What If Sir John Kerr Had Been a Layman?

The issues surrounding the dismissal of the Whitlam government in November 1975 by Governor-General Sir John Kerr, are confused by several facts.

One is that the Whitlam government had, as the subsequent election proved, become deeply unpopular and was ridden by a succession of unprecedented scandals, of which the sacking of the Deputy Prime Minister, Jim Cairns, and the Khemlani loans affair were only two. This may have created a perception in the minds of some people that the government had been sacked because of these scandals—that it had somehow been judged and found wanting by the Governor-General, rather than because it had failed to obtain Supply. Certainly these scandals may have contributed to that failure to obtain Supply, and given the Opposition increased confidence of success (or desperation), but were not a trigger in themselves.

Indeed there is an argument that had Whitlam not been dismissed, Labor’s defeat at the polls in due course would have been even more severe than it was. However, these scandals were only indirectly connected to the dismissal, which was triggered by the inability of the government to obtain Supply.

Perhaps more importantly, it was a coincidence that Sir John Kerr was by profession a lawyer and judge. This lent a colouration to his actions to the effect that he had made a judicial decision, whether alone or in consultation with other judges. The fact that he consulted Sir Garfield Barwick and Mason J is, strictly speaking, irrelevant. This was simply a precaution. The fact he called his memoir Matters for Judgement did not help.

He made a statement on November 11, 1975, setting out the reasons for his action. Again, this slightly colours the matter because it is written in judicial style and reads like a judge giving the reasons for a verdict. No doubt with his lengthy legal background, and given all the circumstances, Sir John could not have written in any other way, but strictly speaking he did not need to.

He commenced that statement: “It has been necessary for me to find a democratic and constitutional solution to the current crisis …” This really said it all. There could be no more “democratic” solution than calling an election, which was what he was doing. As for a “constitutional” solution, the issues were clear and again did not call for specialised legal training. The reserve powers gave him the ability to do what he did.

In fact, there was no particular reason why a governor-general should have been a judge, or had legal training at all. Many of Australia’s governors-general have been lay people.

It is easy to imagine Sir Donald Bradman or Lord Florey, or one of any number of distinguished naval or military personnel, outstanding medical practitioners and scientists, for example, being appointed governor-general. One cannot imagine Sir Donald Bradman’s appointment being regarded controversially in the community, or objections being raised that he was not a lawyer or judge; indeed it would probably have been very popular. But Sir Donald Bradman as governor-general would have had exactly the same reserve powers as Sir John Kerr, including the power to sack a prime minister. Sir Philip Game, who dismissed New South Wales Premier Jack Lang after Lang had failed to obtain Supply, was a former Royal Air Force officer.

However, the suggestion that a former judge should be disqualified from holding vice-regal office, by virtue of the fact that he has been a judge, is absurd. Why should Sir Isaac Isaacs or Sir William McKell be disqualified but not Sir William Slim or Sir Paul Hasluck?

Taken to its logical conclusion a prohibition on a lawyer holding the office would also disqualify anyone with expertise in fields touching law or politics. Men and women who have spent a lifetime in politics, even if they cannot write LLB after their names, probably know as much constitutional law as any judge.

Such a prohibition would, to be consistent, ensure that the governor-general was a constitutional ignoramus and a helpless puppet in the hands of the executive.

Prime ministers, even bad ones, do not get to be prime ministers unless they are individuals used to wielding power and authority and are masters of “people skills”. It is easy to imagine a prime minister with legal qualifications and the authority of office being able to bully and overawe a governor-general who lacked such qualifications. The ultimate constitutional safeguard looks like nothing more tangible than the governor-general’s character. For those who recall the atmosphere of late 1975, when the Whitlam government appeared bent on testing the Constitution to its limits, it is sobering to consider this fact.

Historically the individuals appointed to the post of governor-general have either had legal training or extensive political and executive experience. There is, however, no rule enforcing this. In the present era of political correctness one can imagine an individual being appointed simply for belonging to a minority group. There appears, incidentally, no prohibition on the governor-general asking advice from whoever he or she likes.

It would, of course, be very agreeable to an unscrupulous prime minister to have as governor-general someone not only ignorant of the law, but untrained and unused to the habit of exercising command when necessary. There is no test one must pass to be governor-general, apart from the rather vague one that a disastrous appointment might rebound on the appointing prime minister at election time.

Most of the time the qualifications for governor-general are simply to be someone respected as a symbol of the nation. The real qualification for the job is character. Similarly, the fact that the governor-general is also commander-in-chief of the armed forces does not make military training essential for the position. 

Whitlam himself, like Lang, never suggested there was anything illegal about Sir John Kerr’s exercise of the reserve powers. The legitimacy of their use has been backed by so many authorities as to be unquestionable. British Labour Party leader Clem Attlee stated in 1952: “The monarch has the right to grant or refuse a Prime Minister’s request for a dissolution of Parliament which involves a general election. This is a very real power …” The Canadian authority Senator Eugene Forsey, politically also a socialist, got to the nub of the matter: 

The reserve power is indeed, under our Constitution, an absolutely essential safeguard of democracy. It is the rubber-stamp theory [that is, reducing the governor-general’s power to rubber-stamping the recommendations of the government] which is undemocratic. It makes existing governments irremovable except by their own consent. Such a doctrine is a travesty of democracy. It delivers every Opposition, gagged and bound into the hands of its opponents. It delivers the people gagged and bound into the hands of every jack-in-office … It is despotism.

Forsey said on another occasion: “The Crown’s reserve power to refuse the advice of ministers when that advice imperils the Constitution still remains, as Lord Attlee reminded us in 1952 and 1959, and if parliamentary governance is to survive it must remain.”

Dr H.V. Evatt, in the earlier and lucid part of his career, devoted a whole book to explaining the nature and necessity of the reserve powers. It has also been commented on by innumerable other legal authorities, as Sir John Kerr mentions in Matters for Judgement. In fact the existence of the reserve powers is so settled that it does not need defending or more than a brief explanation here.

The essential qualification for governor-general comes down to one thing: in an emergency (whose nature cannot be predicted) he or she should have resources of character that ensure he or she will act. In a constitutional crisis, legal training is probably useful but not essential, as in a military crisis military training for someone in such a position is probably desirable but not essential. One difference is that a military commander-in-chief has the advice of a staff, while a governor-general may have to act alone or almost alone.      

It is in accord with the unpredictable nature of possible crises that the reserve powers are not justiciable. Should the reserve powers and their limitations be subject to judicial decision, they might as well not exist—every attempt to exercise them could be subject to legal challenge. Would the governor-general need to brief his own lawyers to fight the challenge in the High Court? One can imagine such litigation dragging on for years. It would mean, as Forsey warned, that existing governments would in effect be irremovable except by their own consent. Perhaps even worse, it would raise the possibility of civil war, with both the governor-general and the prime minister (or perhaps a new governor-general appointed by the prime minister in competition with the existing one), calling on the loyalty of the armed forces.