John Kerr and the Dismissal: A Response to Jenny Hocking

Australian historians – Professor Jenny Hocking especially – have largely taken Gough Whitlam’s side in his dismissal by Governor General Sir John Kerr in November 1975. Sir David Smith played a key role in this controversial affair – as the Governor General’s Official Secretary, serving over his time at Yarralumla Sir Paul Hasluck, Sir John Kerr, Sir Zelman Cowen, Sir Ninian Stephen and Bill Hayden. David Smith believes much that has been written about the Dismissal is inaccurate and will explain what did happen at the time, as he witnessed it. Sir David Smith addressed The Sydney Institute on Wednesday 30 January 2013 to put his case. 

JOHN KERR AND THE DISMISSAL: A RESPONSE TO JENNY HOCKING

DAVID SMITH

I thank The Sydney Institute for giving me this opportunity to respond to the address which Professor Jenny Hocking gave here on 5 September 2012 to mark the publication of Gough Whitlam: His Time, the second volume of her biography of the former Prime Minister.  My brief is to speak about her treatment of Sir John Kerr and the Dismissal – a comprehensive review of her book by John Paul will appear in a forthcoming issue of Quadrant.

In her opening remarks last September, Professor Hocking spoke of her commitment, as an academic, to Australian political history. Both in her book and in her address, she recalled advice that Mr Whitlam had given in 2001 to a group of post-graduate history students at the University of Melbourne. Gough Whitlam told his audience of historians that they should turn to the contemporaneous documentary record as their basic primary source.  His advice to them was:

Unpalatable truths will not diminish, but will rather enrich our common commitment to the research, the writing, the reading and the understanding of Australian history.  The best history will always be based on the documents.  Go to the documents.

If Mr Whitlam and Professor Hocking had been serious about turning to the documentary record as their basic primary source, they would have started with an article by Dr. H V Evatt entitled “The Discretionary Authority of Dominion Governors” in the January 1940 issue of The Canadian Bar Revue.  It shouldn’t have been too difficult for Professor Hocking to find out what Dr Evatt had to say in 1940, for it is quoted and footnoted in the 1991 edition of Odgers’ Australian Senate Practice. It is also a headnote at the beginning of Chapter 10, entitled “The Dismissal: setting the record straight”, in my book Head of State: the Governor-General, the Monarchy, the Republic and the Dismissalpublished in 2005.  And I know that Professor Hocking read my book as she was writing her second volume on Gough Whitlam because she sent me an email to tell me so.

Dr Evatt, who was to become the national leader of the Australian Labor Party, was still a Justice of the High Court of Australia when he wrote:

So far as Australia is concerned, a long course of practice tends to negative the proposition that the Governor-General of the Commonwealth of Australia or the Governor of a State is a mere automaton in the hands of Ministers who have lost, or are about to lose, the support of Parliament.

Evatt’s observation about the vice-regal role was supported by my second headnote from J R Odgers, a most distinguished Clerk of the Senate, who wrote in the 1976 edition of Odgers’ Australian Senate Practice that:

Any contention that there is a convention that the Senate should not defer or reject money Bills is insupportable.

Yet, despite her professed adherence to Whitlam’s simple observation that unpalatable truths will enrich our understanding of Australian history, Professor Hocking has been most selective in going to the documents and has rejected those that did not suit her purpose. In particular, and in company with all other writers and commentators, from 1975 onwards, she has shied away from her responsibility to reveal the greatest unpalatable truth of all about Mr. Whitlam in connection with the Dismissal, and I shall return to it in my concluding remarks this evening.

When Professor Hocking’s second volume was launched, its immediate effect in the media was to promote former Justice, and later Chief Justice, of the High Court, Sir Anthony Mason, as the principal villain, displacing Sir John Kerr and Sir Garfield Barwick. The media had a field day with Professor Hocking’s apparent discovery that, as well as Sir Garfield Barwick, Sir Anthony Mason had been consulted by Sir John Kerr in the days leading up to the Dismissal, while ignoring the fact that this had been disclosed in January 1994 by Dr Gerard Henderson in an article in The Sydney Morning Herald, following an interview with Sir John Kerr in the late 1980s, and again by Sir Garfield Barwick and journalist Paul Kelly in their respective books in 1995. Despite these disclosures many years earlier, every newspaper article and every radio interview with Professor Hocking proceeded on the basis that this was a new discovery.

This had at least one advantage, in that Mason, who hitherto had remained silent and had enjoined Kerr not to mention his name or his involvement, was goaded into issuing a seven page press statement. With one exception, Mason’s statement tallies with what Kerr had written in his memoirs and in his private papers. In particular, Mason confirmed what both Kerr and Barwick have said, namely, that Kerr did not seek from either of them advice as to what he should do to end the political crisis, nor did they give such advice, but that they confirmed that the decision that the Governor-General had reached as to what he must do was legally correct and consistent with his constitutional duty. Regrettably, Professor Hocking did not make that distinction.

The one exception is Mason’s claim that he advised the Governor-General to warn the Prime Minister that he contemplated dismissing him and his government. Kerr has not said this in either his biography or his personal papers, nor did he mention this in his interview with Gerard Henderson. I cannot say where the truth lies in this matter as I was not present at any conversations between Kerr and Mason, but I do know that Mason does not have a track record for accuracy in speaking about the office of Governor-General, or indeed about the Australian Constitution.

In May 1998, former Chief Justice Mason told participants in an Australian National University law school seminar that he had discovered hidden in our Constitution what he described as a “robust” constitutional convention relating to the Governor-General. The trouble is that there is no such convention as Mason described, and he based his so-called discovery on precedents that have never occurred. He told his audience that when the Queen arrived in Australia she took over the Governor-General’s duties and the Governor-General ceased to function. This is not true – it has never happened on any of the Queen’s sixteen visits because the Australian Constitution does not allow it.

To bolster his case, Mason told his audience that his so-called robust constitutional convention prevented the Governor-General from appearing in public with the Queen. This also is not true, and Governors-General have frequently accompanied the Queen at public functions. One of the most significant occasions was the opening of the new Parliament House in 1988 by the Queen, with the then Governor-General, Sir Ninian Stephen, one of Mason’s former High Court colleagues, seated on the dais with the rest of the official party, and with the then Chief Justice, Sir Anthony Mason, present as a honoured guest and seated in the audience in the very front row. So much for selective memory.

Professor Hocking has mocked Kerr for being concerned not to have the Queen and Buckingham Palace embroiled in an Australian political crisis, and she has implied that he feared for his own position, but the Governor-General’s position was never at risk. Whitlam had of course threatened the Governor-General with dismissal, and he did so in the presence of a foreign visitor. The occasion was the Governor-General’s state dinner in honour of the Malaysian Prime Minister, Tun Abdul Razak, who visited Australia in the midst of the supply crisis. The Governor-General, Whitlam, the Malaysian Prime Minster and their spouses had gathered in the Governor-General’s study at Government House, Canberra, to await the arrival of the other guests. Tun Abdul Razak asked how the supply crisis would end and Whitlam responded by saying it would probably end in a race to see which one of them could sack the other first. This remark, made to a foreign Prime Minister in the Governor-General’s presence and under the Governor-General’s roof, so shocked the visitor that by morning it had gone right through Canberra’s diplomatic corps and had been reported in the media.

However, Kerr had nothing to fear from Whitlam’s threat. Professor Hocking seems to have forgotten that in such a race the Governor-General does not have to go to the Palace. But Kerr was absolutely right to prevent the Queen from being drawn into the crisis, for that would have turned a political crisis into a constitutional crisis, and it was his duty to prevent that from happening.

Whitlam certainly would have moved to have the Governor-General dismissed had he been given any warning of the possibility of his own dismissal. Even as he was being handed his letter of dismissal he said, “I must get in touch with the Palace at once,” and he did telephone the Palace later that day. We also know that Labor’s Speaker of the House of Representatives, Gordon Scholes, wrote to the Queen to ask her to over-rule the Governor-General, to halt the democratic election process which he had set in train under Australian law, and to restore Whitlam to office as Prime Minister.

Mr Speaker was reminded by Buckingham Palace that the Australian Constitution placed all constitutional matters squarely in the hands of the Governor-General in Canberra, and that the Queen had no part in the decisions which the Governor-General must take in accordance with that Constitution. That, surely, put an end to any claims that Australia’s sovereignty, independence and national identity were centred on Buckingham Palace.

It also tells us something about the intellectual dishonesty of those who want to remove the Queen from our Constitution, and who profess to want Australia’s constitutional affairs to be entirely in Australian hands, which they clearly are under our present Constitution and system of government, yet immediately appeal to the Monarch in Britain as soon as a decision taken in Australia by an Australian Governor-General goes against them.

Although Whitlam was constantly reminding the Governor-General, both privately and publicly, that he could act constitutionally only on the advice of his prime minister, the existence of the Governor-General’s reserve powers would have been, or should have been, well known in Labor circles. One of the most definitive and scholarly works on the subject, entitled The King and His Dominion Governors, had been written in 1936 by Dr H V Evatt.

Professor Hocking made much of the fact that Whitlam had told the Governor-General that his Prime Minister was his only formal adviser; that his only legal advisers were the Attorney-General and the Solicitor-General; and that the Governor-General was not entitled to seek external advice. Let’s look at these three propositions in turn.

In an article in The Canberra Times last September, entitled “Advising a Governor-General”, Professor John Nethercote, Adjunct Professor in the Public Policy Institute at the Australian Catholic University, Canberra, pointed out that “there’s more to the issue than some Whitlam partisans are willing to admit”. In his opening paragraphs Professor Nethercote wrote:

There is a danger that the furore surrounding Sir Anthony Mason’s activity in events leading up to Sir John Kerr’s decision to remove the Whitlam government on Remembrance Day 1975 will obscure some important matters concerning the manner in which governors-general fulfil their responsibilities.

There has been a concerted but ill-informed effort to suggest that a Governor-General can only act upon the advice of his or her official advisers, ministers of the Crown appointed under section 64 of the Constitution, and that only ministers can tender advice to the Governor-General.

Professor Nethercote went on to distinguish between advice with a capital “A” and advice with a small “a”.  Capital “A” advice from a minister to a Governor-General is not optional and the Governor-General does not have a choice about accepting it.  His only constitutional duty is to accept and act on such advice.

Professor Hocking has portrayed the Governor-General as an “appointed official” with no option but to accept all ministerial advice, but she is wrong. As Professor Nethercote has pointed out, there is also advice with a small “a”. In such cases a Governor-General does have a choice, may even have several options, and may wish to seek advice from others apart from ministers.  Professor Nethercote gives many examples where governors-general and state governors have quite properly sought outside advice before deciding on their course of action, and he finds that Kerr clearly had grounds for looking elsewhere as he was faced with the parliamentary crisis of 1975. Professor Nethercote concludes his article with these words:

… it should be underlined that whatever views were put to [the Governor-General] by state governors or members of the High Court, or anyone else for that matter, were nothing more than opinions he was free to adopt or reject.  However eminent, people so consulted were not in the relevant sense advisers to the Governor-General.

I turn next to Kerr’s consultations with Barwick. Professor Hocking makes much of the fact that Whitlam had advised Kerr that he was not to seek other advice, particularly not from the Chief Justice. That advice was a bit rich in the light of Labor’s quite different view in 1951, when Prime Minister Menzies sought a double dissolution from Governor-General Sir William McKell. Labor’s view then was that the Governor-General was not obliged to accept the Prime Minister’s advice and indeed should not accept it unquestioningly; that he should not simply accept the advice of the first two law officers of the Crown; that he should instead seek independent legal advice; and that he should seek it from the then Chief Justice of the High Court, Sir John Latham.

In an article entitled “On Advice from the Chief justice” in the July 1985 issue of Quadrant, Professor Don Markwell, a former Australian Rhodes Scholar and at the time a fellow and tutor in politics at Oxford, wrote that at least two other chief justices, in addition to Sir Garfield Barwick, have given advice to governors-general on the exercise of their vice-regal powers. They were Sir Samuel Griffith and Sir Owen Dixon. These three chief justices gave their advice, when it was asked for, to no less than seven governors- general and one state governor. They were Lord Northcote, Lord Dudley, Lord Denman, Sir Ronald Munro Ferguson, Lord Casey, Sir Paul Hasluck, Sir John Kerr and Governor of Victoria Sir Dallas Brooks. Professor Markwell also concluded that at least one other Chief Justice, Sir John Latham, and four justices of the High Court, Sir Edmund Barton, Sir Keith Aickin, Richard O’Connor and Dr H V Evatt, would have agreed with the proposition that such consultation was permissible. The Whitlam falsehood that only one Governor-General, Sir Ronald Munro Ferguson, had consulted with a Chief Justice in 1904 was finally laid to rest.

More recently, in an article entitled “Mason’s role in the 1975 dismissal ‘unprecedented’?  Hardly …” and published on 31 August last year in The Conversation, a scholarly academic journal, Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney, gave further details about the examples unearthed in 1985 by Professor Markwell, and went on to give even more examples of vice-regal/chief justice consultations at the state level.  In Professor Twomey’s view:

… not only was it not “unprecedented” or “unconventional” for a High Court judge to have advised a vice-regal representative on the extent of his or her powers back in 1975, it is actually quite hard to find an occasion when judges have not been involved in advising upon the exercise of the reserve powers.  …  Looking at Sir Anthony Mason’s informal advice to Sir John Kerr through post-1975 eyes is unfair.  In the context of the time, his actions were consistent with those of his predecessors or his colleagues.

My third comment on the subject of advice is the downright lie put about by Whitlam, and accepted by Professor Hocking as true, that Kerr asked for, and then rejected, a joint legal opinion from the first two law officers of the Crown – the Attorney-General Kep Enderby and the Solicitor-General Sir Maurice Byers. The true position is set out in my book, but Professor Hocking chose to ignore it. Let there be no mistake about this issue – there was no such joint legal opinion.

As the 1975 crisis continued, and as calls mounted in the Parliament and in the media for the Governor-General to do something to resolve it, Kerr asked Whitlam for a joint legal opinion from the Attorney-General and the Solicitor-General.  On 6 November, the Attorney-General called on the Governor-General with a document that had been prepared by the Solicitor-General. At the top it was headed “Joint Opinion”. At the bottom it had been signed by the Solicitor-General, and there was a place for the Attorney-General to add his signature. The Attorney-General told the Governor-General that there were parts of the opinion with which he did not agree and that he could not sign it.  Instead, he took out his pen, wrote the word “Draft” at the top of the document, crossed out the Solicitor-General’s signature – an insult that caused Sir Maurice Byers great offence – and handed the now worthless document to the Governor-General.  Enderby went on to say that he proposed to prepare another joint legal opinion with which he could agree and which he could sign, and that he would send it to the Governor-General as soon as possible. That joint legal opinion never came.

I have described the dismissal as a political crisis because it had its origins in the Parliament, and its resolution, in the first instance, was in the hands of the Prime Minister and the Leader of the Opposition. But they were two stubborn and arrogant men who were prepared to see the collapse of our system of government and of our economy in their respective struggles for dominance over the other. So it was left to the Governor-General, as the constitutional umpire, to break the deadlock and set in train a process that would put the issue to the people for them to decide. And in a parliamentary democracy nothing could be more democratic than a national general election for both houses of the Parliament.

Under our Constitution, it is the Governor-General who has the power to dissolve Parliament and order elections, but he or she can only do so on ministerial advice. Once Kerr had established, over weeks of discussion with Whitlam, that he would never recommend an election of the kind that could resolve the supply crisis, the Governor-General had no alternative but to dismiss him and appoint a Prime Minister who would immediately recommend the dissolution of Parliament and the holding of a national general election of a kind that would resolve the supply crisis. Whitlam could have gone into the 1975 election as Prime Minister but he chose not to.

As soon as Fraser had been sworn in, the Governor-General asked me to telephone Buckingham Palace and let the Queen’s private secretary know what had just occurred. The new Prime Minister also asked me if I would convey two messages on his behalf. The first was to the secretary to the Department of the Prime Minister and Cabinet, John Menadue, to tell him what had happened and to say that his new Prime Minister wished to see him in his office at Parliament House right away. The second was to Ewart Smith, deputy secretary, Attorney-General’s Department, to tell him that the new Prime Minister wanted a proclamation prepared immediately for the purpose of dissolving both Houses of the Parliament in accordance with section 57 of the Constitution.

I returned to my office to make the telephone calls. My first call was to Menadue at his desk in the department, using his direct line. As soon as I told him that the Governor-General had dismissed Whitlam as Prime Minister, Menadue’s immediate response was a question – “He’s done it already?” I answered his question and went on to say that Fraser had been sworn in as Prime Minister, that he was now on his way back to his office at Parliament House, and that he wished to see him there right away.

Anyone who was aware of the speculation that was abroad at the time, to the effect that Whitlam had been courting his own dismissal as his best prospect of winning the ensuing election with a sympathy vote, will recognise the significance of Menadue’s immediate question to me on being told of Whitlam’s dismissal. And if Menadue had been thinking about the possibility, and particularly the timing, of a dismissal, so had Whitlam, because on 15 October 1975, the very day that the Opposition declared its intention to block supply in an attempt to send the Whitlam Government to the people, Whitlam had told the House of Representatives, in reply to a Dorothy Dix question from one of his own back-benchers:

As honourable members will not be surprised to know, in the last few weeks I have been carrying out some research into the general question of dismissals of governments or rejections of supply and the like.

Throughout the supply crisis the Whitlam Government’s attack was on the Senate’s refusal to pass the Labor Government’s budget. Whitlam’s view was that the Constitution and its associated conventions vested control over the supply of money to the government in the House of Representatives, and that the actions of the Senate in blocking that supply of money were a gross violation of its role in the Parliament. This is not true.

As the supply crisis worked its way through the Parliament, the High Court of Australia was also given the opportunity to express its view on whether the Senate had the power to block supply. On 30 September 1975 the High Court handed down its judgement in Victoria v the Commonwealth. Four of the six judges who heard the case held that, except for the constitutional limitation on the power of the Senate to initiate or amend a money bill, the Senate was equal with the House of Representatives as a part of the Parliament, and could reject any proposed law, even one which it could not amend. The judges who expressed these opinions were Sir Garfield Barwick, the then Chief Justice; Sir Harry Gibbs and Sir Anthony Mason, who each, in turn, became Chief Justice; and Sir Ninian Stephen, who later became Governor-General.

As these judgements were of crucial importance to the debate then raging in the Parliament, relevant parts of the judgements were incorporated in Hansard on 30 October 1975.  Yet still the media, and particularly the Canberra Parliamentary Press Gallery, with few exceptions, kept silent on this issue, and Whitlam has continued to rail against the Senate.  As a result, many Australians, including Professor Hocking, still believe, quite wrongly, that the Senate has no right to block supply.

I said when I began that I would end with the greatest unpalatable truth of all about Whitlam in connection with the Dismissal. In doing so, I shall present it to you this evening exactly as I wrote it in my book more than seven years ago, for I quoted then the words that Whitlam and Lionel Murphy had used to describe it to the Parliament more than forty-five years ago.

I begin the extract from my book:

On 12 May 1967, Senator Lionel Murphy, then Leader of the Labor Opposition in the Senate, had this to say in the Senate:

The Opposition opposes this Bill.  There is no tradition, as has been suggested, that the Senate will not use its constitutional powers, whenever it considers it necessary or desirable to do so, in the public interest.  There are no limitations on the Senate in the use of its constitutional powers except the limits self imposed by discretion and reason.  There is no tradition in the Australian Labor Party that we will not oppose in the Senate any tax or money Bill, or what might be described as a financial measure.  Our tradition is to fight, whenever and wherever we can, to carry out the principles and policies for which we stand.  We are not circumscribed by any notions which arose elsewhere in connection with other institutions. … We in the Senate are democratically elected by the people of the States.  If we consider it to be in the public interest that a measure be rejected, who gives us the right to refrain from doing so under some pretended notion that the Senate cannot reject a tax or money Bill?

On 12 June 1970, the then Leader of the Opposition, Gough Whitlam, had this to say in the House of Representatives:

The Prime Minister’s assertion that the rejection of this measure does not affect the Commonwealth has no substance in logic or fact. … The Labor Party believes that the crisis which would be caused by such a rejection should lead to a long term solution.  Any Government which is defeated by the Parliament on a major taxation Bill should resign. … This Bill will be defeated in another place.  The Government should then resign.

On 18 June 1970, Senator Murphy had this to say in the Senate:

For what we conceive to be simple but adequate reasons, the Opposition will oppose these measures.  In doing this the Opposition is pursuing a tradition which is well established, but in view of some doubt recently cast on it in this chamber, perhaps I should restate the position.  The Senate is entitled and expected to exercise resolutely but with discretion its power to refuse its concurrence to any financial measure, including a tax bill.  There are no limitations on the Senate in the use of its constitutional powers, except the limitations imposed by discretion and reason.  The Australian Labor Party has acted consistently in accordance with the tradition that we will oppose in the Senate any tax or money Bill or other financial measure whenever necessary to carry out our principles and policies.  The Opposition has done this over the years, and in order to illustrate the tradition which has been established, with the concurrence of honourable senators I shall incorporate in Hansard at the end of my speech a list of the measures of an economic or financial nature, including taxation and appropriation Bills, which have been opposed by this Opposition in whole or in part by a vote in the Senate since 1950.

At the end of his speech Senator Murphy tabled a list of 169 occasions when Labor Oppositions had attempted to oppose money bills in the Senate for the sole purpose of forcing the government of the day to face the people at an early election.

Two months later, on 25 August 1970, the Labor Opposition launched its 170th attempt since 1950.  On that occasion, Whitlam had this to say in the House of Representatives:

Let me make it clear at the outset that our opposition to this budget is no mere formality.  We intend to press our opposition by all available means on all related measures in both Houses.  If the motion is defeated, we will vote against the Bills here and in the Senate.  Our purpose is to destroy this Budget and to destroy the government which has sponsored it.

As Jack Kane, one-time federal secretary of the Australian Democratic Labor Party and former DLP Senator for New South Wales, wrote in 1988:

There is no difference whatsoever between what Whitlam proposed in August 1970 and what Malcolm Fraser did in November 1975, except that Whitlam failed. … Senator Murphy, for Whitlam, sought the votes of the DLP senators, unsuccessfully.  That is the only reason why Whitlam did not defeat the 1970 budget in the Senate and thus fulfill his declared aim  to destroy the Gorton government.

That concludes the extract from my book.

So when Whitlam told the nation that the Senate’s action in refusing supply to his Government was unprecedented, he may literally have been telling the truth, but he was not telling the whole truth.  While 1975 was the first successful attempt, the truth of the matter is that, over a period of twenty years, Labor had established 170 precedents, albeit unsuccessful ones, for what Fraser did in 1975, and Whitlam himself had been the architect of the last two of those attempts against the Holt Government in 1967 and against the Gorton Government in 1970. Clearly, 1975 was a case of the biter bitten.

I have put this information on the public record on several occasions, in speeches, in articles and in my book, but the commentariat has steadfastly refused to share it with the Australian people. Having put Whitlam on a pedestal they will not allow his image to be tarnished by unpalatable truths.

As for Professor Hocking, she also had this information after reading my book. My references to the Whitlam and Murphy speeches in the Parliament were footnoted so that she could have gone to the documents and checked Hansard for herself, had she wished to.  Despite her approval of Whitlam’s advice to the history graduates in 2001, that they should go to the documents, and that unpalatable truths will not diminish, but will rather enrich our common commitment to the research, the writing, the reading and the understanding of Australian history, this was one unpalatable truth that this academic historian could not bring herself to share with her readers.  After all, she was not writing a biography, she was writing a hagiography.