The Dismissal- Different Views

Dr Gerard Henderson is the executive director of The Sydney Institute, a columnist with The Weekend Australian and a political commentator. In 1987, Gerard Henderson interviewed Sir John Kerr for two articles in The Weekend Australian. He was also a contributor to Sybil Nolan’s edited collection The Dismissal: Where were you on November 11, 1975? (MUP). On Monday 9 November 2015, Gerard Henderson joined Professor Anne Twomey, Paul Kelly and The Hon John Howard at The Sydney Institute to discuss the constitutional ramifications of the dismissal of Prime Minister Gough Whitlam by Governor-General Sir John Kerr.

REFLECTIONS ON THE DISMISSAL

GERARD HENDERSON

As we all know, Governor-General Sir John Kerr’s action in dismissing Gough Whitlam’s Labor government took place on Tuesday 11 November 1975 – 40 years ago next Wednesday.  However, as Paul Kelly and Troy Bramston remind us in their important and considered book The Dismissal: In The Queen’s Name (Viking, 2015), Sir John Kerr made up his mind as to how precisely he would act to resolve the deadlock between the Senate and the House of Representative on Sunday 9 November 1975 – 40 years ago today.

In November 1975, I was on the staff of the Politics Department at La Trobe University in Melbourne.  My friend and colleague Hugo Wolfsohn was Professor of Politics and head of the department.  Wolfsohn was one of the few intellectuals in the land who believed that the Whitlam government was monumentally incompetent and deserving of removal. I agreed.  But neither Wolfsohn nor myself supported Opposition leader Malcolm Fraser’s drive to block supply and force an early election.  We believed that the Coalition should be patient and bide its time until the Whitlam government disintegrated or the next election took place.

But, of course, it was not to be. As I relate in my chapter in Sybil Nolan’s edited collection The Dismissal: Where were you on November 11, 1975? (MUP), which was published in 2005 and has now been re-issued,  my friend and colleague Professor Joan Rydon knocked on my door shortly after lunch on 11 November 1975 and declared “Kerr’s sacked Whitlam”.  Rydon, then, was a Labor voter and Whitlam supporter.  Hugo Wolfsohn, Joan Rydon and myself shared a car home that evening – it was a lively discussion.

In early 1975, I had been interviewed for a job by Fraser – I was one of three applicants for two positions.  Petro Georgiou and Stephen Vaughan got the nod. However, I valued the opportunity to have a lengthy discussion with Fraser during his early period as Liberal Party leader.  I was friendly with former Melbourne University academic and Liberal MP Tony Staley, then one of Fraser’s key supporters, who had put forward my name for a possible position in the Opposition leader’s office.

From early 1976 to late 1979 I worked for Kevin Newman, who had prevailed in the Bass by-election in June 1975 and become a minister in the Fraser government.  During the period, I got to know many of the key players in the Dismissal.  Then, in our time at The Sydney Institute, Anne Henderson and I have invited many of those involved in the events of 1975 to address The Sydney Institute on a range of issues.  The list includes Malcolm Fraser, Gough Whitlam, Sir Anthony Mason and Sir David Smith.  Sir Paul Hasluck also addressed the Institute.

In recent years, the Institute provided a platform for Jenny Hocking, Gough Whitlam’s biographer, along with a right of reply to David Smith.  As Kelly/Bramston point out, The Sydney Institute Quarterly subsequently provided an opportunity for David Smith and one-time Fraser staffer Dale Budd to state their case on the interaction between the Opposition leader’s office and Government House on 11 November 1975.  See The Sydney Institute Quarterly Issue 27 January 2006 and Issue 29 August 2006.

In 1987 I met John Kerr when I interviewed him for two articles which I wrote to The Weekend Australian. I was one of the few friends/associates who had lunch with the former governor-general at his office in Sydney on a regular basis along with former trade union official Laurie Short and former judge Ken Gee.  Sir John and Lady (Anne) Kerr came to our house in Hornsby for lunch on one occasion.  And the Kerrs invited us to a number of their Christmas parties. I reflected that, apart from myself, all the males in the room either were, had been, or thought they should have been or might become become a chief justice of the High Court or the Supreme Court of New South Wales.  They included Sir Garfield Barwick, Sir Anthony Mason, Sir Harry Gibbs, Sir Laurence Street, Murray Gleeson QC and Bob Ellicott QC. All make an appearance – to a greater or lesser extent – in the Kelly/Bramston book.

The occasion of The Dismissal’s 40^th anniversary has seen the publication of two books and an upgraded edition of another. In my opinion, the important new material is as follows:

In The Dismissal Dossier: Everything you were never meant to know about November 1975 (MUP, 2015), Jenny Hocking quotes from recently released interviews which Malcolm Fraser and Reg Withers did with Labor parliamentarian and Whitlam government minister Clyde Cameron in 1987 and 1997/1998 respectively.  Some years earlier, in Gough Whitlam: His Time (MUP, 2012), Dr Hocking revealed details of the Kerr Papers which documented Sir John’s detailed account of his discussions with Anthony Mason leading up to the Dismissal.

In the January 1994 ABC TV documentary Sir Garfield Barwick: A Life, Barwick had told presenter Bruce Donald about Mason’s involvement in the events of Remembrance Day 1975.  This freed me to reveal that Kerr had told me (during our private lunches in the late 1980s) of Mason’s involvement in 1975 – but requested that I not reveal this while Mason remained Chief Justice of the High Court.  Once Barwick had spoken to Donald, I no longer felt bound by my agreement with Kerr (who died in 1991).

My article was published in the Sydney Morning Herald on 8 January 1994. I sent a copy of my piece to Anthony Mason’s office before it was published – this was acknowledged by Helen Holmes who advised me that the Chief Justice thanked me for the courtesy of writing to him in advance.  A couple of years later, at a personal meeting, Mason expressed surprise to me that I had not revealed the Kerr/Mason discussions some time earlier.  I told him that I had honoured my promise to Kerr.  But we did not discuss matters beyond that.

In The Dismissal: In The Queen’s Name, Paul Kelly and Troy Bramston also cover the Cameron interviews with Withers and Fraser.  Moreover they break ground with their access to Barwick’s Papers and Paul Hasluck’s account of his discussion in March 1977 with Sir Martin Charteris, the Queen’s private secretary.  Kelly/Bramston also cover the Kerr Papers in considerable detail.

In response to the new material, and on the occasion of the 40^th anniversary of the Dismissal, I make the following observations:

• Sir John Kerr is the target of Jenny Hocking’s book. The Kelly/Bramston work is fairer to Kerr and more critical of Whitlam and Fraser – but the authors conclude that “the final responsibility” for the events of 11 November 1975 “can only rest with Kerr as governor-general”.

In my view, the responsibility for the Dismissal turns on an arrogant and stubborn Malcolm Fraser who was determined to block supply and an arrogant and stubborn Gough Whitlam who demanded that he be allowed to govern without supply.

In my column in The Weekend Australian last Saturday, I referred to a part of the Hasluck note of his discussion with Charteris which is not referred to in Kelly/Bramston. Hasluck is generally regarded as having disapproved of Kerr’s actions leading up to 11 November 1975. Yet in his discussion with Charteris, Hasluck said that there was no doubt in his mind that Kerr had the power to act as he did and that “the success of his action was the final proof of the fact”.  In other words, in Paul Hasluck’s view, there was no coup d’etat – constitutional or otherwise.

• In the 1980s Malcolm Fraser co-operated with Philip Ayers in the writing of Malcolm Fraser: A Biography (Williams Heinemann Australia, 1987). In the lead up to publication, Ayers wrote to Kerr’s office seeking permission to quote from John Kerr’s Matters for Judgment: An Autobiography (Macmillan, 1978). Ayers’ letter included the following sentence: “Nothing in my chapter on the constitutional crisis contradicts Sir John’s account.”

This statement was not true. The biography carried, for the first time, Fraser’s allegation that Kerr had phoned him in the morning of 11 November 1975 – between 10.05 am and 10.30 am – advising of his intention to dismiss Whitlam.  In other words, Fraser declared that he had been tipped off by Kerr about the Dismissal.

In order to believe what Fraser told Ayers in in the mid-1980s, plus what he told Cameron in 1987, plus what he wrote (with Margaret Simons) in Malcolm Fraser: The Political Memoirs (MUP, 2010) – you have to disbelieve what he said in November 1975 and for a decade after that.

In his memoirs, Fraser acknowledged that his memory was “notoriously fallible”.  That’s a kind interpretation.  The tough-minded assessment of the many falsehoods in Malcolm Fraser: The Political Memoirs is that the former prime minister was consistently untruthful.

• In any event, there is no reason to believe what Fraser told Cameron in 1987, about being tipped off by Kerr, on the understanding that he could not be cross-examined on his testimony while he was alive. Likewise with the sworn statutory declaration on this matter which Fraser left to be discovered after his death. Such declarations are all but worthless.  Fraser’s recall in 1987 and 2010 of what happened in 1975 would not be strong testimony – even if he had a good memory and had a reputation for truthfulness. Fraser had neither.

It’s much the same with the hand-written note which Fraser said he made when Kerr phoned him around 10 am on 11 November 1975 – allegedly laying down conditions for a caretaker government.  In the early 1990s, Fraser told me that he had thrown out the note. He told Kelly/Bramston in 2013 that he subsequently found it.  It is re-produced in Fraser’s memoirs and in the Kelly/Bramston book.

In my view, this document, which is in the Fraser Papers, should be tested forensically. To the untrained eye, the notes on the top half of the paper – which reveal details of a Kerr/Fraser discussion – are quite distinctly different from those at the bottom which purport to the date and time of the alleged phone conversation.  Moreover, the year seems to have been amended from 1985 to 1975.  Fraser was capable of post-dating a document

Kerr always maintained that the terms he laid down as a requirement for swearing in Fraser as a caretaker prime minister were stated when they met in Government House around 1 pm – not on the phone at around 10 am. Kerr’s position was that the earlier phone call was merely to check whether the Opposition joint party room, which was to meet that morning, was intent on continuing to block supply. It was.

Bob Ellicott, who was in the room when the phone conversation took place, has told me that it did not last long enough for Kerr to have laid down to Fraser a list of six requirements.

• To believe what Reg Withers told Clyde Cameron about the alleged tip-off, you have to accept the veracity of Withers’ verbal recall of an event which happened three decades previously. And you have to wonder why Withers was not prepared to be cross-examined on this memory during his life time. It’s a cowardly way to criticise another – an attack from the grave.

• It is not clear why the National Library of Australia entrusted such interviews to Clyde Cameron – who was a bitter hater (of Kerr among others) and who was known to be, well, economical with the truth himself.

• Sir Anthony Mason’s role in the Dismissal was known, if not in complete detail, in January 1994 due to what Barwick told Bruce Donald in the 1994 TV documentary and my account of what Kerr had told me some years earlier. Yet the matter was not even discussed in detail until the publication of the second volume of Hocking’s biography about Whitlam. As Kelly/Bramston point out, those who comment on, or readily criticise, Kerr and Barwick say little, if anything, about Mason’s role in the Dismissal. It would seem that Sir Anthony’s “progressive” views on native title and all that engendered a state of denial about his role in the Dismissal which lasted until recent times.  It’s a matter of “Don’t talk about the fact that in 1975 Mason essentially agreed with Kerr and Barwick”.

• The only really useful and plausible recollections of those involved in the Dismissal are of those who had – and left – contemporaneous notes. Contemporaneous notes were made by the likes of John Kerr, Garfield Barwick and Paul Hasluck – but not by Malcolm Fraser, Reg Withers, Fraser staffer Dale Budd or, it seems, Anthony Mason. Memory does not good history make. Some people have a clear recall of events which never happened.

• The Kelly/Bramston book demolishes Jenny Hocking’s undocumented allegation that Buckingham Palace was involved in the Dismissal. If anything, the Queen and her advisers did not want there to be a constitutional stand-off in Australia. It was all too messy, from the Palace’s point of view.

• The Kelly/Bramston book also demolishes Jenny Hocking’s thesis that if Kerr had granted a half Senate election to Whitlam – to take place on 13 December 1975 – this would not have resolved the issue. In fact, supply was destined to run out at the end of November. Moreover, as even Hocking acknowledges, the prospect of Labor winning a Senate majority in 1975, after a half-Senate election, was very only ever a “slight possibility”.

• Neither Kelly/Bramston nor Hocking refer to the much neglected book by Anton Hermann titled Alan Missen: Liberal Pilgrim (The Poplar Press, 1993). Missen was at the centre of the assertion that if Kerr had not dismissed Whitlam on 11 November 1975, he – and a couple of other Liberal senators – would have deserted Fraser and passed supply. As Hermann documents, Missen wrote a contemporaneous note of the events on 14 October 1975:

It was very clear to me that I would have nobody who would stand up to the ultimate question of crossing the floor if the proposal [to block supply] was made.

Four decades after the event, there is no evidence to dispute Kerr’s judgement that Fraser had the support of the Coalition MPs to continue to block supply until the matter was resolved. Neither Fraser nor Whitlam had any intention of backing down.

• Despite the many denials of Whitlam and his followers, there is evidence that, if Whitlam had forewarning of Kerr’s action on 11 November 1975, he would have acted first by advising the Queen to withdraw Kerr’s commission as governor-general.

The main scoop in the Kelly/Bramston book turns on the letter which Whitlam wrote to British Labour prime minister Harold Wilson on 31 December 1975 alleging that Kerr had deceived him.  Whitlam added:

I’m sure that I would have been in touch with the Queen if my suspicions had been aroused.

There are two responses to this reality.  First, that Kerr dismissed Whitlam, without advising the prime minister of his intentions, when he did in order to preserve his own job.  Second, Kerr dismissed Whitlam, without advising the prime minister of his intentions, when he did in order to keep Buckingham Palace out of the dispute between Whitlam and Fraser.

From my discussions with Kerr three decades ago, I believe that Kerr – quite properly – did not want the Queen dragged into Australian politics.  As the Kelly/Bramston book documents, it was Whitlam – not Kerr – who first approached the Palace on this issue when he called Sir Martin Charteris.  This took place shortly after the Dismissal.  The only other politician to ask the Queen to intervene in the matter was the Labor appointed speaker of the House of Representatives, Gordon Scholes.

• Neither Kelly/Bramston nor Hocking focus on the fact that, before Kerr sacked Whitlam in November 1975, Labor had supported the right of an Opposition to block or defeat money bills and force a government to an election.

As David Smith documented in his book Head of State (Macleay Press, 2005) and his May 2013 address to The Sydney Institute, between 1950 and the 1972 election, Labor attempted on no fewer than 170 occasions to oppose money bills in the Senate for the sole purpose of forcing the government of the day to face the people at an election.

In other words, what Fraser proposed and did in 1975 was only different from the Labor precedents in one respect. Namely, it worked.

• Shortly before the December 1975 election, Professor Hugh Wolfsohn and Professor Rufus David wrote a letter to The Age. Despite what was close to political hysteria among the “Shame Fraser, Shame” set, the two Jewish Australians, with European backgrounds, argued that Australian democracy was not in crisis and no coup had occurred. They depicted the events of 1975 as a “temporary technical difficulty in the working of our parliamentary system which lacks adequate provisions for the satisfactory resolution of deadlocks between the two Houses of Parliament”.

It is true that Kelly/Bramston have written that Sir John Kerr became obsessed with, and sought self-justification for, the Dismissal.  But Australian democracy survived – and the so-called “coup” was followed by elections in 1975 and 1977 in which the Fraser government won in landslides.  But Labor, under Bob Hawke, attained office in March 1983.  In other words, the normal Australian political cycle remained essentially in place.

According to Paul Kelly and Troy Bramston, the Dismissal “remains Australia’s greater political crisis”.  Which demonstrates that modern Australia has never had a real political crisis. The Wolfsohn/Davis interpretation of November 1975 was correct.

• Without the Coalition’s determination to block supply – unsuccessfully (under the leadership of Bill Snedden) in 1974 and successfully (under the leadership of Malcolm Fraser) in 1975 – Sir John Kerr would be scarcely remembered today.

John Kerr has been subjected to enormous criticism – and at times, mockery – both in his final years and after his death.  But no one has demonstrated that he acted unconstitutionally in November 1975.  John Kerr once told me that he believed he had “out-martialled” Gough Whitlam in the lead-up to the Dismissal.

The evidence in the Kelly/Bramston book is that Sir John Kerr and Malcolm Fraser – in their differing ways – handled the events of October/November with a much more disciplined work-rate and much sounder judgment than Gough Whitlam.

* * * *

A NOTE ON MALCOLM FRASER’S NOTE

 This is the note which Malcolm Fraser took following his conversation with Sir John Kerr on 11 November 2015.  Mr Fraser wrote down the conditions, stated by the Governor General – which would apply to caretaker government up until the election on 13 December 1975.  It read as follows: (1) Double Dissolution Bills, (2) Caretaker, (3) No policy changes, (4) No Royal Com[mission], (5) + Supply and (5)[sic] Dissolution today.

Sir John Kerr always said that the above conditions were laid down by him when Malcolm Fraser visited Government House at around 1 pm on 11 November 1975.  Sir John had a contemporaneous note in support of his position – which was reported by Gerard Henderson in 1987.

In 1987, for the first time, Malcolm Fraser said that the conditions were laid down by Sir John Kerr in a telephone conversation which he claimed took place between 10.10 am and 10.30 am on 11 November 1975.  Mr Fraser initially claimed to have mislaid the note and did not provide the copy until 2010.  When the note was produced, the phone conversation was timed at 9.55 am.

Sir John Kerr always acknowledged that he had spoken to Malcolm Fraser by phone on the morning of 11 November 1075.  Kerr claimed – and his contemporaneous note supported his view – that the conversation merely turned on whether the Coalition was intent on continuing to block supply.

The different hand-writing style on the top half of the document – as distinct from the bottom half – suggests that Malcolm Fraser timed and dated his note sometime after his conversation with Sir John Kerr took place.  Also the year “1975” looks like it has been corrected from the original date of “1985” – with the “7” pressed firmly over the “8” (which is still slightly visible).  In addition the handwriting is much darker and stronger and the ink at the bottom of the document is significantly different to the top half of the document.

Before Malcolm Fraser’s note can be regarded as a contemporaneous record for his phone call with the Governor-General on the morning of 11 November 1975 it should be tested forensically.  The original note is contained in the Fraser Papers at the University of Melbourne.