Doing His Duty

The dismissal on November 11, 1975, of the intransigent Labor Prime Minister Gough Whitlam by the Governor-General, Sir John Kerr, remains one of the most controversial events in Australian political history. In 1974, Whitlam had appointed Kerr to the position of the Queen’s representative as formal head of state, a decision the Labor luminary regretted until his death.

In his newly published Villain or Victim? A Defence of Sir John Kerr and the Reserve Powers, Peter O’Brien clearly explains the constitutional basis for Kerr’s decision to dismiss Whitlam and invite Liberal leader Malcolm Fraser to form a caretaker government. This was “subject to a number of conditions, which included that [Fraser] now grant Supply and immediately advise a general election”. Had Kerr not done so, if the Senate had continued to remain obdurate (which it almost certainly would), Supply would have run out.

This review appears in October’s Quadrant.
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In the federal election of December 13, 1975, the Coalition won in a landslide, gaining ninety-one seats in the House of Representatives to Labor’s thirty-six. Labor’s outrage at Whitlam’s dismissal was not shared by the vast majority of the voters. Yet, in later years, Whitlam and Fraser became close friends and mutual political supporters.

By happenchance, as I began reading O’Brien’s detailed defence of Kerr and of the “reserve powers”, which are enshrined in our Constitution as a “last line of defence”, a bitter furore erupted concerning our current Governor-General, David Hurley’s role in appointing the previous Prime Minister, Scott Morrison, to multiple ministries. This occurred without most of Morrison’s coalition cabinet, his Liberal Party colleagues, the federal parliament, or the Australian public being informed. Several constitutional critics and “progressive” politicians focused on the “reserve powers”, suggesting that they should now be abolished. Some even demanded that Hurley be dismissed. Labor MP Julian Hill said, “While I like and respect the man, I’m struggling to see how the Governor-General’s position remains tenable.” 

In Villain or Victim?, which is a spirited book, O’Brien maintains correctly that the Governor-General of Australia is no mere figurehead. Moreover, he argues, again correctly, that Kerr clearly had the constitutional powers to dismiss Whitlam in 1975.

In subsequent years, O’Brien contends, some of Kerr’s many critics have claimed, wrongheadedly, either “that the powers he invoked do not exist, or that they have become defunct, or that yes, they do exist but should never be used, or that yes, they exist but Kerr misused them”. This cacophony of often contradictory criticisms, O’Brien argues, has had “the flow-on effect of discrediting the reserve powers and intimidating future governors-general against their use”. O’Brien further argues, again rightly in my opinion, that the most authoritative opponents of Kerr’s use of the reserve powers are Paul Kelly and Troy Bramston. As O’Brien puts it, “Their 2015 book The Dismissal: In the Queen’s Name is the most comprehensive of the critiques of Kerr’s actions.” Kelly and Bramston’s influential book is O’Brien’s main focus. Indeed, all the chapters of Villain or Victim? mirror those of The Dismissal, which makes for combative exegesis.

Kerr kept copious notes and documentation of his actions and the reasons for taking them. This means that all the Governor-General’s thoughts and concerns, as O’Brien puts it, “have been laid bare for Kelly and Bramston”, including as they say, “hundreds of pages from Kerr’s archives”. Perhaps surprisingly, O’Brien states that Kelly and Bramston “have made good use of them”.

But as Villain or Victim? argues, “It is telling that neither Whitlam nor Fraser left behind such detailed personal documentation that might have provided more insight into their motivations.” Hence it is difficult to disagree with O’Brien that this puts Kerr and his supporters at a distinct disadvantage in the continuing battle with his many enemies.

In a 2016 piece titled ‘Evidence, Memory and the Dismissal’, which O’Brien quotes at length, Gerard Henderson states that only Kerr and Garfield Barwick “left contemporaneous notes about their involvement in the Dismissal”. As Henderson claims, “Kelly/Bramston rely on the recall of Fraser and [Reg] Withers and Liberal MP Vic Garland, along with that of Fraser staffers David Kemp and Dale Budd. All this group, living or dead, left memories but not contemporaneous notes. The same appears to be the case with respect to Sir Anthony Mason.” But, as I have argued elsewhere, in agreement with Henderson, memory “is a very unreliable historical tool”. Sometimes people clearly remember events that never happened!

O’Brien argues powerfully that, if one strips away the legion of personal attacks and other peripheral issues, such as Kerr taking constitutional advice from Barwick and Mason, only one substantive criticism can be made of the Governor-General. This is “that he failed to warn Whitlam that he risked dismissal and that this failure encouraged Whitlam to remain obdurate”. But there is strong evidence that Kerr believed that, had he so warned Whitlam, the latter might well have contacted the Queen to have him recalled as Governor-General. As O’Brien persuasively argues, Kerr “had to balance the odds (however slim) that this might happen, against the almost incalculable harm … had it occurred”. 

In fact, many prominent political scientists (including David Butler) and eminent constitutional lawyers supported Kerr’s decision at the time. In retrospect, even former ALP federal Treasurer, Opposition Leader and Governor-General, Bill Hayden, thought that Kerr deserved to be “looked upon in a kinder and less subjective light”. In The Dismissal, Kelly and Bramston quote Hayden thus:

There may have been weaknesses in his character and defects in his judgment, which is to say he was human, but I have no evidence that his motives were sinister. I believe John Kerr was a good man, who, at worse, erred on this occasion; it would be a mark of maturity if more of us would acknowledge that he was far from an evil man.

Kelly and Bramston conclude: “It is an assessment remarkable in its generosity.” In response, O’Brien writes, “Bravo Bill Hayden, whose judgment—as one who was directly affected by Kerr’s decision—deserves more than to be dismissed as merely ‘remarkably generous’.”

CONCERNING the reserve powers themselves, O’Brien correctly argues that, currently, “The Crown, in the person of the Governor-General, does have certain prerogatives and they are powerful. And for this reason, as Kerr himself acknowledged, they should only be used rarely, viz., in extreme circumstances.” But therein lies a significant problem. As O’Brien puts it, “The infrequency of their use renders [the use of the reserve powers] vulnerable to the claim or perception that they no longer exist.” But, despite the claims of some contemporary critics that the reserve powers have become moribund, they are still in the Constitution. Whether this will change under the present Labor government is a matter of some conjecture.

In the concluding paragraph of Villain or Victim? O’Brien quotes the former Australian Solicitor General Sir Kenneth Bailey, who died three years before the Dismissal. This material was from Bailey’s introduction to the first edition of a book authored by a person who was to become one of the ALP’s most divisive and disturbed leaders, Dr H.V. Evatt. Published by Oxford University Press in 1935, The King and His Dominion Governors is arguably Evatt’s most distinguished book. Sir Kenneth Bailey presciently wrote:

It is not too much to say the whole future of the British constitutional system is likely to depend on the extent to which, in the next few years, it is demonstrated that the reserve powers of the Crown are not the antithesis but the corollary of the democratic principle that political authority is derived from the people.

Peter O’Brien has a strong conservative pedigree. After graduating from the Royal Military College Duntroon in 1970, he eventually became a lieutenant-colonel in the Australian Army, in which he served for twenty-one years. He then worked in business. In recent times he has developed a successful career as a writer, notably as the author of Bitter Harvest: The Illusion of Aboriginal Agriculture in Bruce Pascoe’s Dark Emu, as well as contributing frequently to Quadrant and Spectator Australia. 

Although O’Brien vigorously denies that Villain or Victim? is a hagiography, the book has few negative comments about Sir John Kerr. For example, in the index and throughout the text I can find no mention of Kerr’s publicly obvious increasing problems with alcohol. But perhaps this reticence is not unexpected when O’Brien describes himself as Kerr’s “self-appointed defence counsel”.

O’Brien concludes by warning “that circumstances under which the use of any of the reserve powers may be called for, could very easily arise in the near future”. 

Villain or Victim? A Defence of Sir John Kerr and the Reserve Powers
by Peter O’Brien
Connor Court, 2022, 370 pages, $39.95

Ross Fitzgerald’s recent books include the co-authored political satires The Dizzying Heights and The Lowest Depths, and, most recently, the co-edited collection My Last Drink: 32 Stories of Recovering Alcoholics, the latter published by Connor Court