The Dismissal

Kerr, Whitlam and the Supremacy of the Parliament

In a recent piece in The Australian,  concerning the proposition in the 1970s that the then Prince Charles might become Governor-General of Australia, Paul Kelly made the following observation concerning the dismissal of Gough Whitlam by Sir John Kerr:

Kerr always knew the prime minister had the constitutional power to remove him.  

Certainly, both Kerr and Whitlam believed this.  And technically it is probably correct, but the only constitutional force it has is by virtue of convention.  That possibility was a major concern for Sir John Kerr and was the main reason he never explicitly warned Gough Whitlam that he might be dismissed.  My belief is that he thought this would be a provocative move and, furthermore, he believed that it was unnecessary because Whitlam himself had adverted, on a number of occasions, to this possibility.  The most notable of these came during a State dinner at Yarralumla to honour  Malaysian Prime Minister Tun Adbul Razak,  Whitlam famously said that events might come down to a race to the Palace. 

Kerr wanted to avoid this, not only because he did not relish being sacked, but because he was determined that Her Majesty should not become embroiled in a political crisis in Australia.

The first point to make is that the Prime Minister did not have the power to remove Kerr.  The most he could do was to recommend to Her Majesty that she withdraw Kerr’s commission.  Whitlam told Professor David Flint, well after the dismissal, that this could be done by simply recommending a new Governor-General.  It would be up to the Queen to accept or reject this recommendation.

Kerr was alive to this possibility and prior to the dismissal he asked his Official Secretary, David Smith, to sound out the attitude of the Palace on this issue.  Sir Martin Charteris, the Queen’s Official Secretary at the time, advised Smith that a telephone call from Whitlam would not suffice and that a written case would have to be made, but in the end Her Majesty would have to act on Whitlam’s advice.

I am not a lawyer, and I am going to go out on a limb here.  I am going to suggest that Kerr, Whitlam and Charteris all got it wrong.  If not in practice, then, at least, in theory or logic.

In my book Villain or Victim – a defence of Sir John Kerr and the reserve powers, I argue that the Governor-General is analogous to a regent.  A regent is someone who is monarch in all but name, such as the future King George IV when, as Prince of Wales, he exercised all the royal prerogatives that then remained to the Monarch, during the debilitating mental illness of his father King George III.

Section 61 of our Constitution states that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative.’ There is no caveat to this provision. This means the Monarch has no power that he/she may exercise in Australia, other than appointment and removal of the Governor-General (which is covered in Section 2).  The Governor-General is the Monarch’s representative, but he is not his/her deputy.  In 1953, Neville Shute published a novel, In the Wet, which postulated that Britain abolished the monarchy and the new Queen Elizabeth came to live in Australia. If that were to happen today, King Charles III would have no powers other than those that derive from Section 2.

In the Westminster system there is a convention that ‘the Crown acts on the advice of its Ministers’.  This refers only to matters of government policy, legislation, regulation and so on.  It is upon this convention that Charteris based his belief that the Queen would ultimately have had to acquiesce in Whitlam’s demand (had it been made) that Kerr be recalled.  I would argue that the Prime Minister of Australia has no such relationship with the Monarch.  The only person to whom he can give advice that must be accepted, i.e., advice relating to government policy legislation etc, is the Governor-General.

There is nothing in the Constitution about the appointment or removal of the Governor-General.  And neither is there any mention of the office of Prime Minister.  Section 64 of the Constitution stipulates that Ministers of State are appointed by the Governor-General and hold office during his pleasure.  This is the reserve power which allowed Sir John Kerr to constitutionally withdraw the commission of Gough Whitlam as Prime Minister.

The appointment of a Governor-General is not the gift of the Prime Minister.  By convention in Australia, it is the Prime Minister who recommends a person to the Monarch to be his/her representative.  Once that recommendation is accepted, the future of the Governor-General is the sole province of the Monarch as Section 2 states:

A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign him.

In my view, a recommendation to the Monarch to terminate a Governor-General can only be based on the premise that he/she is no longer a fit person to represent the Monarch, for example through incapacity or malfeasance.  There can be no justification for a Prime Minister to arbitrarily, and self-interestedly, recommend recall of a Governor-General, particularly while he/she is in the process of executing Constitutional prerogatives that may impact the Prime Minister him/herself.  The Governor-General is duty bound to uphold the constitution.  In 1975, Whitlam was intending to flout the Constitution either by governing without Supply (defaulting on government payments) or by spending money that had not been properly appropriated by Parliament.

I may be wrong in law in my contention above, but I believe my logic is correct.

The Glorious Revolution of 1688 established the doctrines of Parliamentary Supremacy and responsible government.  The government (the Executive) is responsible to Parliament.   It was Parliament that dispensed with the services of Charles I. It was Parliament that restored Charles II and eventually replaced James II with William and Mary.  It was Parliament that determined in 1936 that Edward VIII could not marry Wallis Simpson and remain King. 

It was Parliament that Whitlam was defying in 1975.  It was Whitlam who threatened the doctrine of responsible government, not Kerr, as Paul Kelly claims.  Like it or not, the Senate had, and still has, the power to block Supply.  The Chief Justice of the time, Sir Garfield Barwick, held that denial of supply was the Senate’s vote of no confidence in the government.  In his view, and that of others, this meant that Whitlam had either to offer his resignation or advise an election.

The fact that Sir John Kerr feared that Whitlam would recommend his recall to the Palace constrained him from explicitly warning he would act on his reserve power were his hands to be forced. This failure, or discretion as I prefer to call it, is the only substantive criticism that can be levelled at Sir John.

That could have been avoided if the threat of arbitrary removal had not hung over Kerr’s head.  A recommendation for recall of the Governor-General should only be made by Parliament and only for reasons of incapacity or malfeasance.  Certainly not because the government of the day finds him/her troublesome.

That could be legislated today.  You might argue that a Governor-General immune to the government of the day, might feel empowered to exercise his/her reserve powers capriciously.  To which I would respond that we would have to rely upon the integrity and discretion of the Governor-General, the integrity of the Parliament itself and a convention or legal provision that the Governor-General should take independent advice, possibly from the Chief Justice.

Peter O’Brien’s latest book, Villian or Victim? A defence of Sir John Kerr and the Reserve Powers, can be ordered here

15 thoughts on “Kerr, Whitlam and the Supremacy of the Parliament

  • nfw says:

    “…we would have to rely upon the integrity and discretion of the Governor-General, the integrity of the Parliament itself.” Now that is a BIG ask. If Morrison did make himself all those deputy minsiters during the Great Scamdmic, then the GG had to do the swearing in and by extension The Palace knew.

  • Stephen says:

    Kerr’s dismissal had the effect of referring the resolution of the parliamentary conflict to the people via an election which was held about 6 weeks later. The result was a crushing defeat for Gough and Labor. This was the election Gough should have called when he was denied supply. Kerr corrected this error.

  • john.singer says:

    You omitted the “and a convention or legal provision that the Governor-General should take independent advice, possibly from the Chief Justice.” part of the quote.

    I remember the venomous debate at the time, whether the governor general was “permitted” to consult the Chief Justice?

    Sir John saved Australia from a complex Constitutional Crisis from which there was no known procedural remedy. He paid the price that brave men do – and it is high time we restored honour to his memory.

  • Doubting Thomas says:

    Your book should go a long way towards restoring Sir John’s reputation, or it would if it were not being effectively “cancelled” by their ABC and the rest of the usual suspects in the mainstream media. I loved it.
    It is perhaps Sir John’s greatest legacy that it was his courageous and honourable stance, both before and after the dismissal, that finally stripped the last shred of camouflage from the real, thoroughly despicable Gough Whitlam and, indeed, the ALP.

  • Peter OBrien says:

    Thank you DT. I am pleased you enjoyed it. You will know that I raise this issue not just as a matter of academic interest.

    As I say on the back cover blurb of the book:

    The Governor-General of Australia is not a mere figurehead. Governors-General possess real power which is given to them by the Constitution. It is intended that these ‘reserve’ powers should be used only very rarely. This book … warns that circumstances under which the use of any of the reserve powers may be called for, could very easily arise in the near future. Australia needs a Governor-General well versed in the nature of these powers and prepared to use them when necessary. And we need an informed public that is able to understand such action.”

    Government over-reach in relation to the WuFlu has already been well demonstrated. And arguably the Albanese government emissions reduction bill is too, as it threatens national security.

    I firmly believe we need to legislate as I have described to ensure the GG is not reduced to a mere cipher, as Kelly and co would like.

    • sabena says:

      Sorry Peter,but your argument doesn’t fly.
      Here are the reasons why:
      1.Section 1 of the Constitution establishes the Commonwealth of Australia as a representative democracy, as understood by British practice at the time.
      2.That means both the King or the Governor General,when exercising their constitutional functions,do so after receiving advice from their ministers,communicated in practice by the Prime Minister.
      3.The discretion to refuse to follow the advice of Ministers, leads in practice to a constitutional crisis as the King or Governor General must obtain alternative advice on which to act(in the case of Kerr,Fraser gave that advice).
      4.Whether in the circumstances the King or the Governor General is justified in refusing the advice depends on cirumstances, which must be serious.
      5.In the case of the appointment of or dismissal of the Governor General,the only circumstances which would suffice are the appointment of a Governor General who, if seeking election to parliament was disqualified by reason of s44 of the Constitution with the exceptions of subsections (iv) and (v),or while in office would become disqualified if a member of Parliament.The grounds for disqualification are,relevantly,
      “Any person who
      (i.) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or

      (ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or

      (iii.) Is an undischarged bankrupt or insolvent…….”

      Given what has happened in the Solomon Islands, perhaps the next constitutional crisis may arise from China seeking to bribe any Minister or the Governor General

  • Peter OBrien says:

    Paul Kelly, writing in today’s Australian provides yet more evidence that he does not understand our Constitution:
    “Yet the death of the Queen and proclamation of the King put on vivid display what many people had forgotten – that the Australian people have no say, no control and no influence over the appointment of their head of state.”
    The King is not appointed. He inherits his position by virtue of being next in line of succession. In this respect, the Australian people have exactly the same say in the monarch as the British people have. In any significant change to that system, we will be consulted as we were in the matter of the abdication of King Edward VIII or the change to the primogeniture rules.

  • john.singer says:

    @Peter O’Brien, with a now legislated target which will be unattainable, the circumstance of the Senate witholding Supply to force an ammendment to an existing legislation becomes an absolute possibility. This no doubt is why Republicans want to remove the Reserve Powers.

  • Searcher says:

    Whitlam knew that a Parliamentary election was immediately necessary. That is evident in his proposal to hold a half-Senate election. Not a half-Senate election, but a Parliamentary election, was needed. Whitlam was proposing to cheat the people of their right to constitutional government. That was sufficient reason for Whitlam’s being dismissed.

  • simonbenson65 says:

    Whitlam was the worst prime minister this country has ever had. That’s quite an accolade when you have comparisons like Rudd, Gillard & Turnbull. Kelly and other leftist revisionists love to reconstruct history. But one incontrovertible fact that the left have studiously avoided confronting is that Whitlam QC signed off on a joint opinion to the effect that the Governor-General has and can exercise the reserve power to dismiss the government of the day and that this was one way of getting rid of the McMahon Liberal government if push came to shove. Whitlam lied to the Australian people over his government’s dealings with Khemlani, telling the public all bets were off, while instructing his Cabinet to keep going. NSW Governor, Sir Philip Game’s dismissal of Jack Lang’s Labor government is a well-known local precedent. Whitlam’s dismissal stands as a high water mark in Australian political history.

  • Louis Cook says:

    Sir John Kerr was the right man at the right time in Australian history. He had some idea of his likely treatment after the ‘dismissal’ (how I hate to use that word) Prime Minister Whitlam’s authority to advise the Governor-General was withdrawn and Malcolm Fraser appointed until the Australian people had a say who will govern Australia. Thank you Peter O’Brien for your good works. Sir John Kerr rendered a service to all Australians by demonstrating the worth of The Australian Constitution and it is up to us, everyday Australians, (and Quadrant readers) to defend the instrument that keeps would-be tyrants in check.

  • Michael Waugh says:

    Thanks Peter. Your article is very helpful and a debate about the powers of the Governor-General and his/her role in our democracy is particularly important now. However, I think Kerr was a disgrace. I accept that the government could not govern without supply and Kerr was faced with a crisis, but he was also faced with an elected government, indeed, one that had been elected twice in under 3 years. The beauty of our constitutional monarchy is that we have, through the blood of history, a weak legal head of government, hemmed in by convention to be far above and uninterested in actual government policy, and a real or actual or de facto head of government controlled by his/her party room and the House of Representatives. The Prime Minister is far more important than the GG. Kerr was duty bound to warn Whitlam : “if you cannot get supply by such ‘n such a date, you must call an election, or I’ll be forced to withdraw your commission”. The ambush was so grubby, Kerr deserves his ignominy.

    • Peter OBrien says:

      Michael, thank you for your comment. Space does not permit a detailed reply which you can find in my book. Whitlam knew he was risking dismissal. He just thought he could intimidate Kerr. Had Whitlam backed down at the last minute, ie on 11 November, Kerr would have allowed him to go to the election as PM.
      However, let me make one other point. In Australia we do not elect governments. We elect Parliaments from among whose ranks the Governor General appoints a government.

  • Michael Waugh says:

    I hesitate to disagree with you Peter because I have read much that you have written with much admiration. I would expect Whitlam did know he courted dismissal without supply, but he surely would not have expected ambush, not at that level of government. The odd inexperienced young barrister might try some grubby trick ” out the back in front of the Js” , but not if you’re appearing in the superior courts, much less if you’re the representative of the Crown in the Commonwealth. To have the elected government of Australia dismissed by ambush by the representative of the crown of a foreign country was fodder to republicans. Kerr did more harm to our wonderful constitutional system than anyone, before or since. It does not matter what your view of Whitlam was, he was the elected PM. Formal written warning was essential.

  • Peter OBrien says:

    Michael, we will have to agree to disagree on the question of the warning. However, in relation to your point about Whitlam being forced to a third election in three years, I agree entirely that he had every right to feel aggrieved and I make that point in my book. But the fact is, he was going to an election whether he liked it or not and it was not Kerr that put him in that position. It was Fraser. Even Kerr’s most inveterate critic, Paul Kelly concedes that ‘no Governor-General could have accepted Whitlam’s advice for a half-Senate election’ on 11 November.

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