Reopening the Whitlam File

The Hon Nicholas Hasluck AM, QC is a former Judge and well-known also as a novelist. His novel The Bellarmine Jug won The Age Book of the Year Award. His books about the Whitlam era include Dismissal (Fourth Estate/Harper Collins, 2011) and Legal Limits (Federation Press, 2013). He has also edited two books which include writings by his father bearing upon that era – Paul Hasluck’s Light That Time Has Made (NLA 1995) and Paul Hasluck’s The Chance of Politics (Text1997)) To discuss his approach to the law and literature, on Thursday 6 February 2014, Nicholas Hasluck addressed The Sydney Institute on the topic of the Dismissal of the Whitlam Government in November 1975 and his use of this as background to his novel Dismissal. 

REOPENING THE WHITLAM FILE

NICHOLAS HASLUCK

At the Windsor Hotel in Melbourne, shortly before the Governor-General determined his appointment as Prime Minister, Mr Whitlam spoke to a gathering of writers. He said that “the climate for Australian writing is bright”. He described the support given to writers by his government in this way: “Since 1973 the Literature Board has awarded 269 fellowships compared with 207 awarded by the Commonwealth Literary Fund in 34 years from 1939 to 1972.” He closed by saying that “the challenge for the writer is to adapt his ancient and difficult craft to a generation that is largely insensitive to its virtues and to a popular audience increasingly distracted by the pace, immediacy and materialism of contemporary life. This is an immensely difficult but profoundly important task.”

There was a good deal of truth in these latter observations but, as to the challenge for Whitlam himself, the pace of life was about to become a stampede. Within a few weeks, after heated debate about the Khemlani loans scandal and the state of the economy, the Liberal Party used its numbers in the Senate to defer supply. A few weeks after that, on 11 November 1975, the Governor-General, Sir John Kerr, sacked Whitlam for refusing to resign or advise an election after failing to obtain supply. On the advice of the new Prime Minister, Malcolm Fraser, both Houses of Parliament were then dissolved, and in the following election Whitlam’s Labor Party was soundly defeated.

The climate had changed. The Whitlam sacking resulted in a tidal wave of new writing, fortunately not accompanied by a tsunami of literary grants, but bringing with it torrents of print ranging from angry placards to the memoirs of the main players, from skilled journalism to theories implicating the CIA, from well-researched tomes to the pronouncements of academic gadflys and highly-priced silks. It is a moot question as to how many of these effusions met “the challenge for the writer” outlined by Mr Whitlam at the Windsor Hotel before his downfall. Indeed, as the deposed leader said at the launch of his own book, The Whitlam Government – with characteristic wit – “for a number of years up to 1983, the Whitlam book industry was our largest growth industry after tax avoidance.”

The industry has continued to thrive. The Whitlam Legacy (The Federation Press) edited by a well-known journalist, Troy Bramston, is a recent addition to the stockpile. It brings together contributions by a number of “high profile and distinguished individuals” and includes a chapter co-authored by Paul Kelly and the editor himself – The Untold Story of the Dismissal – in which recent disclosures concerning the Governor-General’s consultations with members of the High Court are carefully assessed. The purpose of the book, according to the editor’s Introduction, ‘is not to eulogise or demonise, celebrate or denigrate the Whitlam government, but rather to acknowledge its successes and achievements alongside its flaws, mistakes and misjudgements.” Nonetheless, the editor feels obliged to confess that in compiling the book he “was energised not by the lingering unjustness of the dismissal but rather the lasting legacy of the Whitlam years. It is a legacy that extends to the rebirth of Labor in the 1960s to almost every area of policy and to the way politics is practised in the modern era.” He ends by saying: “The legacy endures because, in the final analysis, Edward Gough Whitlam understood what politics is fundamentally about: leadership.”

There is obviously room for disagreement with the views expressed by Troy Bramston and by many of his contributors, and room for debate about the significance of the main events. On both sides of politics the Whitlam era and “the dismissal” continue to arouse strong emotions – in those who were there at the time, and in certain members of the next generation, as in the case of Troy Bramston himself, who have studied the circumstances and formed a view. But, inevitably, some of the passion has subsided. Gough Whitlam and Malcolm Fraser have been photographed together on various public occasions. Gough Whitlam’s denunciation of Sir John Kerr in The Truth of the Matter was followed by a later work – Abiding Interest – which opens with this assertion: “My chief interest in the events of October-November 1975 now lies in their relevance to Australia’s advance towards the Republic.”

My purpose in this piece is not to add to the debate about flaws or achievements, or even to embark upon yet another detailed analysis of the events preceding the dismissal, although, admittedly, as a lawyer and as the son of a former Governor-General who was in office when Whitlam came to power in 1972– Sir Paul Hasluck – I have tried to keep abreast of writings about the Whitlam government and its downfall, and admit to having added to the stockpile myself. What is presently of interest to me, bearing in mind Whitlam’s description of the “challenge for the writer” before he was sacked, is the paucity of artistic works about this unique era in Australian history. Where are the writers engaged in what Gough Whitlam called the “profoundly important task” of adapting their craft to a popular audience that is increasingly subject to many distractions?

A TV series called The Dismissal went to air, and reached a large audience in the early 1980s, but this was in the nature of a dramatised documentary – the actors echoed what was said and done in actuality. It lacked the intensity of vision to be found in so many enduring works of literature, the singular view in which an underlying truth is not only revealed, but given a special force by the manner of its expression. Forty years on, is there room within the Whitlam legacy for writing of a different kind – a tale that looks beyond the details for particular insights or a memorable theme?

This question was prompted by the last three lines in Troy Bramston’s anthology, a passage in which one of Whitlam’s earliest political supporters, Les Johnson, is quoted. Johnson played a key role in Whitlam’s pre-selection for the seat of Werriwa in 1952, in securing the deputy leadership of the party for Whitlam eight years later, and as a member of Whitlam’s ministry. He is quoted to this effect: “There were great achievements – they are mind boggling achievements – a record not matched by any government since. But great attributes can soon become great shortcomings. Our drive to do things and our passion in those early days became a curse.”

Curiously, the words that close this carefully compiled anthology, these ruminations by a former minister eager to pay tribute to a long-standing political friend, but not blind to the Whitlam government’s faults, touch the tragic chord so often found in great works of literature. They bear an eerie resemblance to Hamlet’s ruminations on the battlements of Elsinore which gain force by the manner of their expression and can, for present purposes, be paraphrased as follows: so oft it chances that a man bearing the stamp of one defect, though his virtues be performed at height and pure as grace, will “in the general censure take corruption from that one particular fault.”

Thus, in laying aside the Bramston book with these words in mind, it is tempting to look for some of the insights or deeper truths that storytellers might find within the Whitlam saga, at a time, forty years after the event, when the details are becoming increasingly difficult to recall.

In addition to the flawed hero motif singled out by Whitlam’s staunch supporter, Les Johnson, various other themes potentially of interest to a popular audience invite consideration, although, as Whitlam’s speechwriter Graham Freudenberg noted, “if only by reason of its extraordinary end, there will always be great difficulty in making a final judgment on the Whitlam government.”

Some novelists or playwrights might be inclined to treat the reforming vision which made a martyr of its principal proponent as the true centre of the story. For others it might be the ambiguity as to where exactly real power lies within this country’s democratic processes, as between the parliament, the executive, the reserve powers of the crown, and the ever-present media cycle and opinions polls. Or does the story of the Whitlam era and its ending continue to unsettle and disturb because it bears upon the frailty of the democratic system and the related risk of chaos if power be exercised capriciously?  What degree of dissent is justifiable, if a government is thought to have been displaced by questionable means? Or does it all come down to parliament and the corridors of power viewed as an arena where a wide range of personal and political ambitions are played out? Perhaps, as Gough Whitlam himself has intimated, the era and the nature of its ending simply points the way to the creation of a republic.

The more one thinks about the Whitlam era at this distance of time, and in the light of later events, the more the larger questions seem to multiply. What can we learn from an era in which the leader of an avowedly innovative government is viewed as a kind of messiah and therefore takes it upon himself to be constantly active in pressing for change and keeping the media fascinated? Will the frenetic pace inherent in such a role lead eventually to increasing dysfunction as the leader and those around him, seduced by their own rhetoric, substitute feints and gestures for real action? Can a work of fiction, by taking liberties not available to the conscientious journalist, by exploring ambiguities or magnifying certain features of the scene, draw attention to ill-advised adventures or assist the average punter to identify an ideologue?

Question of this kind can’t be taken lightly or dismissed as a mere literary conceit, for we have witnessed the downward spiral in Australian politics  from the activism of a leader in the Whitlam era, where new policies showed a clear sense of purpose, to the vacuous repartee of the Rudd regime, so ably satirised by the TV series The Hollowmen, in which, it seemed, every soft shoe shuffle was choreographed to suit the vagaries of the daily media cycle and every sugar-coated grin, promising much but delivering little, left the Prime Minister of the day looking like a celebrity chef or an impresario from vaudeville, promoting the acrobats and jugglers and chorus line of cousins waiting in the wings as universally acclaimed “working families” –  whatever that means.

Writing about law and politics, I will argue, can move beyond verifiable fact and related analysis on some occasions, especially if the aim is to capture the attention of a younger generation or a popular audience, many of whom may well be indifferent to events that happened long ago or, to paraphrase Gough Whitlam, insensitive to the virtues of academic studies or skilful journalism.

It is apparent from the works of writers in other countries such as Arthur Koestler or Albert Camus or George Orwell that the novel can be used to discern and convey certain truths about the politics of a time and place that stay with the reader due to the singularity of their viewpoint. J.M.Coetzee’s novel Waiting for the Barbarians in its central metaphor exposed the folly of the apartheid regime in South Africa by suggesting that the guardians protecting his unnamed empire from external threats were barbarians themselves. His later novel Disgrace evokes the mood of apprehension accompanying a transfer of power from a discredited regime to the uncertainties of its successor.

Political uncertainty, or an era marked by rapid change, is fertile ground for creative observers – filmmakers, playwrights or novelists. Confrontation encourages some people to discover different sides to their nature and prompts others to play out their personal dramas on a larger stage. One sees bystanders affected by dilemmas that transcend the personal, but with their own hopes and apprehensions being inevitably brought to the fore. The elements of drama can quickly descend on ordinary people who are affected by the extraordinary nature of their times.

In The Great Gatsby, the American novelist F.Scott Fitzgerald not only managed to evoke the characteristics of an era – the Jazz Age of the 1920s – but, in doing so, by drawing upon the past and by the power of his style, he went even further and marked out the continuous and underlying influence of the American dream. Closer to home we have the example of D.H.Lawrence’s novel Kangaroo in which the author’s response to what he experienced was to be mirrored in the future. When Lawrence wrote his novel in 1922, after only a few months in Australia, the right-wing political movement he presented to the reader didn’t exist. But what he sensed in the mood of the country became a reality ten years later with the formation of the New Guard. John Douglas Pringle, a former editor of the Sydney Morning Herald, spoke of being overwhelmed by the novel’s essential truth. In his book Australian Accent he went so far as to say: “I can think of no more convincing proof of the superiority of the creative writer over the journalist or historian.”

Unlike an essay or an article, or a polemical work of non-fiction, a “political” novel doesn’t usually make a specific point. Readers are invited to find meanings for themselves by exploring the implications of the story. I have developed this line of argument in my recently released book Legal Limits (The Federation Press). In various chapters I look at the relationship between law and literature, and at the nature of the political novel, with particular reference to the Whitlam era. This is because, not so long ago, being intrigued by questions about the significance of the era, and by the paucity of creative works bearing upon a crucial moment in Australian history, I settled down to the writing of a novel called Dismissal (Fourth Estate/Harper Collins) – a work of fiction which revisits the constitutional crisis of 1975. My novel starts with the Petrov Commission and its consequential effect upon the leadership of the Labor Party and finishes up with Edward Gough Whitlam standing on the front steps of the national parliament in Canberra, microphone in hand, urging his supporters to “maintain your rage”.

That day of reckoning marked the end of one controversy – the deferring of supply by Liberal Party senators – but led to another: whether the Governor-General was entitled to or should have acted as he did in deposing a government with a majority in the House of Representatives, contrary to the wishes of the current Prime Minister.

Both of these controversies aroused fierce passions at the time, and both have a continuing political relevance – to the exercise of power, to the nature of leadership, and to the question of where exactly power resides at any crucial moment. Even if the Senate’s power to block supply is conceded, political parties, or individual politicians holding the balance of power in that chamber, will think carefully before exercising the power on some future occasion. The scope of the Governor-General’s reserve powers remain undefined but an incumbent’s approach to a political stalemate will undoubtedly be affected by the controversy surrounding Remembrance Day 1975.

Since that time, as I mentioned in earlier discussion, jurists, journalists, historians, leading academics and the principal protagonists have written about these issues, skilfully and at length, but not always for a popular audience. On the other hand, there will be many people in the community, including younger people and the current generation of practising lawyers, who would appreciate having the story presented to them in an accessible form. They would like to know what it felt like to be there on the day, what it feels like to be dismissed, and how the legal issues related to the emotions of the day are to be fitted within a portrayal of the entire scene?

Novelists are always interested in what people have felt in the course of a drama. They look for a pattern, a way of making sense of upheavals and traumatic happenings, be they domestic or public events. Hence, a novel about the day of reckoning should not be regarded as outlandish or impermissible, especially in a case that brings strong emotions into play, a moment in political history redolent with thwarted ambitions, double dealing, indecision and betrayal in the manner of a Shakespearean tragedy.

A critical question for the novelist is how best to tell a story of this kind. Disguise the real characters with fictional names, or employ Gore Vidal’s method of attributing words and deeds to real figures within a framework of what he calls “the agreed-upon facts” of the era? The 1975 crisis was of such an extraordinary nature that a veil of fiction would have simply added an air of implausibility to the action. Better by far to place the real figures in the background, but acting consistently with what they admitted to having said and done, leaving most of the stage to a cast of fictional characters moving about in the foreground. So in the end I constructed my novel Dismissal as a blend of fact and fiction with a view to exploring some of the silences at the heart of the affair, gaps in the record, various mysteries.

Were the titans at the centre of the stage – Whitlam, Fraser, Barwick, Kerr – affected by past ties or by personal flaws or vagaries of character? What motivated Sir John Kerr to move against the Labor leader who had appointed him to high office? Could steps have been taken to resolve the impasse concerning supply by some means other than a sacking, and thereby save the current regime, including its imposing principal and all his courtiers? And as to the fictional characters, the brightly-costumed players gossiping and conniving in a corner by the footlights, close enough to the audience to be listened to attentively – their bawdy asides, their dark suspicions – was anything said or done by them (or by real people like them) an influence upon the outcome?

Questions of this kind led inexorably to a critical period of thirty minutes or so in King’s Hall at lunch time on the day of reckoning – when things could have gone either way for the opposing parties – and to other intriguing issues. Did the elements of the drama and the characters of the principal players allow for a different denouement before the curtain fell? Was there a moment of ambiguity in King’s Hall, fraught with tension, when an alternate history of the affair came close to appearing, the shadow of its offstage presence projected on the parquetry as if in some ominous streetscape conjured up by Giorgio de Chirico?

It was in order to dwell upon the possibilities of such a moment that it became necessary for me to flesh out the fictional characters in early chapters of the novel and to establish their supposed links to the real figures, and to the crisis that brought them all to Canberra. It was clear also that the story in question would have to be told from the point of view of the losing side. The pull of a story, the awe we feel while in the grip of a compelling tale, are felt most strongly when a figure we have seen at close quarters, once high and mighty, but now in peril, is overthrown. There must be a change of fortune from good to bad; reversal followed by recognition; catharsis. It was for these reasons, essentially, that in Dismissal the crucial events are unfolded by Roy Temple QC, a fictional Sydney barrister who was once on the far left of Australian politics, but in the period leading up to Remembrance Day has purportedly worked his way into the inner circle of the Whitlam government – a courtier with his own ambitions, one who has much to lose.

I laboured to ensure that the sub-plot concerning Roy Temple’s relationship with his friends on the far left of the political scene was gradually unfolded in counterpoint to the main political events. It had to resonate with the central theme of trust and betrayal. The sub-plot was shaped also to allow for the possibility that the presence of Roy Temple and his friends, as advisers, might involve the beleaguered government in a fresh controversy, if allegations concerning their past ties were revived. And that, of course, brings me back to another area of difficulty for the political novelist working within a framework of actuality – the process of selecting the historical facts and matters to be used.

In the present case the process of selection was influenced by my determination not to misrepresent or stray beyond the undisputed or “agreed-upon facts”, but recognising a need, in order to advance the plot, to draw the reader’s attention to gaps in the record, opportunities for speculation. Accordingly, my novel plays upon and opens up three main areas of ambiguity.

First, the findings of the Petrov Commission in the mid 1950s allowed room for speculation that in the Cold War era government bodies in the United States, Great Britain and Australia had been penetrated by Soviet agents and sympathisers at the highest level, although the extent of the penetration was not fully known even as late as November 1975. Indeed, it was only a few years after the Whitlam dismissal, as emerged during the Spycatcher trial in Sydney (in which Malcolm Turnbull made his name), that a senior figure in MIV, Sir Roger Hollis, who came to Australia in Evatt’s time to help set up the Australian Security Intelligence Organisation, or ASIO, was himself under investigation as a possible Soviet spy.

Were there people like Kim Philby or possibly Roger Hollis in Australia with an interest in atomic secrets related to the bomb tests on the Monte Bello islands and at Maralinga – codenamed Enormaz in the Petrov papers – who were also under suspicion? If so, were such people named in the notorious Document J which was described by counsel assisting the Petrov Commission as “a farrago of facts, falsity and filth”. The Commission suppressed the document but it became clear later that it would have been released by Whitlam on or about 11 November 1975, but for the dismissal. Was ASIO or the CIA interested in the pending release of Document J?

Let me turn now to a second area of ambiguity. The events preceding the fall of the Whitlam government included a fateful meeting of the Executive Council in the dining room of the Prime Minister’s residence in Canberra – The Lodge – on Friday 13 December 1974, exactly one year to the day before the Labor Party was defeated in the double dissolution election following the dismissal. It can be taken as an undisputed or “agreed-upon” fact that late in the evening of that day, after a lengthy period of contentious debate involving Treasury officials and governmental legal advisers, an executive council minute was signed by four ministers: Gough Whitlam, Lionel Murphy, Jim Cairns and the energetic Minister for Minerals and Energy Rex Connor – known as “the Strangler”.

This controversial minute – signed in the kitchen of the Lodge (on top of the fridge, according to the Labor frontbencher Clyde Cameron) – authorised Connor to borrow “for temporary purposes” (emphasis added) $US4000 million in order to provide “immediate protection for Australia in regard to supply of minerals and energy and to deal with current and immediately foreseeable unemployment in Australia”.

Rex Connor’s authority – a green light encouraging him to persist in an ill-fated quest to garner middle eastern petro-dollars via the mysterious Pakistani money trader Tirath Khemlani – was revoked before any overseas funds were actually obtained. But the revocation wasn’t enough to neutralise the political controversy arising out of these events, generally known as the “loans scandal” – an imbroglio that encouraged the Liberals under Fraser to block supply and precipitate the dismissal. (As Roy Temple puts it in the novel: “The money that never came, the phantom fund that didn’t cost the nation a cent, had now become the worst kind of debt: an electoral liability.”).

There is a degree of ambiguity in all of this as to how exactly the Attorney General Lionel Murphy arrived at his “courageous” opinion (as Sir Humphrey Appleby might have described it) that such a loan could be characterised as being “for temporary purposes”. Could it be that one of Murphy’s sources of advice was a trusted confidant outside the official circle, a barrister from Sydney perhaps, not previously known to the press gallery or to members of the Attorney General’s staff, an adviser such as Roy Temple QC? If so, what factors, lay behind the advice that was given? Was Temple the source of any other contentious advice in the period leading up to the dismissal or in King’s Hall at lunch time on the day itself?

This brings me to a third area of ambiguity. It appears to be common ground among observers of the scene that in his study at Government House, at about I pm on the day of reckoning, Sir John Kerr handed Prime Minister Whitlam a letter effecting the dismissal. Malcolm Fraser, who was elsewhere on the premises at that time, was sworn in as a so-called “caretaker” Prime Minister shortly afterwards, subject to his undertaking that upon the passing of the supply bills he would advise a double dissolution of both houses of parliament and continue to serve as a caretaker until the outcome of the subsequent election was known. It was not known how exactly he would push the supply bills through an evenly-divided Senate.

In the current era of mobile phones, email, texting and obsessive twitterings – instant communication – news of the dismissal in the circumstances I have just described would undoubtedly have reached every corner of Parliament House within a matter of minutes. But as we are inclined to say of history: the past is another country. All the contemporary accounts suggest that when the Labor leader in the Senate, Ken Wriedt, and those close to him entered the Senate chamber after lunch to renew their attempt to have the supply bills passed, they were completely unaware that the constitutional deadlock, the crisis that had been running onwards for the past month or so, worsening day by day as money to fund the workings of government ran out, had suddenly been turned upside down. Whitlam was out; Fraser was in, and now it suited the Liberals to have the supply bills passed.

This has always been a puzzling feature of the crucial day: what happened in the thirty minutes or so before the Senate resumed its sitting? How did it come about that Ken Wriedt and his colleagues on the Labor side voted with the Liberals to pass the supply bills, providing Malcolm Fraser with exactly what he wanted.

The novel explores this area of ambiguity by tracking the movements of Roy Temple and his friends, and by providing an account of what they said and did in pursuit of what was said to be a plan to save the Whitlam government. Or was it a plan to save themselves? This is not the place to reveal the outcome of whatever plans were afoot, for that emerges in the novel.

Put shortly, a compelling narrative of any kind, in court or between the covers of a book, is bound to be affected to some extent by the outlook of the audience and by the storyteller’s ingenuity in defining the issues (including emotional issues that might otherwise be overshadowed by rationality or an emphasis upon verifiable facts). My novel Dismissal was written to explore the possibility of a link between real events and underlying truths, and the   relationship between law and politics and literature. Readers who seek to be more fully informed about the Whitlam dismissal or wish to be assured of greater accuracy will inevitably move beyond a work of fiction and go to the memoirs of the protagonists, and then to the various histories of the affair, or even to legal texts. I invite them to do so.

The word “novel” on the cover of a book containing a work of “legal fiction” is a warning sign to be careful, but is also, at the same time, an invitation; that is, an encouragement to step through the looking-glass in order to look at the world in a new light. The make-believe world behind the looking-glass may prove to be of use in determining what we have to forget, what we must remember, and what can only be supplied by our imaginations in order to comprehend what an important moment in Australian political history felt like.

I have argued in this paper, as it was with D.H.Lawrence’s novel Kangaroo, that works of fiction written in response to a period of unrest or rapid change can be of use in conveying certain insights or essential truths to a popular audience or to a later generation including intimations linking the mood of one era to what lies ahead. Creative writing of this kind, admittedly, can be never be regarded as a substitute for skilled journalism. As to legal or constitutional issues, it lacks the objectivity we expect of lawyers and historians. Nonetheless, that much conceded, plays and novels and filmscripts can often add another dimension to the story.

I deal with the relationship between various forms of writing (and their respective limitations) at greater length in my book Legal Limits. Suffice it to say, for present purposes, that in the end law appears to have much in common with literature – a concern for the fate of the individual in society, an interest in the truth of any matter in contention, an awareness of linguistic skills, a familiarity with different forms of narrative and argument.

There are important differences between the two disciplines, of course, but the nexus remains. The legal system strives to reach a just result by reliance upon processes linked to rationality and reasonableness. Lawyers view adversarial reasoning as the antithesis of imaginative or speculative thought. And yet, procedural fairness, which lies at the heart of respected legal systems, requires that a litigant be heard pursuant to comprehensible rules. The system depends upon stories being told well, and that requires ingenuity.

The best lawyers know how to tell a story. By using their imaginations, they know how to see things from a standpoint other than their own and how to address an audience (particularly a jury) at some hidden or cryptic level. Subject to the rules of evidence, they draw instinctively upon the lessons of literature. Lawyers who practise their profession imaginatively will help to ensure that the voice of a client is heard and understood.

There are certain tales, including the story of the Whitlam era, that by their very nature bring wider issues into play and, in doing so, are bound to remind us of the close relationship between the workings of the legal and parliamentary system on the one hand and the mood of the general community on the other. Works of literature – novels, plays, filmscripts – can sometimes be of greater use in bringing the tale to a new or popular audience than precedents or law books or feature articles because they can range freely across the entire scene. In rendering the inner lives of the central characters they can recreate an era and the passion of a crucial moment.