Sir John Kerr Vindicated

The Dismissal
by Paul Kelly & Troy Bramston
Penguin, 2016, 429 pages, $24.99
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Australians have an enduring fascination for the polarising events leading up to and on November 11, 1975, which the passing of time has yet to diminish. This was evident on the fortieth anniversary which was marked by the launch of The Dismissal by Paul Kelly and Troy Bramston. The book contains a comprehensive, well researched and well written account of the events. To my knowledge it contains much new material and is generally fair and balanced. An updated version has appeared in paperback on the forty-first anniversary.

However, reading and rereading the original hardback version I became convinced that Kelly and Bramston’s major criticisms of Sir John Kerr’s conduct were undermined by their conclusions on the underlying and background issues.

They conclude that Sir John Kerr should have been open and frank with Whitlam (pages 35, 113) during the crisis provoked by the Senate’s decision to defer consideration of the Supply bills. They claim that by failing to do so Kerr “deceived” Whitlam (30–33) without actually lying to him (34–35). They record (29, 42–43, 157) Sir Anthony Mason’s advice that, before dismissing Whitlam, Kerr should give him the opportunity of going to the electorate as Prime Minister. This would have required Whitlam to advise a double dissolution, and obtain supply by satisfying the Opposition’s condition for passing the Supply bills through the Senate. Kerr did not follow this advice, and can fairly be criticised for not doing so. The authors state that “The fatal defect was … [that] he decided on a dismissal without warning” (189). They also say that Kerr’s “great mistake was his misunderstanding of the reserve powers … [which] exist to be used only in the most exceptional circumstances as a last resort” (299).

The authors record that Whitlam told Kerr at their meeting on November 3 that the only way a general election would be obtained was if Kerr “were willing to do a Philip Game” (181–82). This was a reference to the New South Wales Governor who dismissed Premier Jack Lang in 1932. The authors criticise Kerr for not responding (182–83). In my opinion, for reasons given below, this was unrealistic.

The authors’ general conclusions on the underlying issues are clearly correct. Provided the Senate held firm and continued to defer the Supply bills there had to be a general election that year (187). The last day for such an election was December 13, and it had to be called by November 12 at the latest (187, 214). By November 11, the day of the dismissal, a general election was the only option (176). “As a constitutional and political fact”, if Whitlam could not get supply by November 11 he had either to advise a general election or resign (168).

At 10 a.m. on November 11 Whitlam informed Kerr by telephone that he would attend at Government House later that day to advise an election for half the Senate. In answer to Kerr’s question he said that supply would not be available for the campaign (216). Thus Whitlam did not expect the Senate to pass the Supply bills that day and realised that an election of some sort would have to be called (175). Kerr then understood that he would have to make a decision later that day (216). He had waited until the last possible moment and only acted when Whitlam forced his hand by advising an election for half the Senate (189) that could not guarantee supply.

The authors conclude that advising an election for half the Senate on 11 November “was not a tenable proposition because supply would expire during the campaign” (174). “No responsible Governor-General, Kerr or anyone else, would have accepted this advice on 11 November” (175, 187). Such an election would not have solved the crisis that year. The senators elected for the states would not take their seats until July 1, 1976 (95), and although the two senators elected for the ACT and for the Northern Territory would take their seats immediately, the ALP was not likely to win both Senate seats in either territory and would still lack a majority. This was confirmed in the double-dissolution election on December 13 when both the ALP and the Coalition won Senate seats in each territory.

The authors state that Whitlam’s alternative funding arrangement once supply ran out “was not a sustainable solution to the crisis” (177, 189). Because Whitlam had refused to advise a general election or resign, Kerr’s decision to force the issue was justified (189), as was his decision not to inform the Queen in advance (190).

Kerr did not give Whitlam an opportunity to advise a double dissolution and remain Prime Minister (224). He said that he would have done so if Whitlam had asked for this but he did not (221, 222–23). The authors say that this was a face-saving device by Kerr (223) and perhaps it was. They also state that the dismissal letter was misleading because it stated that Whitlam had “persisted” in his attitude that he would not resign or advise a double dissolution (223–24) but, as will appear, this was true.

On November 6 Whitlam told Kerr that he would probably advise an election for half the Senate to be held on December 13 (187). At 10 a.m. on November 11 he told Kerr over the telephone that he would be attending to advise an election for half the Senate later that day (215). When he saw Kerr at Government House about 1 p.m. he said, “I have a letter with the advice which I gave you on the telephone this morning” (221). At all times during the crisis he had told Kerr “in the clearest terms that he intended to govern without supply and would never recommend a dissolution of the House or a double dissolution because supply had been denied” (175). He would govern without supply and without going to the people (175). All this showed more than enough persistence to justify the statement in the dismissal letter to that effect.

In the countdown to November 11, as the authors note (35, 137, 141, 149), Whitlam never engaged Kerr on the issues. He insisted that the Governor-General had no independent discretion and must follow advice (136). His approach was based on “a refusal to engage in private and a compulsion towards intimidation in public” (303). He was not “open, frank, and honourable with Kerr” (304). Kerr adopted the same approach to Whitlam (304). Can he be fairly criticised for reacting in this way?

The authors note that Whitlam’s attitude to Kerr was patronising, contemptuous, and guaranteed to provoke hostility (136). At a formal dinner for the Prime Minister of Malaysia and his wife on October 16, the day the Senate first voted to defer the Supply bills, in the presence of the Frasers and Lady Kerr, Whitlam said, “It could be a question of whether I get to the Queen first for your recall or you get in first with my dismissal” and everyone laughed (120). Kerr took it as a threat (120). Whitlam would “joke” about sacking the Governor-General (119–20). It was part of his tactic of intimidation (120, 137). Kerr believed that Whitlam was serious (118, 122, 134, 158). The authors conclude that Kerr’s conduct during the crisis was that of a coward (190). Would it not be fairer to see it as the conduct of a prudent man under threat? Kerr’s failure to give Whitlam the chance to advise a double dissolution on November 11 was an error of judgment, not the act of a coward. By then Whitlam had no chance of having Kerr recalled by the Queen before he could be dismissed and Kerr must have known this.

The authors ask whether Whitlam would have sought Kerr’s recall if he thought that Kerr might act (132–33) and conclude that this is an open question (132). One surely starts with Whitlam’s “jokes” as an indication of his thinking before his dismissal. However, the best evidence has to be his statements in the immediate aftermath. After lunch on November 11 he met with colleagues at The Lodge when, according to Fred Daly, Whitlam said, “I’ll sack Kerr” (226). He wrote to Harold Wilson, the British Prime Minister, on December 31 stating that Kerr “deceived me—realising I’m sure, that I would have been in touch with the Queen if my suspicions had been aroused” (117). Kerr was right, Whitlam’s “jokes” indicated what he would have done. Despite his later protestations to the contrary referred to by the authors (132–33), there is no reason for rejecting this contemporary evidence of his likely reaction to any frankness on the part of Kerr.

Whitlam could, in secrecy, have formally advised the Queen to recall Kerr, and Kerr could have been dismissed without notice or warning. If Whitlam had moved in this way soon after the Senate first deferred consideration of the Supply bills, whatever time was needed for this process would have expired before November 11 (132–34). In the process the Queen, whatever she did, would have become embroiled in the crisis. This was something Kerr was anxious to avoid, and rightly so according to the authors (190).

Surely Whitlam’s attempts to publicly humiliate and intimidate Kerr forfeited the normal right of a prime minister to receive frank and fearless advice and warnings from the governor-general. Any frankness on Kerr’s part would probably have provoked an attempt to have him recalled, with unforeseeable and potentially very damaging consequences whatever the Queen did. Whitlam did not have to be warned about the constitutional position. He was well aware of this and never claimed that his dismissal was illegal (302). When warned on November 6 by Bill Hayden, who had just met with Kerr, that Kerr was thinking of sacking “us” and calling an election, Whitlam replied: “No, comrade. He would not have the guts for that” (188). Whitlam later complained loud and long about his dismissal, but he never said what he would have done if Kerr had given him the opportunity to change his advice. Since his complaints were not based on the loss of this chance his real complaint must be that he lost the chance of getting in first by having Kerr recalled.

Kerr’s reticence during the crisis was an understandable and prudent reaction to Whitlam’s public and private attempts to intimidate him. In doing so he protected the Queen. He also ensured that he was not replaced by a compliant successor who might have allowed Whitlam to govern illegally without supply. He should have followed Sir Anthony Mason’s advice on November 11 and given Whitlam the chance to advise a double dissolution and go to the electorate as Prime Minister. However, there is no reason for thinking that it would have made any difference or that Whitlam would have changed his advice.

The authors also criticise Kerr for misunderstanding the nature of the reserve powers which exist “to be used only in the most exceptional circumstances as a last resort” (299). Given the authors’ conclusion that a general election for December 13 had to be called by November 12 and only two weeks supply remained, Kerr was surely entitled to conclude that such circumstances existed. Faced, on the second-last day, with unacceptable advice, for an election for half the Senate, surely he acted as a “last resort”? Dismissal would not have been “a last resort” if Whitlam had been prepared to change his advice but he never made that claim. Earlier the authors said that “The reality was that Kerr could not wait beyond 11 November” (189).

Thus, although the authors criticise Kerr’s conduct during the supply crisis and in the dismissal, in reality and overall their conclusions substantially vindicate him.

Postscript: The authors note, without comment, that the British High Commissioner, in a despatch to London shortly after the dismissal, criticised Kerr’s actions. However, his criticisms were based on an inadequate knowledge of the Australian Constitution, of the necessity for a resolution of the crisis by November 12 if a double dissolution was to be avoided, and of the relationship between Whitlam and Kerr. He suggested that Kerr should have “waited until central government services had ground to a halt and real hardship began to be felt” (253). This placed the interest of the Crown in a quiet life above our interest in having a government which could provide supply. The duty of a prime minister who cannot provide supply either to advise a general election or resign, and the duty of a governor-general if the prime minister breaches that duty, are designed to avoid, not cause, the hardships that the High Commissioner thought should be accepted before the reserve powers were exercised.