Inventing the Dismissal

A piece of paper from Malcolm Fraser’s files destroyed Sir John Kerr’s post-1975 reputation. Kerr was hated and abused by those who maintained the rage, but a single sheet of paper, an A4 paper plane, toppled the last standing remnants of the man in the top hat. The document, lethally loaded with a handful of scribbled words, proved, according to the latest history of the dismissal, that “Fraser was ready and prepared. The defeat of Whitlam was comprehensive—it was a joint Kerr-Fraser effort.”[1] Paul Kelly and Troy Bramston, who wrote this, are wrong: misled by the wrong words on the wrong piece of paper.

Philip Ayres’s 1987 biography of Malcolm Fraser first revealed Fraser’s claim that on the morning of the dismissal Kerr rang and asked four questions which indicated he was about to dismiss the Labor government. It was plausible. It was no secret that the phone call had taken place. In Matters for Judgment Kerr wrote that after speaking with Gough Whitlam, “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.”[2]

This essay appeared in a recent edition of Quadrant.
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The questions Fraser said he was asked were familiar. They were among the conditions Kerr said he had put to him, but later in the day, in his study before he commissioned the new prime minister. He sought an undertaking to guarantee the passing of Supply, the calling of a double-dissolution election, an agreement not to introduce new policies or make any appointments, and an undertaking, during the period of the caretaker government, not to hold inquiries into the activities of the Labor government. Sceptical commentator Gerard Henderson suggested Fraser used Kerr’s book “to reconstruct the alleged phone conversation of ten years earlier”.[3]

Had Fraser confused his memories of what was said on the telephone and what took place later at Government House? Sir John Kerr said he had. Fraser insisted his version of what had happened was correct. Stalemate.

After the celebrations and commiserations that took place in Canberra that night, did anyone have a clear memory of what happened during the day?

Within the going-nowhere controversy a new factor did emerge which possibly could have resolved the conflict. Fraser said he made a note of the conversation as it happened. Witnesses in his office now confirmed they had seen him writing something. Unfortunately, the piece of paper had vanished.

Thirty-five years later, in 2010, everything changed. Fraser’s political memoirs were published, and he produced a note which he had been holding back from publication for some years. A photograph of it was included in the book. [4] Some thought it was the only interesting thing in the co-authored volume. The matter was resolved: Fraser told the truth, Kerr was a liar.

In 2015, Paul Kelly and Troy Bramston published The Dismissal: In the Queen’s Name. A chapter with a giveaway title “Kerr and Fraser: The Tip-Off” presented their case for the prosecution:

Fraser’s note is authentic and constitutes powerful evidence. It has been validated by eyewitness accounts of the call and note, other sightings of the note and a statutory declaration from Fraser. In addition, since Fraser first revealed the story his account of the conversation has been remarkably consistent.[5]

The note is not authentic, it is not evidence of Kerr’s phone call to Fraser. It is something entirely different. None of the eyewitnesses to the call had read the note or would have known, at the time, who Fraser was talking to or what the person was saying. The statutory declaration Kelly and Bramston refer to was evidence of a cover-up, not validation. Fraser drew on the note, before it was made public, but recast its contents to make it seem consistent with his earlier claims. As for the document itself, if there was a note this is not it, it is something else far more commonplace. And, in one way, ever since 1975 it has always been sitting close by on library shelves.

None of the witnesses who saw Fraser writing confirmed that this note was that note. This note was never a secret document, nor is it evidence of a conspiratorial conversation. It is something the historians should have recognised. Fraser’s secretary, Dale Budd, said he saw it on Fraser’s desk on the afternoon of the dismissal. That afternoon, that is exactly where it should have been, lying in plain view on Fraser’s desk.

Fraser’s memory was always confused about which of his colleagues had been in his office when he took the call from Kerr and he seems never to have bothered asking them. Peter Nixon remembered a call which Fraser did not discuss: “we did not know if it was the Governor-General himself or an aide”. Nixon, writing years later, thought the call had come from Government House to invite Fraser to Government House at one o’clock.[6] At the time Nixon did not give the impression that a great secret had been shared. When Fraser left his office for Government House, Tony Staley remembered Nixon saying, “It’s no damned good, Malcolm. Whitlam’s got Kerr in his bloody pocket. It’s no good.”[7]

Reg Withers recalled Fraser making a note which he and Vic Garland read “upside down” but Garland said only, “I recollect Malcolm making a note.” [8] At the end of the call, Withers said Fraser “came to and took the paper aside.”[9] That may be the last time the famous scrap of paper was ever seen in public. Fraser may have destroyed it, as he suggested in a 1995 interview with Paul Kelly: “There were some people in my office at the time. I think Withers, Lynch and Anthony were the most likely ones. They wouldn’t have heard. They would have seen me take a few notes on a piece of paper which I haven’t kept, I promise you that.”[10]

Reg Withers also remembered that Fraser “took up his big felt pen”. The note is written with a finer-point pen and the annotation with a thicker felt pen. Withers claimed to have read some of it upside down. Try it. Fraser’s scrawl would have been impossible to read from the other side of a desk, and it was highly unlikely Withers would have been so overtly curious.

The document Fraser produced is the typed agenda for the Coalition’s Joint Party Meeting held on November 11, 1975. On the reverse side, in his handwriting, are six numbered points. There is no mention of Kerr. Towards the foot of the page is an annotation, added at a different time and with another pen: “9.55 11 Nov 1975 J.M. Fraser”. The year was originally written as 1985 and corrected to 1975.

Dale Budd said it was dated and signed when he saw it on the afternoon of the dismissal. He made a photocopy, but waited until 2006 before he made this public: though without releasing a copy.[11] On the original, the colour of the blue felt-pen annotation has remained remarkably bright over the years.

The note has been used to attack Kerr’s reputation in two ways. The six points are used as evidence that he lied and, as Fraser claimed, had discussed these matters with him before Whitlam was sacked. Then, the 9.55 time point shows the call occurred even before Whitlam had informed the Governor-General that it was his intention to proceed and advise a half-Senate election. One plus one equals the destruction of Kerr’s reputation. Paul Kelly and Troy Bramston are succinct and judgmental: “Kerr’s action constituted an unjustified tip-off to Malcolm Fraser.”[12]

The document lists six, not four points, and is not a record of Kerr’s call to Fraser on the morning of the dismissal. This piece of paper is a numbered list of points Fraser wanted to include in his statement to the House of Representatives that afternoon. It was probably written on his return to Parliament House and after meeting with senior colleagues and having been assured by Reg Withers that the Supply bills would rapidly be passed in the Senate. He may even have written it inside the chamber as he waited to speak.

The points on this list are not in the order that reflected the Governor-General’s priorities, but in the order that was important to Fraser that afternoon. This is the note:

1/Double Dissolution Bills
2/Caretaker
3/No policy changes [though his writing was so scrawled it could have read “No police charges”]
4/No Royal Comm[ission]
5/+Supply
5. [6] Dissolution Today

The two last points were both numbered 5. This may not have been a mistake but an “either/or” suggestion for where they would be best placed in his statement.

If this had been written as the Governor-General spoke to Fraser, passing Supply would have been his first condition. That place, on this document, is taken by “Double Dissolution Bills”, not double-dissolution election. That afternoon this was of major importance. It refers to the assembling of the parliamentary bills that could be used to trigger a double dissolution. These had to be collected and framed into a document for Fraser to offer his advice to the Governor-General that elections be called for both houses of parliament. This was his urgent priority after Supply had been passed in the Senate. For the public servants two days work had to be compressed into less than two hours.[13] The new prime minister had given them a 3.40 deadline and he left the House after making his statement in order to ensure they produced the documents he needed to present to the Governor-General. The chamber was in furious uproar. He did not even stay to vote on his own motion to suspend the sitting. He had to deliver his advice to Kerr before four o’clock. This is why it was placed at the beginning of his speech notes. After the passing of Supply, which had been the tactic of both Fraser and Whitlam when Parliament resumed, there was now a race to Government House: for Fraser to recommend a double-dissolution election or for the Speaker of the House of Representatives to ask the Governor-General to reinstate Whitlam. Labor never heard the starter’s gun.

An extract from Hansard shows how Fraser used the note in his speech. I have inserted the point numbers in square brackets, and have changed the second number 5 to 6 for clarity.

The text begins with point number 2 because that sentence is taken from Fraser’s letter to Sir John Kerr which he was reading into the parliamentary record:

[2] My Government will act as a caretaker government and will make no appointments or dismissals or initiate new policies before a general election is held. [1] Under the terms of the double dissolution the Bills that are in a double dissolution position will all be cited in that double dissolution and honourable members will have in mind the significance of that. [3] There will be no new policy changes. [4] There will be no royal commissions or inquiries into the activities of this Government throughout the period of the election campaign. [6] We will be seeking dissolution of the Parliament at the earliest opportunity. [5] The Appropriation Bills, as some honourable member [Gough Whitlam] interjected, have already passed through the Senate.

The statement continued with extracts from Kerr’s statement giving the reasons for taking the action he had.

The document Fraser produced so long after it was written was probably neither secret nor lost, and all the time Dale Budd had a copy of it. Until it was “found” it was probably exactly where it should have been: either among copies of Fraser’s speeches or sitting typed-side-out among his old office files, beside the minutes, as the agenda of the Joint Party Meeting. Only when someone looked on the opposite side would the handwritten notes have been seen. Unsurprisingly, Fraser found it when “sorting” his papers.[14]

The 9.55 time notation on the document should have alerted historians to a problem. It contradicts all previous accounts of the dismissal, including Fraser’s own. Earlier evidence placed the Kerr–Fraser phone call somewhere after 10.05 and before 10.30. The note was published and historical narratives were readjusted with strange results. It’s an interesting point whether 9.55 is meant to mark the beginning or the end of the call. And how long did it last? Those six points, plus explanation and introductory matters, would have taken at least five, eight or ten minutes. Some years earlier, in conversation with Gerard Henderson, Bob Ellicott said the call had been too quick even for a discussion of the four points Fraser was then claiming had been discussed.[15]

Fraser’s Political Memoirs are misleadingly specific about when the notation was added: “The phone call with Fraser ended. Fraser wrote the time and date on his note of the conversation, and signed it.”[16] When Gerard Henderson queried this with Fraser’s co-author Margaret Simons, she described his queries as “snarky”. Her reply changed the story, slightly: “Malcolm put the time and date on the note later—he believes after the joint party meeting that immediately followed the call.”[17] Actually it didn’t. Though the starting time on the Agenda is stated as 10.00 it was delayed to 10.30. An equally sceptical observer could speculate that Fraser had forgotten that the meeting had been delayed when he added the annotation—and also speculate that because the year had first been written as 1985, it had been added in the 1980s. Of course, such speculation is pointless as we have both Fraser’s own evidence and that of Dale Budd who photocopied the document, with its annotation, on the afternoon of November 11.

On Remembrance Day, 1975, a morning meeting to discuss the Supply crisis was attended by Whitlam, Frank Crean and Fred Daly from the government and Fraser, Doug Anthony and Phillip Lynch for the opposition. It ended at 9.45. Whitlam had issued an ultimatum, the word was chosen by Laurie Oakes in his report the following day.[18] The Opposition had been given six hours to agree to his terms or he would call a half-Senate election. Everyone, except Whitlam, knew this would provoke a showdown with Sir John Kerr, who would be forced to make a decision over authorising the conducting of an election while the government was without the money to pay its expenses.

After the meeting John Menadue, secretary of the Prime Minister’s Department, went to Whitlam’s office and was briefed about what had taken place. Menadue wrote a file note the following day with his account of how matters had unfolded.

Fraser and his associates had gone to his office for a discussion with senior members of the shadow cabinet. Fraser dictated a note on the meeting: “The prime minister said that if the appropriation bills were not passed today, he would go to Government House to recommend a half-Senate election.”^[19]

Whitlam was already double-crossing the Coalition. He had already made his decision to call the half-Senate election and David Combe, the ALP’s national secretary, was advising state ALP secretaries of the coming election and making the first campaign bookings. Before he had a response from the Coalition, Whitlam asked Menadue to phone Kerr for an immediate appointment. His account in The Truth of the Matter is deceitful, as he makes it appear that Fraser had already rejected his offer at the meeting itself.^[20]

Menadue rang Government House at about 10.00 and, as David Smith, Kerr’s Official Secretary, was unavailable he spoke to Kerr himself. The Governor-General had to officiate at the Remembrance Day ceremony at the War Memorial and suggested meeting Whitlam when Parliament broke for lunch. Menadue passed this message to Whitlam.

About the same time, in Fraser’s office, the decision was taken to reject Whitlam’s offer and it was just after 10.00 when he rang Whitlam to inform him. The time was given in Philip Ayres’s 1987 biography.^[21]

After speaking to Fraser, Whitlam’s secretary rang Government House for the Prime Minister and was told that the Governor-General was unavailable. Whitlam himself then rang on Kerr’s direct line and immediately got through. Kerr apologised and said he had been talking to his daughter, as his grandson had just been admitted to hospital. Whitlam now confirmed his intention to call a half-Senate election even without the Supply bills being passed: “He said Supply was not available and he intended to proceed with his plan to govern without it. This was in response to a question from me. He did not say he could get temporary Supply for the half-Senate election.”^[22]

At about 10.10, before he went into the Labor caucus meeting Whitlam told Menadue that he had spoken to Kerr, and Fraser: [is this Kerr?] “Mr Whitlam told me that, in the meantime [before his call to Kerr], Mr Fraser had rung him to say that he was not interested in any arrangement to pass Supply in return for no half Senate elections before May/June 1976.”^[23]

After talking to Whitlam, Kerr rang Fraser. He recalled that the time was between 10.00 and 10.30.^[24] Fraser gave several different times for the conversation. In Philip Ayres’s biography it occurred between 10.05 and 10.30.^[25] Elsewhere he suggested “probably about 10.30, or a quarter to 11”: these latter times are incorrect as he was attending a joint party meeting from 10.30. ^[26]

Whitlam made the election announcement in the caucus and it was soon being broadcast by the media, but he did not announce it in the parliament and the Coalition was left confused as to what was happening.

If the 9.55 time, on the wrong piece of paper, is correct, then Kerr spoke to Fraser before he spoke to Whitlam, and before Fraser spoke to Whitlam. Yet both Kerr and Fraser agreed that they only spoke after each of them had talked to Whitlam.

As Fraser recalled: “John Kerr did ring me up in the morning of that time, after that meeting had failed and that there was no agreed compromise, which he had been advised by the Prime Minister [emphasis added] and I said yes that was right.” On this point their memories seemed very similar, with Kerr saying Fraser “confirmed that the position and the Opposition policy remained the same. I said nothing else to him about the situation.”^[27] On that latter point Fraser disagreed.

Jenny Hocking’s Gough Whitlam: His Time ignores contemporary evidence to claim that Fraser had already spoken to Kerr, “agreeing to terms”, before he telephoned Whitlam. When Whitlam’s office attempted to contact Kerr he was unavailable because he was taking a call from his daughter. This is what Kerr told Whitlam, and David Smith was in the room when the private call began. Hocking ignores this and knits a fluffy conspiracy for her readers:

Shortly after 10 am, having just spoken to the Governor-General on the official Government House line [the what?] and agreeing to terms, Fraser had telephoned Whitlam and told him there would be no compromise. It was only then that Whitlam had reached Kerr on his private line, unaware that his difficulty in contacting him had been because Kerr had been speaking to Fraser.^[28]

In that bad book, Hocking claimed Dale Budd was present when Kerr spoke to Fraser. He wasn’t.[29] In another book, shorter but perhaps even deadlier, The Dismissal Dossier: Everything You Were Never Meant to Know about November 1975, she magically deletes Fraser and transforms Budd into the note writer: “A note of this vital conversation made by Fraser’s private secretary at the time and subsequently released”.[30] Discussing the note she actually, and tellingly, prefers the old logical four-point list from 1987, rather than the six-point list. Perhaps, in a confused way, she also recognises the problems with the later list.

That morning the events played out with these approximate times:

9.45: The Whitlam–Fraser meeting ends and both leaders return to their offices to confer with colleagues.

10.00: Menadue speaks to Kerr and makes an appointment for Whitlam to visit Government House.

10.05: Fraser calls Whitlam to reject his offer.

10.10: Whitlam calls Kerr. His staff have been unable to speak with Kerr and Whitlam calls on the Governor-General’s direct line. Whitlam tells Kerr that the meeting did not produce a compromise and he will be advising a half-Senate election which he plans to conduct without Supply.

10.15: Kerr, now knowing Whitlam’s position, telephones Fraser to confirm what he has been told by Whitlam and that his own position has not changed.

These times are based on evidence given by the participants long before the famous piece of paper was produced. Move the Kerr–Fraser telephone call to 9.55 and it produces a scenario which has the astute Governor-General revealing his hand to the Opposition leader before Whitlam has confirmed that he will be advising an election.

Kerr cautiously delayed taking action as long as possible. At 12.15 Government House rang Fraser’s office with a simple request for the Opposition leader to see the Governor-General. It was all very low-key and, as Dale Budd recalled, “This call did not generate any particular excitement.”[31] When leaving Parliament House, Fraser paused to talk with the journalist Alan Reid. He said that he and Whitlam had been asked to see the Governor-General. Asked why, he replied: “I don’t know. I wasn’t told. I suppose it’s to get my version of this morning’s discussions [with Whitlam, Crean and Daly].”[32]

At Government House nothing was final until the very last, as Sir David Smith, responsible for preparing all the paperwork that may have been needed, has noted:

The Governor-General had prepared for any eventuality, including the possibility that Whitlam might choose to go into the election as prime minister by changing his mind at the last minute [my emphasis] and recommending a dissolution of both the Senate and the House of Representatives—a double dissolution.[33]

Until the last act of dismissal was completed, Kerr, as his own playwright, had left open the possibility of different endings to his drama.

Malcolm Fraser relied on the wrong time, on the wrong piece of paper, to make his case against Kerr. An injustice has been done.