By Jenny Hocking
Continued from Part 3
Kerr always claimed that the decision to dismiss the Whitlam government was his alone, that the leader of the opposition, Malcolm Fraser, did not know and that he had spoken to the High Court Chief Justice Sir Garfield Barwick only after he had reached his decision, and that the Palace was in no way involved. Sir Martin Charteris wrote on the Queen’s behalf to the Speaker, Gordon Scholes, soon after the dismissal; “The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution”.
This narrative of the Governor-General faced with an impossible decision and with no other option available but to dismiss the elected government, was well captured by the Sydney Morning Herald’s editorial the following day: “the course he [Kerr] has taken was the only course open to him”. In its recitation of Kerr’s statement of reasons, released within hours of the dismissal, the editorial makes no mention of the half-Senate election despite its pronouncement on whether other options were available to Kerr.
The invisibility of the half-Senate election is one of the notable features of much of the immediate commentary. Which is all the more puzzling since Whitlam was at Yarralumla on 11 November in order to call the half-Senate election, as Kerr well knew. Yet, in his statement of reasons, Kerr made scant reference to it and indeed misrepresented the half-Senate election in a way that then carried into much of the historical assessments to come. Instead of the active advice of the Prime Minister to call the half-Senate election, which Whitlam had finalised with Kerr over the phone that morning, Kerr instead describes it passively as a penultimate paragraph afterthought; “There has been discussion of the possibility that a half-Senate election might be held under circumstances in which the government has not obtained supply” (my emphasis).
Kerr’s official secretary, David Smith, later confirmed that, far from a remote possibility, by 11 November 1975, the complex process towards the half-Senate election was well in train and that Whitlam was at Yarralumla to call the half-Senate election having confirmed it with Kerr. And the paperwork for the states and territories, each requiring slightly different timelines for issuing writs, had been exchanged between Whitlam and Kerr’s respective offices over the previous four days. Archival records from the Attorney-General’s department confirm this, showing the department’s rolling plans for the half-Senate election from the day Supply was blocked in October, with the dates adjusted up to the morning of 11 November 1975 when Whitlam advised Kerr that he would call the half-Senate election.
Whitlam was due to announce the half-Senate election to the House of Representatives on the afternoon of 11 November 1975, and his signed letter to Kerr setting out the details for it was in his hand as he arrived in the Governor-General’s study. It can be found today among Kerr’s papers in the National Archives, with Kerr’s handwritten notation in the upper right corner: “the recommendation was not made”. The early histories of the dismissal were unaware of just how close Whitlam had been to calling the half-Senate election, some see it only as an option considered and not taken, while others fail to mention it at all.
To dilute the half-Senate election, as Kerr did in his statement and as much of the history then followed, is to overlook one of the critical explanatory factors in both the dismissal and in the options available for a resolution which maintained the cardinal principle of responsible government. The half-Senate election takes its place as a critical dismissal moment much overlooked by historical assessments, alongside the 1974 double dissolution election and the motion of no confidence in Malcolm Fraser two hours after his appointment as Prime Minister. In Fraser’s own autobiography for instance, there is no mention of the no confidence motion against him on the afternoon of 11 November 1975, the cornerstone motion in a Westminster system on which the formation of government is determined; nor any mention of his refusal to resign as Prime Minister once the House had reiterated its confidence in Gough Whitlam; nor of Kerr’s refusal to see the Speaker to receive that motion. History as absence.The significance of the 1974 double dissolution lies not in the fact that the Opposition senators threatened to block Supply as is often suggested, but in the assiduous role played by then Governor-General, Sir Paul Hasluck, in accepting Whitlam’s advice to call the election while at the same time ensuring the passage of Supply. This was done, as Hasluck’s highly entertaining pen portraits of his conversations with Whitlam at the time show, by accepting Whitlam’s advice to call the double dissolution election conditional on the Senate granting supply. This is a critical, in fact the only, comparator open to Kerr and yet it is rarely considered in that context.To ignore that recent history of Hasluck’s engagement with Whitlam is to ignore the only precedent for the measured and disciplined vice-regal response to a threat to Supply and a Prime Minister’s advice to call an election. Hasluck’s careful discussions with Whitlam, always in the context of respecting both responsible government and the need to secure Supply, regarding the 1974 threat to supply are reflected in its proper resolution – with ministerial responsibility intact, Supply passed, and the Prime Minister’s advice followed. Hasluck’s understanding of the vice-regal role at that crucial time stands in marked contrast to the disruptive unilateralism of Kerr eighteen months later. In a strident editorial rebuke “Sir John was wrong”, The Age alone among the immediate commentaries on Kerr’s precipitate action, which it termed his “Yarralumla coup d’etat”, implicitly invoked Hasluck’s response in 1974 of granting the election pending the passage of supply:
We are not convinced the decision he [Kerr] took was the only one open to him, or that it was necessary to take it now […] we should like to know if Sir John considered the possibility of urging Mr. Fraser to allow the Senate to pass interim Supply so that a half-Senate election could be held.
Central to the narrative of lonely inevitability, Fraser and Kerr repeatedly denied having any prior contact or warning before the dismissal, other than with the approval of the Prime Minister Gough Whitlam, as constitutional protocol required. This pillar of the dismissal narrative and of the essential neutrality of the Crown’s representative, collapsed a decade later when Fraser’s aggrieved colleague, the recently demoted former minister and architect of the Senate’s tactics in 1975, Senator Reg Withers made a stunning revelation. Withers now claimed that Kerr and Fraser had spoken before the dismissal, which both had always denied, and that Fraser had agreed to certain terms of appointment as Prime Minister with Kerr by phone on the morning of 11 November.
Faced with Withers’s revelation, after a decade of denial Fraser admitted his prior knowledge of the dismissal and his agreement on the terms of his appointment with Kerr. Fraser told his biographer Philip Ayres that he had made a note of this critical conversation with Kerr, which occurred before and not after the dismissal as he and Kerr had previously insisted. The fifth of these agreed conditions was in Fraser’s words, “less expected”, that there would be no royal commission over the “loans affair”. In enumerating these points to Parliament on the afternoon of 11 November 1975, and at that stage still claiming they were not put to him until after the dismissal, Fraser said; “There will be no royal commissions or inquiries into the activities of this Government”, despite having previously called for such a Royal Commission into the Whitlam government’s loan raising.
This was controversial on two levels: first, it made a vice-regal appointment as Prime Minister conditional on the incoming government taking a particular policy decision; second, and most significantly, this was an agreement on a matter that directly involved Kerr himself as a signatory to the Executive Council Minute authorising the Whitlam government’s loan raising, in absentia in December 1974 and again in person in January 1975. Kerr had been greatly exercised by the prospect of being caught up in any prospective inquiry into the loan raising through a Royal Commission and from the criticisms by some in the legal community for having signed the Executive Council Minute. With this very specific condition of Fraser’s appointment, there would be no Royal Commission into the loan raising under the Fraser government.
It is an understatement to say that this shared agreement between the Governor-General and the soon to be appointed Prime Minister lacking the confidence of the House, regarding a policy decision directly affecting the Governor-General himself, raises serious political, ethical, and constitutional issues.
Although Fraser, Withers, and Fraser’s private secretary Dale Budd all confirmed this agreement with Kerr as taking place before the dismissal, Kerr always denied that he gave any warning to or made such an agreement with Fraser prior to dismissing Whitlam. It has been suggested by some that Fraser, Budd, and Withers all confused the timing of this conversation with Kerr’s discussions with Fraser after he was commissioned. The story took another turn in 2006 when Fraser signed a statutory declaration restating the conditions and the timing and again insisting that this was a firm commitment put to him by Kerr before the dismissal.After four iterations of this foundational element in the dismissal, the foreknowledge of the leader of the Opposition, it remains contested. Its trajectory from firm denial to begrudging acknowledgement still clouded by disputed details, exposed fundamental flaws in what had been a central pillar of the dismissal narrative. It is just one example of the historical quicksand underpinning the dismissal and the remarkable fluidity of its history. This essay was originally published on Wiley Online Library.
Illustration: ‘Jeanie d’Archives’. Concept/Creative designer Tess Lawrence. Production Daniel Jaap. Built upon the beautiful work of Touraine’s Hennes Poulvoir. Medium: Paint on ceramic. Copyright: Tess Lawrence.
Jenny Hocking is emeritus professor at Monash University, Distinguished Whitlam Fellow at the Whitlam Institute at Western Sydney University and award-winning biographer of Gough Whitlam. Her latest book is The Palace Letters: The Queen, the governor-general, and the plot to dismiss Gough Whitlam. You can follow Jenny on X @palaceletters.
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At the time, and for many years after, I had considered Fraser to be the main villain of the piece; the more I learn now, the more Kerr takes that leading role.
Contemptible schemers, both of them.
I was 20 years old at the time of the dismissal. I well remember all the stuff being promulgated. Labor's circus of breaking convention seeking foreign (off the books) loans to buy back all Oz mineral resources for the people that resulted in the sacking of ministers Rex Connor and Jim Cairns (the Khemlani loans affair). The devious lead-up by the Liberals (Fraser et al). The breach of convention, implanting the numbskull Reg Withers into the Senate. The blocking of Supply by the Senate. And the final pouncing, like funnel web spiders, of Kerr and Fraser in cahoots. And then their ongoing unconventional and likely unlawful digestion of their prey, and usurping of the will of the people.
Labor, and Whitlam in their ideological 'good intent' were trapped, and through stupidity and naivety handled it all badly and were hung for it.
There was no doubt in my mind that conservative forces had marshalled from the time of the mooted 'mineral resources buy-back' and the implanting of Reg Withers. With Kerr and Fraser plotting and crossing 'Ts' and dotting 'Is', and no doubt arse covering with both the Crown and the agents of the USA.
What astounded me at the time was the closing of ranks in the 'fourth estate'. I was at the time incredulous that they couldn't (or didn't want to) stitch it all together.
A precedent of high dudgeon and autocratic manoeuvres was set by the Liberal Party and seems to have stayed with them since. I presumed it reached its apogee of spin and deceit with Morrison's mob, but the Dutton cabal of space cadets could yet see Oz slingshot into oblivion. I'd rather not see Labor fall like in 1975 - they need to be careful, and Albo needs to lift his game.
Thank you Jenny Hocking for reminding us again of the skullduggery of the born to rule mob.
The times were tough, the changes brought and planned by the Whitlam government were needed. Health care, education, women's rights and much more, but the OPEC oil crisis came along, pushing inflation sky high, both here and throughout the western industrialised world, but that could conveniently be blamed on those financial fools, LABOR. Refusal to allow budgets through, refusal to allow the Labor government to do its job was far more important than to protect the democratic right of the people's vote to actually change the government.
Listening to the current opposition, nothing much has changed.
Does Albo need to lift his game? His current trip across Queensland, NT and WA is interesting, announcements to deal with pressing issues, an unsafe road with a commitment to fixing it, a housing crisis in the NT and Northern WA, plans to deal with those, and on he goes, listening to people, looking to improve lives.
The opposition? They want more detail for the road construction according to Angus Taylor (it's a road Angus, a very busy road which needs to be wider, with safety barriers and stuff like that. What more do you want to know?) who also stand that Labor can't be trusted (Like we can trust his mob?)
Non union labour (at a 30% discount for those on union negotiated conditions) needed to build the road according to Dutton who agreed the road needs to be built.... but let's use minimum wages and probably unskilled workers to do the job.
So far, all we have heard is how bad Labor are, and how to trust the other mob, the born to rule mob who only care about those who already have the most, couldn't give two hoots for the ordinary, not too rich rest of us.
Oh and yet to come.... Cost of living crisis as inflation, inherited from the previous government at over 6% is now sitting at less than half that.
Clakka's comment reminds me of how the Senate was manipulated by the State Governments of NSW and Queensland. The replacement of ALP Senator Lionel Murphy (who went to the High Court) with "independent" Cleaver Bunton and then the appointment of "independent" Albert Field to replace ALP Senator Bert Millner, who sadly died. These two replacement Senators were not ALP Senators, and their presence lost Whitlam the balance of power that he had enjoyed after tgge 1974 election.