The Whitlam Dismissal, by Those Who Were There

In his latest book, Fact and Fiction, Nicholas Hasluck draws upon the diaries he kept while serving as a judge of the Supreme Court of Western Australia. These diaries provide not only a picture of judicial life but also an account of writing Dismissal, his novel about the final days of the Whitlam government.

Nicholas Hasluck’s books about judicial life, Bench and Book and Fact and Fiction, are published by Arcadia/Australian Scholarly Publishing; his novel Dismissal by HarperCollins.

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AS MY years on the bench went by I became increasingly interested in one of the great constitutional crises of Australian political history: the dismissal of the Whitlam government in 1975. My father had worked with Whitlam and in the course of my judicial round, mostly at conferences or in casual conversations, I had talked to a number of people involved in the main events. The notes I made while planning a work of fiction about the crisis go to the heart of the story, a drama reflecting the parliamentary roundabout with all its flaws and strengths and dynamic energies.

This account of Whitlam’s ousting appears in the latest Quadrant.
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Victory at the December 1972 election led to Gough Whitlam becoming the first Labor Prime Minister for twenty-three years. He was sworn in by my father, Sir Paul Hasluck, who at that time was serving as Governor-General of the Commonwealth of Australia. When my father’s term came to an end in July 1974, Whitlam chose Sir John Kerr, a former Chief Justice of the Supreme Court of New South Wales, to assume the vice-regal role.

An appraisal of the Whitlam government’s record can be left to historians. It will be enough for present purposes to say that by the middle of 1975, the Whitlam government was immersed in various controversies including the so-called “loans affair”, an ill-fated attempt led by Rex Connor, Whitlam’s Minister for Minerals and Energy, to raise massive borrowings from overseas through the agency of a mysterious Pakistani businessman called Tirath Khemlani. The furore came to a head in mid-October, when the new leader of the Liberal Party, Malcolm Fraser, as Leader of the Opposition, used his numbers in the Senate to block the passage of appropriation bills required to fund the workings of government. The blocking of supply was necessary, Fraser contended, because the conduct of the Whitlam government was reprehensible.

According to an opinion published by an eminent lawyer on Fraser’s front bench, Robert Ellicott, if a government couldn’t provide supply, and the Prime Minister was refusing to call an election, it would be within the Governor-General’s reserve power—and it would be his duty—to dismiss the Prime Minister and his ministers, even though, as in this case, they had a majority in the House of Representatives where the fate of a government is usually decided.

Whitlam’s determination to soldier on, his insistence that the supply bills be passed by the Senate, led to a political stalemate. This continued to the end of October 1975, and into November. Whitlam was of the view that the Governor-General could act only on advice provided to him by the Prime Minister. Advice of the kind contemplated by Ellicott’s opinion would not be given because, in Whitlam’s view, his Liberal opponents eventually would back down. When that happened, the Labor supply bills would be passed, bringing the crisis to an end.

The risk of government funds running out worsened. Sir John Kerr sought advice from Sir Garfield Barwick (left), a former Liberal Attorney-General who was by then Chief Justice of the High Court. Barwick’s privately communicated advice to the Governor-General was along the lines of the Ellicott opinion. According to Barwick, if the Prime Minister’s commission was withdrawn:

Your Excellency’s constitutional authority and duty would be to invite the Leader of the Opposition, if he can undertake to secure supply, to form a caretaker government pending a general election, whether of the House of Representatives or both Houses of Parliament, as that government may advise.

On November 11, 1975, in the course of a short meeting in his office at Government House, Sir John Kerr, having ascertained that Whitlam still couldn’t secure passage of the supply bills, dismissed the Prime Minister. He handed him a letter reflecting the advice received from Barwick. Next, the Governor-General commissioned Fraser to form a caretaker government on the understanding that the incoming Prime Minister could obtain supply. Fraser managed to achieve this that afternoon, with the adroit assistance of Reg Withers (right), leader of the Liberal team in the Senate, largely because Labor senators were left in the dark as to what had happened at Government House. Unaware that Whitlam had just been sacked, they voted, yet again, in favour of passing the supply bills, although it was now contrary to their political interests to do so.

Fraser was then able to advise Sir John Kerr to dissolve both houses of Parliament on the basis that a general election would be held in December. It would be left to the Australian people as a whole to determine which of the two major parties should be entrusted with the power to govern. Sir John Kerr acted on Fraser’s advice. Without delay, the Official Secretary at Government House, David Smith, on the front steps of Parliament House, in the presence of the media and an agitated throng of onlookers, read aloud a proclamation dissolving both houses of Parliament, a declaration marking the end of the Whitlam government.

This historic event was rendered additionally memorable by the presence of Gough Whitlam right behind David Smith. The deposed Prime Minister was heard to denounce Sir John Kerr, the author of his downfall: “Well may we say God save the Queen—because nothing will save the Governor-General.” In due course, at the ensuing election in December, the Fraser government secured a decisive victory at the polls. Sir John Kerr continued in office as Governor-General for another year or so, albeit as a target of controversy and abuse.

This is not the place to canvass the rights and wrongs of the Whitlam Dismissal. A good many books have been written about the issues involved in the crisis and there are many divergent opinions as to whether the rules and conventions of the Australian Constitution were infringed. Some of these divergent points of view are reflected in the diary entries included in this book about the process of using fact in writing fiction.


Friday January 25, 2008

By taxi to Riverview on Sydney’s North Shore where I pick up my friend from school days in Canberra, Paul Murphy, until recently a well-known TV interviewer on the ABC and SBS. I’m saddened to see Paul limping towards me on the arm of his wife Kay and with the aid of a walking stick. We drive on to the shopping precinct at Lane Cove and are soon seated at a restaurant table in the mall. I learn that Paul was injured in a car accident a few years ago. The replacement of spinal discs has left him unable to walk easily.

Paul sits at the table, in a red T-shirt, looking frail, with a mane of shoulder-length hair, as he tells one tale after another. He recalls the day Prime Minister Keating rang him up in a white-hot rage. “Don’t bother going to work tomorrow, Murphy. Don’t even think about it. You won’t have a job. You’ll never work again. You’re dead in the water, mate.” Murphy answered this by saying, with as much dignity as he could muster, that it was a pity their relationship had to end on such a sour note. However, he now proposed to say goodbye and hang up. The ensuing silence was eventually filled by Keating’s robust rejoinder. “No need to get uptight, mate. I was clearing the air. Just clearing the air.”

In the course of these anecdotes, we turn to the Whitlam dismissal. Paul Murphy (left) was in the London office of the ABC at the time, having just left the press gallery in Canberra. When he heard a BBC report that the Australian Prime Minister had been sacked, he immediately rang up the BBC to say that they had the story wrong. It could only be that Whitlam had sacked the Governor-General. He was firmly put down by an upper-class BBC type who gleefully quoted the latest piece from Reuters confirming that Kerr had in fact sacked Whitlam.

All of this prompts me to ask how it came about that most of the journalists in the parliamentary press gallery and elsewhere seemed to be so utterly unprepared for the possibility of Kerr sacking Whitlam. After using their majority in the Senate to block Labor’s supply bills, the Liberal Party had been making it clear for many weeks that sacking the PM was the only solution to the crisis. But Whitlam and his Labor friends in the media seemed to be totally surprised. They were speechless with rage when Kerr acted decisively, and it seems they were left not quite knowing what to say or do when it happened. Paul can’t explain the phenomenon. Most of the press had assumed the Liberal side would crumble and pass the supply bills. They had simply failed to examine or even countenance the alternative.

An excursion in the evening takes me to the home of my other old friend from schooldays in Canberra, Bob Sorby. We chat about the Whitlam dismissal, for Bob was a staffer to Rex Connor at that time, the minister closest to the unconventional Khemlani loan arrangements. Sorby, now a District Court judge, is willing to recall his earlier years as a journalist and political staffer, the days and nights he spent with Connor waiting for cables from Khemlani that never came. Bob’s time with Bob Hawke in later years, he tells me, nearly came to an abrupt end when he wouldn’t place racing bets for his boss. Annoyed by this, the PM flicked the form guide to someone else. But Hawke came to Sorby’s wedding some years later, so he must have forgiven his staffer’s inexplicable stance.


Wednesday October 22, 2008

To East Block adjoining the Old Parliament House in Canberra for an exhibition put on by the National Archives. This includes a shelf containing Harold Holt’s briefcase. Disprin pills found in the briefcase suggest the PM may have been in poor health prior to his ill-fated disappearance in the surf at Cheviot Beach in December 1967. The exhibition also includes a copy of Gough Whitlam’s handwritten censure motion, jotted down hastily at midday on November 11, 1975, soon after he was dismissed by Sir John Kerr:

That this House declares that it has confidence in the Whitlam Government and that this House informs Her Majesty the Queen that, if His Excellency the Governor-General purports to commission the honourable member for Wannon as Prime Minister, the House does not have confidence in him or in any government he forms.

While drafting this motion over lunch at the Lodge, Whitlam was unaware that Malcolm Fraser, the Liberal Party member for Wannon, had already been commissioned as Prime Minister, on the basis that he would use his party’s majority in the Senate to approve the previously stalled supply bill and advise the Governor-General to dissolve both Houses of Parliament. Whitlam’s censure motion was passed, and presented to the Governor-General by the Speaker of the House, but by then it was too late. A proclamation dissolving Parliament had been read aloud on the steps of Parliament House. The country was on its way to a general election.

Today, thirty-three years after these events, I have lunch at the Commonwealth Club with a friend from Oxford days, Peter Lloyd, a former Australian diplomat. With the Dismissal controversy still in mind, I quiz him about attitudes in the Department of Foreign Affairs at that time concerning Indonesia’s prospective takeover of East Timor. He confirms that an independent state of East Timor wasn’t thought to be viable. Whitlam’s government was essentially following the departmental line in condoning the Indonesian occupation of East Timor in December 1975. The thought was that Indonesia had to be placated having regard to the communist tendencies of Fretilin, who were seeking to overthrow the East Timor government.


Friday January 16, 2009

I join a group for lunch. Those at the table include Vic Garland, a former MHR for Curtin, who became a minister in the Fraser government and went on to serve as the Australian High Commissioner in London. He has only just returned to Perth after an absence of twenty-five years.

I take this opportunity to quiz him about the dismissal of the Whitlam government. Is there any merit in what has always been the conventional wisdom on the Labor side of politics, that if Kerr hadn’t “intervened” the Liberal senators would have backed down? Would they have passed the supply bills that had triggered the constitutional crisis? Was it essentially a “political” situation, and with a political solution at hand? Should Sir John Kerr have dismissed Gough Whitlam, a Prime Minister supported by a majority of members in the Lower House?

Garland (right) ponders this for a while, but says eventually that in his estimation the answer to what might have happened was then and still is simply “unknowable”. No one knew how it would end but there were no obvious signs of dissension among senators on the Liberal side. He was generally of the view that Whitlam’s political judgment was variable. All of this prompts me to ask how it came about that most of the journalists in the parliamentary press gallery and elsewhere seemed to be so utterly unprepared for the possibility of Kerr sacking Whitlam. , and by the end of 1975, known as a “great debater”, he was affected by a degree of hubris. He ceased to watch closely what was happening around him.

Some weeks before the Dismissal, for example, Garland and other parliamentarians had been out at the Canberra Airport to farewell Princess Margaret. The flight was delayed due to rain, so the official party retreated to a hangar. Garland noticed Kerr and Whitlam in conversation nearby. The Prime Minister seemed to be haranguing the Governor-General with words and gestures, as if explaining some point about the Constitution to a novice. Kerr, a former Chief Justice of New South Wales, had stood there impassively, but his body language suggested that he was appraising Whitlam sceptically, with scant attention to what he was saying. Whitlam seemed completely unaware of this.

On Monday November 10, 1975, Garland and other Liberals were at a function at the Lakeside Hotel. At that time Garland didn’t have any inkling as to how the crisis would end, or as to whether the next day would turn out to be the crucial moment. However, he could still recall, quite vividly, standing outside the hotel with a group of Liberals as they waited for their cars to arrive. His colleague, Senator Bob Cotton, said: “I have a feeling something is about to happen to resolve the crisis.” He didn’t seem to be speaking with any specific knowledge, but simply articulating a feeling “in his bones”. Neither Garland nor any of the other Liberals contested what had just been said, and none of them ventured any new information, other than what was widely known. There was no talk of backing down or passing the supply bills.

Garland was in Malcom Fraser’s office on one occasion at this time when Fraser took a phone call from the Governor-General. They seemed to be having a discussion about the crisis in general terms. This may have been on Tuesday November 11, the morning of the Dismissal, but Garland couldn’t be quite sure. There was a meeting of the Shadow Cabinet that morning. There was simply a belief that the Liberal leaders, Fraser and Phillip Lynch, knew what they were doing in continuing to block supply until Whitlam would be forced to resign, or be dismissed, due to his inability to govern.

Garland’s first knowledge of the Dismissal was when he returned to the Opposition front bench shortly before 2 p.m. on the Tuesday. An arm’s length away from the Clerk of the House of Representatives, he embarked upon some casual small talk as members around him were taking their seats. When he remarked, “It’s cold in here,” the Clerk made a puzzling reply, to the effect that it would soon be even colder “when the House shuts down”. Garland pressed him and was then told that Whitlam had been dismissed.

Still puzzled by this reply, Garland had taken his place on the Opposition front bench as the pre-lunch debate was re-opened, with Frank Crean (left) on the Labor side renewing his attack on the Liberals. To the best of Garland’s recollection, Crean made no reference to any dismissal of the Prime Minister or other action by the Governor-General, but simply carried on with what was obviously a prepared speech about the crisis. This was a clear indication that senior figures on the Labor side were still unaware of what had taken place at Government House an hour or so earlier. At the end of Crean’s speech, Malcolm Fraser stood up to announce that he had been appointed Prime Minister.

This bombshell, according to Garland, gave rise to howls of outrage. Whitlam’s Attorney-General, Kep Enderby, jumped up and yelled out, “It’s a revolution!” and stalked out of the chamber, repeating what he had just said to those nearby. On the whole, however, Fraser’s announcement was treated like other parliamentary business. This led to Whitlam, using his majority on the Labor side, to force through a motion of no confidence in Fraser’s newly created government.

Essentially, the Labor side seemed to accept that what had happened was effective. Later, word reached Garland and others that the Speaker of the House, Gordon Scholes, went out to Government House with some sort of instruction to protest, but Garland had only a hazy recollection as to what exactly Scholes was seeking to achieve. Garland, as an Opposition front-bencher, was of the view that once Fraser had made his announcement, in a very confident tone, it looked as though the crisis had run its course. The Governor-General had appointed the Leader of the Opposition as a caretaker Prime Minister, dissolved both houses of Parliament, and there would be a general election at which the rights and wrongs of the political matters in issue could be determined by the Australian people.

Shortly after Fraser’s announcement, Garland attended a press conference given by the new Prime Minister. This was held in an office on the Senate side of the parliamentary premises, as the only room available. The journalists present were obviously astonished by what had occurred and totally partisan in their questioning and denunciations of Fraser, abandoning any pretence of neutrality. This seemed surprisingly unprofessional, and Garland couldn’t help wondering whether certain of them were beholden to the Whitlam government in various ways.

There were a good many people moving about in King’s Hall at this time, but the only real signs of anger and disturbance occurred on the front steps of Parliament House. Garland viewed the scene with a number of Coalition members from an office overlooking the steps. The crowd was very angry. Garland and those around him “wondered what was going to occur” as the Official Secretary from Government House, David Smith, appeared and read aloud the proclamation dissolving Parliament. The mood was ugly but, in the end, it didn’t degenerate into violence or an insurrection spilling back into the parliamentary premises. Whitlam addressed the crowd, fiercely and at some length, but still seemed stunned by what had occurred. Neither he nor anyone on his side seemed to have been prepared for it.

Apart from Whitlam’s motion of no confidence in the parliamentary chamber, Garland couldn’t recall any suggestion (or even a degree of apprehension on the Liberal side) that some counter-move might be afoot which would avert the election foreshadowed by David Smith’s reading of the proclamation. It is a matter of history that at the general election held a month later in December, Fraser’s Liberals won a significant victory. But rancour surrounding the Dismissal lingered, and has lingered to this day.


Friday February 20, 2009

Late in the afternoon I call in on Fred Chaney to talk about the Whitlam Dismissal, mentioning that I have in mind to write about it. In November 1975 Fred was the Liberal Whip, having been elected to the Senate from Western Australia in the double dissolution election of May 1974. He subscribed to the general belief on his side that the Whitlam government was chaotic and disgraced by the irregularities of the Khemlani loans affair, and that it was therefore both appropriate and legitimate to use the Senate’s power to block the budget reflected in the government’s supply bills. He never had any doubts on that score. However, the fact was that support for the Liberal stance within the community seemed to be scant. He received only one letter of support (from an old friend) throughout the crisis. This meant, as time went by, that he was obliged to question the political wisdom of the Liberal stance. Nonetheless, Fred was generally supportive of Fraser’s leadership and never seriously questioned his judgment as the crisis ran on.

In mid-October when the supply bills were blocked, the assumption was, as had happened in May 1974, that Whitlam would be obliged to call a general election for both houses. However, when he refused to advise the Governor-General accordingly (recognising that the opinion polls were against Labor), there was a general mood of uncertainty as to how the crisis would be resolved. Fred (right) was aware of disaffection among certain Liberal senators from South Australia, and a possibility that Alan Missen from Melbourne would cross the floor, but a specific threat or ultimatum to that effect was never made.

Early on, a widely-respected QC on the Liberal side, Bob Ellicott, had published a legal opinion to the effect that in the case of a government that couldn’t fund its program, the Governor-General had a duty to intervene—but it seemed that even Ellicott was in a state of doubt as to how things would turn out. In the last week of the crisis, Fred went for a walk around Parliament House one evening with Ellicott in which the latter expressed this view. He clearly wasn’t privy to any advance information about the possibility of a dismissal in coming days.

At some stage before the actual dismissal, Fred recalled, there was a moment at a party meeting when Fraser seemed to speak with a special confidence that the Liberal stance would prevail. At the time, Fred took this to be simply a means of rallying the party room and keeping support solid. However, in retrospect, his feeling is that Fraser (below on Nov 11) had an inkling as to what would happen. Fred could not recall exactly when this meeting was, and seemed to accept that it may well have been on the morning of November 11, 1975.

At midday on the day in question, Fred was in his office when he received a call, possibly from Reg Withers, summoning him to the leader’s room. Fraser wasn’t there but Fred was told by other senior Liberals in attendance that Whitlam had just been sacked, Fraser had been appointed Prime Minister, and in the short time remaining in the luncheon adjournment Fred, as Whip, was to contact as many Liberal senators as possible to advise them that the Liberals would now be voting to pass the supply bills, for Fraser had assured the Governor-General he could achieve supply.

Fred couldn’t recall whether all senators from both parties were present when the Senate convened, but the supply bills were certainly approved in a matter of minutes. It seemed to be patently obvious that neither the Labor leader in the Senate, Ken Wriedt, nor the Labor-appointed President of the Senate, were aware that Whitlam had been dismissed, and that it now suited the Liberal side to pass the supply bills. The outcome they needed to satisfy the Governor-General’s requirements had now been achieved.

Fred couldn’t recall any particular activity in King’s Hall. Public servants and others gathered quickly on the front steps of Parliament outside as the news spread. It seemed, initially, that their anger was inflamed by a drunken staffer (probably from the Liberal side) who was overheard making some ill-chosen remarks. Fred was in the crowd on the steps with Peter Durack as Whitlam denounced the Governor-General. There was noise and anger, but it didn’t occur to Fred at any stage that things might get out of hand, with windows being smashed or other violence.

As to various circumstances surrounding the crisis, Fred had no recollection of Whitlam’s stance on Indonesian claims to East Timor, or his sacking of the head of ASIS some days before the Dismissal, as a factor in the situation. Fred was generally aware, however, of Whitlam’s view that a state of East Timor would not be viable, a view that could be construed as condoning the Indonesian invasion.


Saturday April 18, 2009

To St Catherine’s College on the UWA campus to attend the fiftieth birthday party for outgoing Pro-Vice-Chancellor Don Markwell. He has completed his task of revising the syllabus at the university and will soon be leaving to take up a new position as Warden of Rhodes House at Oxford.

We are greeted by the guest of honour in a function room overlooking an inner garden courtyard. Joined by the Dean of Law, Bill Ford, we are soon discussing the fact that in Australian law schools these days the teaching of legal history and jurisprudence is virtually non-existent. This surprises me. It is true that the practice of the law in current times depends largely upon the interpretation of statutory instruments, but that in turn depends upon a proper understanding of parliamentary supremacy and related conventions such as the rule of law, the usual subject matter of legal history and jurisprudence.

These thoughts are brought into stark relief when we are joined by Sir William Heseltine. He recounts his involvement in the Whitlam/Kerr constitutional crisis. In his role as private secretary to the Queen in 1975, he was awakened in his London flat by a call from the Official Secretary at Government House in Canberra, David Smith. He was informed, at 2.30 a.m. in London, that the Governor-General, Sir John Kerr (official portrait below), had dismissed the Prime Minister. Heseltine felt it was too late to wake his superior, Martin Charteris, or the Queen herself. So he went back to sleep. Next morning, he found his way to Buckingham Palace at an early hour, to be on hand in case Her Majesty heard about it on the news. Once there, he was greeted by Charteris who had just received a call from Whitlam. “What can I do for you, Prime Minister?” Charteris had inquired. “That’s the point,” the caller explained. “I’m no longer Prime Minister.”

I asked Heseltine whether Whitlam was asking for any action to be taken by the Palace in respect of the sacking, but the answer seemed to be no. Whitlam was simply contacting Charteris as a sympathetic confidant, and possibly to satisfy himself that there had been no collusion between Buckingham Palace and Government House. Charteris’s obvious lack of knowledge about the matter was apparently enough to satisfy Whitlam that Kerr had acted independently.


Friday July 28, 2009

Sally and I fly to Adelaide to attend the annual conference of the Samuel Griffith Society. The chairman of the society, Sir David Smith, the Official Secretary at Government House in my father’s time, has invited us to join him on the top table. A little later David moves to the lectern to introduce the guest speaker. A faulty microphone results in him being unable to make himself heard. “Perhaps I need a large figure in the background,” he quips, referring to the famous scene on the steps of Parliament House as he read the proclamation dismissing Whitlam. This draws a laugh, and it isn’t long before the problem is rectified.

After the talk I find a moment to chat to David Smith about other days. He leads me to believe that the social program at Government House has fallen off dramatically in recent years. The practice followed in my father’s time in office, of bringing people together at Government House from opposing political parties and from various walks of life, to converse and possibly forge connections across party lines, or to secure backing for new ideas and projects, is no longer a living reality.

I ascertain in the course of our conversation that on November 11, 1975, the day of the Dismissal, David wasn’t accompanied by anyone while being driven from Yarralumla to Parliament House to read the decisive proclamation dissolving both houses of Parliament. He understood that a crowd had gathered at Parliament House but didn’t know what to expect. He had no fear for his own safety.


Friday October 9, 2009

To Melbourne for the annual Judicial Colloquium. Sally and I join the other conferees in a function room on the ground floor of the Windsor Hotel for the opening of the conference by the Victorian Attorney-General, Rob Hulls, a leading figure in the state Labor Party. Dinner in the evening is held in the splendid dining hall of the hotel.

I’m seated next to Terrance Higgins, Chief Justice of the ACT, and soon discover that he was at St Edmund’s College in Canberra back in the 1950s while I was at the Canberra Grammar. He tells me about his early career in the law, including his role as counsel for Whitlam and Rex Connor during the Sankey litigation over the Loans Affair. I understand from what he says that Danny Sankey (left) was essentially a front man for the Liberal Party, but Sankey’s claim of wrongdoing by the Labor government wasn’t commenced until after the sacking of Whitlam.

Higgins is an apologist for Whitlam’s Attorney-General, Lionel Murphy, who was bumped up to the High Court a year or so before the Dismissal. Higgins believes that the Director of Public Prosecutions in New South Wales, Ian Temby, acted unfairly some years later in choosing to prosecute Murphy for judicial misconduct, in allegedly contacting a magistrate with a view to influencing the outcome of certain legal proceedings. Time passes quickly as we debate these matters.


Friday August 27, 2010

John Nethercote calls in for a sandwich lunch in our library. He is across from Canberra to attend the annual Samuel Griffith Society conference. He gives me a paper written by his friend Ian Hancock about the 1967 affair on the misuse of VIP flights and, more importantly, a document described as: Copies of Notes made by the Governor-General (Sir Paul Hasluck) in his personal journal to record conversations with Prime Ministers and Ministers (1972–1974).

The Notes record my father’s suggestions as to who might succeed him as Governor-General. They bear upon Whitlam’s decision to appoint Sir John Kerr. Overall, the Notes reflect a congenial and trusting relationship between Hasluck and Whitlam. An entry in June 1974 (shortly before my father left office) says: “We both expressed our appreciation of the closeness and frankness we had been able to develop.”

Nethercote tells me that in attending at the Archives on December 24, 2005, upon the release of Cabinet and other papers under the thirty-year rule, Whitlam spoke to these Notes and passed them to Nethercote at that time, although officials from the Archives and Government House weren’t pleased by this action.

Inevitably, we begin talking about the Dismissal. I ask what would have happened if Fraser had been unable to secure supply on November 11. Nethercote says that Sir David Smith responded to this very question at the launch of his autobiography, Head of State, a few years ago by saying: “We would have been stuffed.” That is, those at Government House had no Plan B, if Fraser had returned to Government House to say that the Senate had refused to pass the supply bills. In that event, Nethercote surmises, Fraser would probably have persuaded the Governor-General to leave things as they were, on the basis that a double dissolution election was to be called to resolve the deadlock and, in the meantime, supply could be provided pursuant to emergency powers (arguably of a kind exercised in 1915-16 when expenditure was authorised without specific parliamentary approval).

However, there would have had to be some kind of legal opinion to support the legitimacy of this approach, bearing in mind that Fred Wheeler, a formidable head of Treasury, wouldn’t have countenanced unorthodox actions. Nethercote recalls that on November 10 he was with the government Auditor, who seemed to have no inkling that anything extraordinary was about to happen. Government money was “running out” in the sense that parliamentary sanction for further expenditure was about to expire. But money was certainly available if some form of authorisation, sufficient to satisfy the Treasury officials (and possibly the courts at some later stage), could be provided. We go on to have a wide-ranging discussion about Fred Wheeler, Arthur Tange, Len Hewitt and the other leading public service mandarins at that time.

The plot of Dismissal seems consistent with his view of what happened during the crucial days in question—even if my book is essentially a work of fiction. Nethercote is familiar with the Odgers thesis that immediately after the sacking, Whitlam should have sought to rescind the Appropriation Bill in the Lower House and withdrawn it from the Senate. In that event, however, Fraser would probably have stayed in office per the scenario set out above, which would have led to a double dissolution election in any event.

In the evening Sally and I find our way to the Ibis Hotel, where the Samuel Griffith Society conference dinner is to be held. Coincidentally we are seated with the president of the society, Sir David Smith (below, reading the proclamation), so I finish up talking to one of the leading characters in my novel. In the light of this afternoon’s conversation with Nethercote, I seize the opportunity to press him about certain aspects of November 11, 1975.

Smith confirms that there was no Plan B if Fraser failed to secure Supply. However, in his estimation, as Nethercote had intimated, Fraser would probably have found a means of carrying on government until the election was held. It is important to remember, he says, that the supply issue concerned funding for government for the next twelve months or longer and not just for an interim period until an election could be held.

This brings him to another important point. In real terms there was little significance in Kerr failing to meet with the Speaker, Gordon Scholes. The latter could only have conveyed what was already known to Kerr and his staff (by listening to the radio) that Whitlam had put through a “no confidence” vote in the new Fraser government. But this simply meant that in a situation where Labor could not secure Supply, and the Liberals were subject to such a vote, the impasse could only be resolved by an election. As Kerr had already taken steps to ensure an election was to be held, Scholes would be unable to say anything new to change that course.


Saturday August 20, 2011

A review of Dismissal in the book pages of the Saturday Age by Lorien Kaye. She says this:

The Petrov affair and the dismissal of the Whitlam government are two of the most critical events in modern Australian political history and Nicholas Hasluck makes use of these crises to frame his first novel in 10 years, a thriller in which betrayal and uncertainty are ever-present.

As the Petrov affair unfolds, lawyer Roy Temple finds himself facing vague allegations of espionage thanks to his involvement with Communists and his attendance as a staffer to Doc Evatt, leader of the Australian delegation at the San Francisco Conference that founded the United Nations. Also under suspicion are his friends (or are they?) Simon Dacey and Freya Gayle. The cloud of doubt recedes only to threaten again as Whitlam’s days as Prime Minister come to an end. Hasluck seamlessly weaves together truth and fiction. Dismissal has obviously been written by an insider: Canberra-born Hasluck is a Judge and his father, Paul Hasluck, was Governor-General before John Kerr.

As is the case in any good thriller, the truth about who knows what and who can be trusted remains out of reach until the very end. But what Hasluck adds adroitly to this familiar set-up is a sense of a world in which ideals, political beliefs and self-interest are in constant tension.


Saturday August 27, 2011

To the Mercure Hotel in Hobart for the first day of the Samuel Griffith Society annual conference. As we mingle, I chat to former New South Wales Premier Bob Carr. He’s at work on an obituary of Gough Whitlam apparently, which is being prepared in anticipation of the great man’s death. Carr says politely but firmly that in his view my father was unfair to Whitlam in his book The Chance of Politics, and he intends to say so. He doesn’t specify the nature of the supposed unfairness.

Robert Ellicott (right) at eighty-four years of age stands before us for the after-dinner speech. Grey, balding and with a piercing gaze, a fine lawyer who has held an array of high positions in the legal profession, from leading barrister to Attorney-General. He went on to serve briefly as a Federal Court judge, before returning to the Bar in Sydney. From a Methodist background, he has the look of a balding, austere, grey-eyed preacher.

He begins with his time as Solicitor-General, when he represented the Commonwealth in defeating the first substantial claim for Aboriginal land rights, the Milirrpum case heard by Justice Blackburn. This experience and his account of mingling with disaffected Aboriginal claimants set the scene for his proposal that the Constitution be amended to include a preamble acknowledging prior occupation of the continent by indigenous peoples. There should also be an amendment to section 25 which would accept that they have been subject to long-standing discrimination.

The vote of thanks is moved by Dyson Heydon, who notes that Ellicott’s opinion urging Whitlam’s dismissal, which proved so influential in November 1975, was written hastily in the University House library, without access to law reports or precedents. But it has never been seriously challenged—a measure of the author’s skill. When I talk to Ellicott about his opinion, it quickly emerges that he stood by it at that time, and stands by it now.


Monday April 23, 2012

To the National Library in Canberra where I’m greeted by my friend from schooldays, George Martin. As we settle down to lunch, George, a former mayor of Tumbarumba, updates me about what is happening in that busy town on the edge of the Snowy Mountains. He goes on to say that he has just finished reading my father’s book Diplomatic Witness, about the Department of External Affairs in wartime. This leads on to talk about ASIO, Evatt’s involvement in the Petrov affair and the depiction of espionage in my novel Dismissal.

It strikes me, as we talk, that this is the right time to bring these diary entries to an end. Why were they made? It was essentially, as in my previous work, Bench and Book, an attempt to bear witness, to provide a personal account of the habits and preoccupations of a certain era, the scarcely visible but significant links between people active in public affairs, often known to each other from earlier days and from various interactions in the course of their careers. In that way, one can not only rediscover what happened in the past but also anticipate the sort of issues that may arise in times to come, for previously experienced matters often seem naturally inclined to reappear and cause ripples again. This is true of stories and dilemmas in both law and literature.


15 thoughts on “The Whitlam Dismissal, by Those Who Were There

  • Michael Waugh says:

    It was disgraceful that the Governor-General did not give the Prime Minister notice of what he was planning. It was the deceit and ambush which were unforgivable and un-Australian.

    • Peter OBrien says:

      Whitlam was well aware he might be sacked. He adverted to it on a number of occasions, most notably at the Tun Abdul Razak dinner at Yarralumla. Bill Hayden called on Kerr on 6 Nov to explain the workings of the plan to borrow money from the banks. On his return to Parliament House he told Whitlam that he believed Kerr was planning on sacking them. Whitlam replied “He wouldn’t have the guts’.
      Kerr was concerned that if he were to give Whitlam an ultimatum, Whitlam would move to have the Queen recall him. There was no ambush.
      I cover all this in detail in my book ‘Villain or Victim – a defence of Sir John Kerr and the Reserve Powers’ published by Connor Court. https://www.connorcourtpublishing.com.au/VILLAIN-OR-VICTIM-A-defence-of-Sir-John-Kerr-and-the-Reserve-Powers–Peter-O%E2%80%99Brien_p_491.html

    • David Isaac says:

      ‘Un-Australian’ If you wish to convince an intelligent audience best not use this meaningless word.
      In 1982 Ray Martin did a prison interview with a disillusioned young American signals operative, turned Russian spy, Christopher Boyce, who claimed that the CIA was interfering in Australian unions and was extremely concerned about the prospect of Whitlam’s government attempting to close Pine Gap. Kerr had been involved in wartime intelligence work and it has been suggested he still took an interest in spooky stuff. In any case Whitlam’s departure was not before time. It’s just a shame we didn’t have someone like Ming to replace him.

    • Louis Cook says:

      Michael, this is your opinion on a political event–many see it differently.
      John Kerr was the right person for the right moment and knew full-well how he would be treated after the event–it was shameful! It was not a ‘constitutional crisis’ but a political Party Power struggle. The provisions of the Constitution were used to resolve the issues and it was the Australian People who sacked the Whitlam Government at the subsequent election.
      Australians are so lucky to have the lasting benefit of a British Heritage but it does not guarantee our Freedom–that depends on the people living today.
      The Price of Freedom depends on more than ‘eternal vigilance’ BUT also INCLUDES a willingness to fight.

      • David Isaac says:

        We have subsequently lost a lot more freedom and unfortunately there are all too few left who understand what has been lost, let alone having the will and werewithal to fight.

    • sabena says:

      Whitlam was given a warning,contrary to what you say.
      At the beginning of the conversation on 11 November 1975 Kerr asked Whitlam whether he was prepared to recommend a general election.He said “No”.He was therefore tendering advice(the half senate election) which did not produce supply.Kerr then informed him that on that basis he was withdrawing his commission.
      As Anne Twomey records in her book the Veiled Sceptre,the exact circumstances had occurred in 1952 in Victoria when John Macdonald was forced to resign when he could not secure supply.Whitlam would have known this.
      Rather than answering “No” Whitlam could have asked for time to consider the matter-see David Smith “Head of State”,but did not.
      Any suggestion that Whitlam was entitled to remain in office until supply was actually exhausted is dealt with by the informal advice given by Sir Owen Dixon to Sir Dallas Brooks that it was important not to let supply expire because of the potentially catastrophic consequences.That advice is recorded in the diaries Dixon made which are in the National Archives.
      It is notable that in the years since the dismissal,no lawyer experienced in constitutional law has expressed the view that Kerr had no power to withdraw Whitlam’s commission.

  • STD says:

    It was not disgraceful! In fact it was to be proven to be an honourable action -ethical; the Governor General did the right thing by Australia,: this was proven at the election;remember, the one Saint Gough did not want.
    Oh, Micheal, Gough had the chance to do the right thing and shunned that avenue of honour. What exactly was un Australian?Micheal how on God’s good earth was it un-Australian when the Whitlam government got punted by the majority of Australians’ ,and I might add in the interests of Australia.

  • Ian MacKenzie says:

    Whitlam had tried to deny supply to the previous Coalition governments on numerous occasions, saying in the Parliament that a government denied supply must resign and call an election. Apparently these high principles applied to others but not himself. Kerr was correct, both with respect to the Constitution and principles that Whitlam himself had espoused.

  • pgang says:

    All that matters is that it was the right outcome for Australia. The rest is just a big yawn.

  • Doubting Thomas says:

    It speaks, indeed shouts, volumes about the nature of the lumpen Leftists who incessantly seek to condemn Sir John Kerr for his dismissal of Gough Whitlam’s demonstrably disgraceful rabble. As Michael Waugh demonstrates, and as is regularly regurgitated each anniversary by the true believers in the media, eg Paul Kelly and Troy Bramston, to name just two of many, Kerr’s own “Matters for Judgment”, and Sir David Smith’s “Head of State” explain in fine detail the reasons why Whitlam was not explicitly warned. As I recall, it was essentially to protect the Monarchy from being dragged into a political dog fight. But, of course, these true believers could not be seen to accept anything from the horses’ mouths.
    The only disgraceful aspects of the Dismissal were the typically arrogant behaviour of Gough Whitlam, and that of the ignorant leftist rabble that he did his best to turn into a rabid mob in front of Parliament House. Shamefully, these fools have spent almost the half century since denigrating Sir John Kerr, the only genuinely honourable man involved.

  • pgang says:

    There is only one question about the dismissal that has ever really interested me. Was Garry McDonald really on the steps with Whitlam?

  • Tony Martyr says:

    As has been noted above, what is undeniable was the conclusive answer given by the Australian people, which was repeated in 1977. Question asked, and answered.

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