martin Charteris, told Kerr that if Whitlam tried to get in first with advice to sack the GG before Kerr had a chance to sack the government, then HM would “try to delay things” for as long as possible.

There were also exchanges between Kerr and Bonny Prince Charlie at the PNG independence celebrations in the spring of 1975, where the possible dismissal of the PM was raised.

Kerr had an “unqualified green light” from the monarch to sack the Australian government.

The long-maintained fiction that the palace knew nothing in advance is now dead, as shown in Kerr’s own papers. Why aren’t Peter FitzSimons’ army of Republicans marching in the streets, getting a few heads on pikes?

Oddly, lawyers who you’d expect would know better, sent out tweets on this topic saying that it’s a “Dead horse. Flogged”. There was an election; Fraser won. Let it go.

The slow but sure uncovering of a conspiracy between the monarch, the governor-general, members of the High Court and the top dogs of the Liberal Party to subvert constitutional arrangements is a dead horse that is neighing.

2 . Arbitrary and delicious

There was Gadfly on Tuesday night at a huge banquet held at Sydney’s Museum of Contemporary Art in honour of the centenary of the Chartered Institute of Arbitrators.

There were lawyers and judges by the mile. If the jihadists had bombed the place the justice and arbitral system of the nation would have ground to a halt.

High Court CJ Robert French gave the after-dinner address before dinner, and, as it was remarked, it was refreshing to have a senior judicial officer give a dinner speech without being attended by applications for recusal on grounds of apprehended bias.

ABC chairman Spiggsy Spigelman was on my table with his author wife, Alice. Stoically, he resisted my blandishments for the name of Aunty’s new managing director. I was so close that with a few more glasses of Châteauneuf-du-Pape I’m sure I would have clinched it.

These events are never entirely comfortable for Gadfly. A good third of the room would have been aggrieved by some journalistic slight or insult over the years, so amid the merriment I got plenty of the evil-eye treatment.

One lawyer did tell me that during the Abbott era the custom in the senior ranks of the profession, among those anxious for a federal court appointment, was to wear blue ties as frequently as possible, in the hope of being favourably noticed. 

3 . Cardinal rules 

Meanwhile, the plaintiff lawyers association, the Australian Lawyers Alliance, alleges that the Roman Catholic Church is not ruling out the continued use of the Ellis defence.

This is the defence based on a 2007 NSW Court of Appeal decision that said the RC church cannot be sued for compensation by victims of priestly sexual abuse, because it does not exist
as a legal entity.

Later, the Catholic archbishop of Sydney, Anthony Fisher, said that the “agreed position” of the bishops is that “we will not be seeking to protect our assets by avoiding responsibility in these matters”.

However, the current bishop of Ballarat, Paul Bird, is not ruling out use of the Ellis defence in claims made against the church. The victims are now having to sue the former bishop Ronald Mulkearns personally.

As Cardinal George Pell heads back to the royal commission witness box, his lawyers are gearing up to cross-examine victims who allege he knew what Ballarat priests were doing.

The commission had already been critical of Pell’s lawyers in the John Ellis case itself, where the plaintiff was attacked in cross-examination for days on end, even though the church knew he had an arguable case.

The church’s Truth, Justice and Healing Council now has a no-cross-examination policy, which is observed by its lawyers from Gilbert and Tobin. But that policy doesn’t apply to Pell.

The royal commission has also called on King’s School old boys to come forward with stories of abuse at the academy.

2GB listeners were fully expecting the school’s most famous ex-teacher, Alan Jones, to do his bit to assist the commission’s CEO, Philip Reed, in locating abuse survivors.

Were the broadcaster’s lines thrown open with an appeal for old chaps to come forward and tell their stories to the royal commission? Not that we heard.

Instead, Alan was giving away some “lovely André Rieu music”.

4 . Bottle bonds

What is it with the dye pot and the dyed-in-the-wool Liberal Party hard right-wingers?

There’s Kevin Andrews gone mad with the Grecian 2000, Tony Abbott has been applying a russet hair product for ages, and I’m increasingly suspicious about Cory Bernardi’s lustrous follicles.

There’s not much point in Young Otto Abetz doing anything to his hair, because his scalp has ultimately triumphed.

However, Tasmanians are rejoicing that strongman Otto has been preselected to head the Liberal Party senate ticket and win another six-year term in parliament.

The ticket includes the senate president, the invisible Stephen Parry, and one of Premier Will Hodgman’s office orderlies, Jonathan Duniam.

Otto says the ticket is well placed to attract the vote of the under-35s.

5 . Snag-waving ceremony

Why is it that at international conferences, such as the recent ASEAN gabfest, all the leaders are required to dress up in some facsimile of the national costume and hold hands at the farewell ceremony?

There they were in Kuala Lumpur in what looked like orange caftans, grinning sheepishly and waving flags.

PM Turnbull looked particularly uncomfortable. Next time Australia hosts one of these gatherings of global leaders they should all be made to get into Stubbies, thongs, singlets and corked hats, witlessly waving BBQ tongs. That might put an end to these embarrassing ceremonial spectacles.


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This article was first published in the print edition of The Saturday Paper on November 28, 2015 as "Gadfly: Dear John letters".

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Richard Ackland is The Saturday Paper’s legal affairs editor. He publishes

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