Blame Whitlam and Fraser, Not Kerr

The Dismissal: In the Queen’s Name
Paul Kelly & Troy Bramston
Penguin, 2015, 432 pages, $39.99

Its fortieth anniversary has revived and deepened the controversy over the dismissal of Prime Minister Gough Whitlam and the appointment of Opposition Leader Malcolm Fraser as caretaker Prime Minister by the Governor-General, Sir John Kerr, on Remembrance Day, 1975. It is now, of course, an historical controversy. All three movers of the crisis are dead. But an important new book by Paul Kelly, doyen of Australian political commentators, and Troy Bramston—The Dismissal—has brought significant new aspects of it to light.

News media, in addition to extensively covering the book, have unearthed other aspects of the crisis—the Australian Financial Review, for instance, published a memorandum from one of Fraser’s aides warning him that his ruthless tactics during the crisis would undermine his moral credibility in dealing with Australia’s problems later. It is unusual for party leaders to criticise their predecessors, but Malcolm Turnbull seemed to agree with the AFR’s thesis in launching the book, saying: “in hindsight it would have been better if Fraser had gone to a regular election, which he would have won. There was a carry-over of bitterness and resentment resulting from the Dismissal.”

In my view Fraser and Whitlam are both open to serious criticism for their actions in the crisis. But what of the third figure, Sir John Kerr? Did he behave improperly, in effect violating key constitutional principles and colluding with Fraser to oust Whitlam? That remains a live political question both as a result of new information in the Kelly–Bramston book and because it has resonance in the contemporary debate on Australia’s constitution. One person is in a better position than most to answer it: the former official secretary to the Governor-General, Sir David Smith, the surviving and most credible witness of much of the crisis. His magisterial 2005 book Head of State and his other writings remain highly authoritative sources. This article draws heavily on those and on conversations with Sir David, as it does also on Kelly and Bramston’s book.

Let me reduce the fusillade of criticisms of Kerr down to ten key claims.

The first that is that a governor-general has no power to dismiss a prime minister, because he is an “automaton”, “rubber stamp” or even “mechanical idiot”. That is over-stated to the point of falsehood.

While the Crown normally acts on advice, this does not mean the Crown must always accept advice. This has been demonstrated on several occasions in the executive councils of the nation. Over and above this, there are a restricted number of powers which are discretionary, generally referred to as the reserve powers. They flow from the Constitution and generally relate to the appointment and dismissal of prime ministers and to the holding of elections.

There were no serious denials about their existence until 1975. Whitlam himself had argued in favour of their existence while in opposition. And on 170 occasions since 1949 Labor had sought to withhold supply with the explicit purpose of bringing down the government.

The following words, written in 1936, are as relevant today as they were then:

So far as Australia is concerned, a long course of practice tends to negative the proposition that the Governor-General of the Commonwealth of Australia or the Governor of a State is a mere automaton in the hands of Ministers who have lost, or are about to lose, the support of Parliament.

Those are the words of probably the greatest Australian authority on the reserve powers: Dr Herbert Vere Evatt, then a Justice of the High Court of Australia, subsequently Minister for External Affairs and later parliamentary leader of the Australian Labor Party. They are to be found in his celebrated book The King and His Dominion Governors.

Dr Evatt’s view was once undisputed. In 1951, when Menzies recommended a double dissolution to Governor-General Sir William McKell, Labor MPs argued that McKell was not obliged to accept the Prime Minister’s advice and that of the first law officers of the Crown unquestioningly. They said he should also seek independent legal advice from the then Chief Justice of the High Court, Sir John Latham.

As late as 2015, the Labor Party attempted to persuade the Senate to call on the Governor-General, Sir Peter Cosgrove, to act independently and dismiss Royal Commissioner Dyson Heydon. If this had happened, it would have been contrary to the advice of the Prime Minister.

Apart from an extraordinary claim in 2005 by the former New South Wales Premier Bob Carr, that Whitlam had destroyed the reserve powers—when he sought to justify his expulsion of the New South Wales governors from Government House, Sydney—all authorities today recognise the continued existence of the reserve powers.

The second claim is that it is improper for a governor-general to seek advice from judges because doing so violates the doctrine of the separation of powers. But that this was not so was well established in 1975 because decisions taken under the reserve powers cannot be reviewed by the courts; their exercise is not justiciable. Thus, when Sir John consulted two judges, the Chief Justice Sir Garfield Barwick and Sir Anthony Mason, he was doing no more than had six of his distinguished predecessors and several state governors.

As Anne Twomey, Professor of Constitutional Law in the University of Sydney observes, “it is actually quite hard to find an occasion when judges have not been involved in advising upon the exercise of the reserve powers”. In a discussion with a British law lord, Lord Wilberforce, I was informed that it was considered perfectly normal in London for the Palace to seek legal opinion from the Law Lords. Professor Twomey confirms this.

On a related matter, it is claimed that Kerr was furnished with a joint opinion by the first law officers. This is not so. Before Attorney-General Kep Enderby handed this to Kerr, he said he disagreed with aspects of it. So he wrote “draft” across the top and struck out the signature of the Solicitor-General, Sir Maurice Byers. And though he promised to provide a joint opinion, this never came. The confected outrage over the consultation with Sir Garfield Barwick and Sir Anthony Mason has ensured that, in future, Australian judges will be unlikely to agree to give advice in similar circumstances.

A third claim is that a governor-general is not free to enter into any meaningful discussions with the leader of the opposition. That could hardly be so, since one key role of a governor-general is to act as an umpire in a crisis. In any event Whitlam had agreed that Kerr should ascertain from Fraser if there were any change in the opposition’s stance on the withholding of supply.

But though he can hold discussions with the opposition leader to mediate or otherwise resolve a political crisis, he clearly cannot plot with him against the government. So a key element in this third claim is Fraser’s statement that Kerr had improperly forewarned him early on November 11 that he was going to dismiss Whitlam. Kelly and Bramston rely on this to justify the claim that Kerr lied, thus seriously damaging his reputation. It deserves serious scrutiny. What do we know about what happened? And from whom?

At 9.55 a.m. on November 11, Kerr made his only phone call to Fraser that day before he saw him at about 1.00 p.m. immediately after dismissing Whitlam. In his memoirs, Matters for Judgment, written just two years after the dismissal, based on his contemporary records and published in 1978, Kerr writes, “I next spoke to Mr Fraser who confirmed that the position and the opposition policy remained the same. I said nothing else to him about the situation.”

Nine years later, in 1987, Fraser made his claim that there was more to this call, and that Kerr effectively tipped him off about the dismissal by asking him a number of questions about what he would do if Whitlam were dismissed and Kerr offered to appoint him as caretaker prime minister. These questions, Fraser said, concerned such matters as relying on the bills available for a double-dissolution election, being only a caretaker prime minister, obtaining supply straight away, advising a double dissolution that day, and guaranteeing that there would be neither prosecutions nor a royal commission into the Khemlani loans affair. This list of questions lies at the heart of Fraser’s revelation and thus of the controversy. Was Kerr offering to make Fraser prime minister if he agreed to these conditions?

One has to ask how likely it is that Kerr would have asked these questions in advance. Fraser was hardly likely to have rejected the prime ministership because of any of these predictable conditions. Above all, he wanted an early election. There was therefore no pressing need for Kerr to satisfy himself on any of these points.

So is there another explanation? Consider the background. At this point, because of Whitlam’s refusal to advise the Governor-General to call an election, there was a growing media campaign for Kerr to dismiss him. Fraser and his advisers would naturally have prepared for this eventuality. They would have produced a list of conditions that the Governor-General would probably require before appointing Fraser as a caretaker prime minister. The questions above are entirely consistent with this. They would have all been in Fraser’s mind. He and his advisers would have gone over the list several times. Without further evidence, it’s an open question whether Kerr put them to Fraser or Fraser put them to himself.

There are at least ten matters which militate against the veracity of Fraser’s claim.

1. Sir David Smith was actually at the meeting between Kerr and Fraser on November 11. He says that when Kerr read the list of conditions, he had “the clear impression that Fraser was hearing these conditions for the first time”. The caretaker conditions were normal and to be expected. That about obtaining supply and advising an immediate election were Coalition policy and Fraser had already confirmed this in their first, Whitlam-authorised and well-recorded meeting on October 21.

2. At least until 1987, Fraser made no claim to have any contemporary records which made any mention of the alleged tip-off.

3. Fraser told Alan Reid on November 11 that he had had no knowledge of the Governor-General’s intentions when he went out to Government House earlier that day.

4. When Reid published his book The Whitlam Venture in 1976, it included Fraser’s clear and unconditional denial. Fraser did not protest that Reid was wrong.

5. Fraser said nothing in 1978 when Kerr, by then retired, published his memoirs. Remember, Kerr had described their telephone conversation on November 11 in these words: “I next spoke to Mr Fraser who confirmed that the position and the opposition policy remained the same. I said nothing else to him about the situation.” If Fraser really believed Kerr had said more, why didn’t he say so then? It is extraordinary that he failed to remonstrate at least privately with Kerr about something on which he placed so much importance years later.

6. Contrary to Fraser’s claim in his memoirs, the Governor-General did not require Fraser to “guarantee that no action would be taken against the ministers of the Whitlam government over the loans affair, and that there would be no royal commission”. Yet Fraser says these requirements were among the conditions of appointment in the phone conversation. They do not appear in the letter drafted before the telephone conversation. So they are probably part of the bundle of conditions worked out by Fraser and his advisers as likely to be imposed.

7. Fraser, according to Gerard Henderson, had a “notoriously fallible” memory and “is known to have consciously lied on occasions”. Fraser admitted to Sir David Smith that he had no recollection whatsoever of the 170 times that the Labor opposition had attempted to withhold supply and bring down the Liberal government.

8. Fraser waited two decades to tell Paul Kelly in 1995 that he had made a note of the phone call. So where was this crucial note? He told Kelly he had lost it.

9. Fraser’s 1995 claim that he had been forewarned can only mean that he consciously lied in 1975, and was prepared to deceive the Australian people with this lie for years.

10. After almost another two decades, Fraser claimed in 2013 to have found what Sir David aptly described as “a handwritten note scribbled on the back of a scrap of paper, and obviously signed and dated later with a different pen”.

In 2015, Dale Budd, who became Fraser’s private secretary in 1975, announced that he had recalled seeing the note on Fraser’s desk in the afternoon of November 11, 1975. On his own initiative, he photocopied this because he thought it an interesting and potentially historical document. He kept the photocopy, which he now produced almost forty years later.

If so, was this just a note of likely conditions Fraser and his advisers had worked out? Remember, it contains a condition Kerr never imposed.

In an oral history released only after his death, the late Senator Reg Withers reported that he was in the room during the call, saying:

Vic [Garland] and I could read it upside down. It was the four or five points that Kerr had laid down … He [Fraser] agreed when Kerr said they’d be the preconditions … Anything that Kerr and Fraser said since then has been … None of them told the truth about that.

If Fraser made some notes during the conversation they were not necessarily a record of the conversation. If I make notes during a telephone conversation they are either of the conversation, or an aide-memoire for what I want to say, or of matters which are triggered in my mind by the conversation although they were not mentioned in the call. Given the insertion of material never required by Kerr—that about not holding royal commissions—they were more likely to have been Fraser recalling a list of six conditions he and his staff would have thought were those Kerr was likely to impose.

It is unlikely that Kerr had changed his mind about the conditions, because he had already discussed them with Sir David Smith, who saw that the conditions were included in the letter which would be presented to Fraser.

As to the conflicting testimony, a contemporaneous record held consistently by a person of integrity who makes himself available for interrogation is surely the better evidence. On this universally accepted standard, Kerr is an exemplar and Fraser fails significantly.

Fraser’s claim is certainly neither proved beyond reasonable doubt nor even on the balance of probabilities. It seems to be in the same category as other stories which raged in the press about Fraser being at Government House with the blinds drawn, quaffing a whisky offered by Sir John and with his car hidden from view, or the concocted story that the New South Wales Chief Justice Sir Laurence Street advised Kerr against dismissing Whitlam. In a letter to Kerr, Sir Laurence actually confirmed that he gave no such advice.

The fourth claim is that by 1975 the Senate had lost its power to defer or reject money bills. This is simply fanciful. Unlike the House of Lords in the UK, the Senate is and was always intended to be powerful. If the Senate had not been given this power over supply, the states would never have agreed to federation. And if a convention existed that the Senate would no longer exercise its powers to delay or reject supply, why did the Labor Party under Whitlam and beforehand move in the Senate on 170 occasions to reject supply bills with the express purpose of forcing the government to resign?

The former Democratic Labor Party Senator Jack Kane explained the situation in 1988: “There is no difference whatsoever between what Whitlam proposed in August 1970 and what Malcolm Fraser did in November 1975, except that Whitlam failed.”

The fifth claim is that the Governor-General should have warned Whitlam that he was contemplating dismissing him. It is difficult to understand why Whitlam needed any warning when the Labor Party in opposition had attempted to deny supply to force an election no fewer than 170 times. During Question Time on the day the supply crisis began, October 15, 1975, Whitlam confirmed he had been “carrying out some research into the general question of dismissals of governments or rejections of supply and the like”. Later, during a dinner in honour of the visiting Malaysian Prime Minister, Tun Abdul Razak, while the crisis continued, Whitlam indicated he understood what could happen. When his guest asked how the supply crisis would end, Whitlam responded that it would probably end in a race to see which one, Kerr or Whitlam, could sack the other first.

Probably influenced by this and by the deceitful way an Executive Council meeting on the Khemlani loans affair was held without his knowledge, Kerr made two decisions. First, he would not give the Palace advance notice of any decision he might reach because this would unfairly implicate the Queen in a domestic Australian crisis. Second, it would be unwise to tell Whitlam in advance precisely when he would act because it would give Whitlam an opportunity to drag the Queen into a crisis in which she would be criticised whatever she did.

At every point until the very last moment Kerr gave Whitlam the opportunity to do what he knew he should do: resign or recommend an election.

The sixth claim—that a prime minister who cannot guarantee supply may nevertheless stay in office—is untenable. How could he govern the country if the money to pay for the police, pensions, the armed forces, and all government services was simply not available?

The seventh claim is that the Palace should have intervened by counselling the Governor-General and even reversing his decision. This ignores the fact that, as the Queen’s private secretary had to point out to the Speaker, the Australian Constitution “firmly places the prerogative powers of the Crown in the hands of the Governor-General”. This provision, the first in the British Empire, protects the Queen from involvement in the appointment and dismissal of prime ministers and the political controversies that inevitably flow from them. It seems an odd argument from republican politicians that the crisis would have been better resolved by the intervention of Buckingham Palace.

The eighth claim is that the Governor-General acted prematurely in dismissing Whitlam on November 11. But Sir David Smith argues persuasively that it was Whitlam, and no one else, who chose that fateful day. Rebuffed by the banks and realising that royal assent would not be given to the bills unless the Senate approved them, Whitlam gave notice that he would advise the holding of a half-Senate election on December 13.

But that was no solution. The electoral commission advised that any such election would have to be initiated by the following day. Several state governors would not co-operate in issuing writs, so that any new senators could not take their seats until July 1976. Money would run out for pensions, salaries and government obligations long before then. And December 13 was also the last feasible day for a 1975 general election. Kerr waited until the last moment for Whitlam to advise him to hold such an election.

The ninth claim is that reading the proclamation on the steps of Parliament was an unnecessary provocation. The practice of having the Governor-General’s proclamations to dissolve Parliament read from the front steps of the Parliament began in 1963 on the advice of the Attorney-General. Incidentally, the 1975 proclamation differed from that of 1974 because the words “God save the Queen” had been restored. They had been deleted when Whitlam noted on the draft: “We’ll have no more of this nonsense.”

Without that “nonsense”, though, Whitlam would have been deprived of his theatrical line, “Well may we say ‘God save the Queen’, because nothing will save the Governor-General.” So God and the Queen came back in.

The tenth claim is that this was a major constitutional crisis. Rather it was a political crisis between, as Sir David says, “two stubborn and arrogant men [Whitlam and Fraser] who were prepared to see the collapse of our system of government and of our economy in their respective struggles for dominance over the other. So it was left to the Governor-General, as the constitutional umpire, to break the deadlock and set in train a process that would put the issue to the people for them to decide.” It is hard to improve on that verdict.