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John Kerr

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Sir John Kerr
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Sir John Kerr

Sir John Robert Kerr, KBE, PC, AC (September 24 1914 - April 7 1991), Australian judge and 18th Governor-General of Australia, became the most controversial holder of this post when he dismissed the Labor government of Gough Whitlam on 11 November 1975.

Contents

Kerr's career

Kerr was born in Balmain, a working-class suburb of Sydney, where his father was a boiler-maker. He won scholarships to the University of Sydney and graduated in law, being called to the New South Wales bar in 1938. As a student he met Dr H V Evatt, then a judge of the High Court of Australia, and became a protege of his for many years. In 1938 he married Peggy Worstead, with whom he had three children. He spent World War II working for an intelligence organisation, the Directorate of Research and Civil Affairs, a fact which later gave rise to many conspiracy theories. In 1946 he became principal of the Australian School of Pacific Administration and the first Secretary-General of the South Pacific Commission.

Kerr returned to the bar in 1948, becoming a prominent lawyer representing trade union clients and an active member of the Labor Party. He intended seeking Labor endorsement for a parliamentary seat at the 1951 elections, but withdrew in favour of another candidate. After the Labor split of 1955, however, he became disillusioned with party politics. He disliked what he saw as the leftwards trend of the Labor Party under Evatt's leadership, but was not attracted to the breakaway group, the Democratic Labor Party.

In the 1960s Kerr became one of Sydney's leading industrial lawyers, and in 1966 he was appointed a Judge of the Commonwealth Industrial Court, and later to several other judicial positions. During this period his political views became more conservative. He joined the Association for Cultural Freedom, a conservative group (later revealed to have received Central Intelligence Agency funding) and became a friend of Sir Garfield Barwick, the Liberal Attorney-General who became Chief Justice of the High Court of Australia in 1964. Kerr also founded the Law Association for Asia and the Western Pacific (LawAsia) in 1966 and served as President of that organisation until 1970.

Kerr was appointed Chief Justice of New South Wales in 1972. When Sir Paul Hasluck retired as Governor-General in July 1974, the Prime Minister, Gough Whitlam, offered Kerr the post. Kerr knew Whitlam only slightly, but he had remained friends with several ministers in Whitlam's government, such as James McClelland and Joe Riordan. Whitlam seems to have believed that because of Kerr's former membership of the ALP he was still politically "reliable," without realising that Kerr's political views had changed greatly. He also underestimated Kerr's residual ambitions to be at the centre of things politically. Shortly after Kerr took office his wife died. Six months later he married Anne Robson.

Kerr as Governor-General

Sir John Kerr and Gough Whitlam
Sir John Kerr and Gough Whitlam

The Whitlam Government had won a second term in May 1974, but failed to win control of the Senate, where the balance of power was held by two independents. During 1975 the government was enveloped by a series of ministerial scandals (the "Loans Affair"), which resulted in the sacking of two senior ministers, Rex Connor and Deputy Prime Minister, Jim Cairns. The Liberal Opposition Leader (Australia), Malcolm Fraser, decided to use the Senate to block the government's budget bills, thus forcing an early election for the House of Representatives (this is called "blocking supply"). Fraser was able to do this only because a Labor Senator had died, leaving the Senate deadlocked.

By 1975 the office of Govenor-General had come to be seen as almost entirely ceremonial, and therefore politically unimportant. Nevertheless, the Australian Constitution gave the Governor-General wide-ranging powers, including the power to appoint and dismiss Ministers and to dissolve Parliament. Whitlam and others held the view that the Governor-General had no discretion in the exercise of these powers; that they must always be exercised on the advice of the Prime Minister and never otherwise. Kerr, as a jurist, disagreed fundamentally with this view. Constitutional opinion was that the reserve powers remained for use in averting a crisis, but they had yet to be put to the test in Australia.

In a nice irony, Kerr had made study of the reserve powers through his earlier professional relationship with Evatt, a hero of the Labor Party. Evatt was the author of the standard work on the reserve powers as they applied to the British Dominions, The King and His Dominion Governors (1936). Kerr was familiar with this book, and re-read it before accepting Whitlam's offer of the Governor-Generalship. Kerr took an activist view of the role of Governor-General. Neither temperamentally nor politically was he inclined to accept that the Governor-General was a mere cypher, bound always to act on the Prime Minister's advice. He saw himself as a central player in Australian political life, and so he proved to be.

The 1975 crisis

In October 1975 the Liberals used their Senate majority to defer voting on the supply bills until Whitlam agreed to hold an election for the House of Representatives, and a political crisis of the first magnitude developed. Whitlam would not back down and call an early election: Fraser would not back down and allow the budget bills to pass. If this had gone on indefinitely, the government would have run out of money and been unable to meet its financial obligations. It was estimated that it would be late November before this occurred. Whitlam was confident that at least some of the Liberal Senators would back down if he held out long enough. He also thought that public opinion was swinging back his way as a result of Fraser's tactics, and that at an opportune moment he could call a half-Senate election (at which the government would not be at stake) as a means of breaking the deadlock.

Fraser was also aware of these considerations. He knew that several Liberal Senators were indeed uneasy about the blocking of supply, and might not prove reliable for much longer. He also saw evidence in the opinion polls that the public was unhappy about the use of the Senate to block supply. For this reason he was keen to bring the crisis to an early climax. The most expeditious way for this to happen would be for the Governor-General to intervene.

Opposition backbenchers began calling on Kerr to dismiss Whitlam during October: it is not clear whether they had Fraser's approval for these remarks. On 16 October, however, a Liberal frontbencher, Robert Ellicott (a former Commonwealth Solicitor-General) published with Fraser's approval a legal opinion which he had prepared for the Shadow Cabinet, arguing that the Governor-General had both the right and the duty to dismiss the government if it could not obtain supply. On 17 October Whitlam told an interviewer that the Governor-General could not intervene in the crisis because he must always act on the advice of his Prime Minister. Whitlam said later that he intended these remarks to protect Kerr, by making clear his view that the Governor-General had no power to intervene. But Kerr apparently saw them as an attempt to intimidate him, and also as expressing a view of the reserve powers that he did not share.

Kerr saw himself as an active player in the unfolding political drama. He made it clear in several conversations with ministers that he did not accept the view that the Governor-General could play no role in the crisis until supply (government funds) actually ran out: he saw it as his duty to help prevent things getting to that stage. On 30 October he proposed a compromise solution to Whitlam and Fraser, which would have in effect meant a backdown by Fraser, but Fraser rejected this. On 2 November Fraser offered to pass the budget if Whitlam would agree to call an election before the middle of 1976, but Whitlam in turn rejected this. It appears that Kerr, on the basis of discussions with Fraser, had a hand in this proposal, and that he thought it a reasonable compromise. When Whitlam rejected it, it seems, Kerr decided that Whitlam was being intransigent.

Kerr's personal relationship with Whitlam by this stage was not strong: he had been upset by suggestions that the Federal Executive Council had acted improperly during the Loans Affair, and moreover he was suspicious that if Whitlam knew he was contemplating dismissing the Government, he (Whitlam) would react by immediately advising the Queen to dismiss Kerr instead. Whitlam for his part assumed with characteristic confidence that Kerr was in full sympathy with the Government's position and would do nothing to act against him. He therefore made no effort to convince Kerr of the validity of his position and did not think to consult with him during the crisis.

The Dismissal

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Sir John Kerr and Malcolm Fraser

Kerr had another meeting with Fraser (with Whitlam's approval) on 6 November. At this meeting Fraser increased the pressure on Kerr, advising him that the Opposition would not back down and would not accept any compromise, and warning him that if he did not take action against Whitlam then the Opposition would begin to make direct public criticism of him, for having "failed in his duty." Fraser urged Kerr to bring about an election before the end of 1975. The provisions of the Electoral Act meant that the last date on which a 1975 election could be announced was 11 November. Kerr therefore had five days to make up his mind. Fraser privately told journalists after this meeting that he was certain that Kerr would dismiss Whitlam.

On 9 November Kerr consulted the Chief Justice of the High Court of Australia, Sir Garfield Barwick. Kerr asked Garfield to advise him on whether he had the constitutional power to dismiss Whitlam, and Barwick advised him, in writing, that he did. He also advised him that another High Court Justice, Sir Anthony Mason, concurred in this view. Since the advice Barwick gave Kerr became central to subsequent events, it is important to note that this advice was entirely informal and personal. The High Court does not issue advisory opinions, and in any case Kerr did not consult the court as a court, only the Chief Justice. Barwick could not issue advice in his capacity as Chief Justice, only as an individual. In any case, Barwick's impartiality in this instance was open to question, as he was a former Attorney-General in a Liberal Party government. Whitlam later claimed he specifically prohibited Kerr from seeking advice from Barwick; a claim that Kerr denied.

Kerr appears to have made up his mind on 9 November to dismiss Whitlam. He did not advise Whitlam that this was his intention, indeed actively concealed his intention from Whitlam and his ministers. His justification for this was that he feared that Whitlam would advise Queen Elizabeth (Australia's head of state) to terminate Kerr's commission as Governor-General if he gave any warning of his intention. In acting in this way, Kerr ignored the most recent precedent, that of Sir Philip Game, the Governor of new South Wales who in 1932 dismissed Jack Lang's government. Game warned Lang in advance that if he, Lang, did not take certain actions, then he, Game, would dismiss him. This allowed Lang to seek Game's dismissal if he dared, which he did not.

On the morning of Tuesday 11 November, Whitlam phoned Kerr and arranged to see him in the afternoon, after the Remembrance Day ceremonies. He intended to advise Kerr to call an immediate half-Senate election as a means of breaking the deadlock. After this conversation Kerr phoned Fraser and (according to Fraser's recollection) asked him whether, if he was commissioned as Prime Minister, he would (a) pass the budget bills, (b) call an immediate double dissolution election for both houses of Parliament, (c) make no appointments, initiate no new policies and conduct no inquiries into the previous government, before such elections. Fraser answered yes to all these questions.

(In his memoirs Kerr denied making this phone call to Fraser, but Fraser has been adamant in all subsequent accounts that he did. Since Fraser has no reason to lie about this, it seems probable that the conversation did take place. This means that Fraser knew that Kerr intended to dismiss Whitlam. The two had in effect entered into a conspiracy to deceive the Prime Minister.)

Whitlam arrived at Government House at 1pm. Fraser had already arrived and was shown into another room. Whitlam and Kerr met alone in Kerr's study, and each has given different accounts of what was said. This seems to be the most likely scenario. Whitlam began to tender his advice to Kerr that there be a half-Senate election. Kerr interrupted him and asked him directly whether he was prepared to advise an immediate House of Representatives election. When Whitlam answered "No," Kerr advised him that he was terminating his commission, and handed him a letter to that effect. From that moment Whitlam was no longer Prime Minister, and could take no action to frustrate Kerr's intention to commission Fraser and call an immediate double dissolution.

When Whitlam had left Kerr summoned Fraser and again asked him the questions he had (according to Fraser) put to him on the phone that morning. When Fraser again answered affirmatively, Kerr then commissioned him as Prime Minister, and Fraser then immediately advised Kerr to dissolve the Parliament and call a double dissolution election for 13 December, which Kerr then did. This rendered void Whitlam's attempt that afternoon to overturn his dismissal by having the House of Representatives pass a motion of no confidence in Fraser's government.

Kerr later put forward five propositions to justify his actions:

  • The Senate had the right under Section 53 of the Constitution to block supply.
  • The Government had an obligation to obtain supply through Parliament.
  • If the Government could not obtain supply, it had either to resign or call an election.
  • If the Government refused to do either of these things, the Governor-General had a right and a duty to act to intervene.
  • Since the Prime Minister could at any time advise the Queen to terminate the Governor-General's commission, the Governor-General had a right to dismiss the Government without advance warning of his intention to do so.

After the Dismissal

The news that Whitlam had been dismissed spread across Australia during the afternoon, triggering immediate spontaneous protest demonstrations. Over the following weeks Kerr became the most reviled man in Australia, burned in effigy at Labor rallies, denounced by Whitlam and other Labor leaders as a liar and a defiler of democracy, and lampooned by cartoonists and satirists as a treacherous, sinister, drunken and corrupt conspirator. His wartime work with Australian intelligence and his (very tenuous) link with the CIA through his membership of the Association for Cultural Freedom were dredged up to fuel theories that Whitlam's dismissal had been a coup d'etat engineered from the United States.

Kerr gained vindication of a sort when Fraser won an overwhelming victory in the December elections. Since Whitlam had campaigned almost exclusively on the issue of the iniquity of Kerr and Fraser in plotting the downfall of his government, he could not then deny that the election results represented an endorsement by the electorate of Kerr's actions. But Kerr seems to have gained little satisfaction from this. He found the personal attacks on him and his wife (whom Whitlam and others accused of having been a sinister influence) deeply wounding, though they can hardly have been a surprise. A number of his oldest friends never spoke to him again. The residents of the street in Balmain where he had been born posted him thirty pieces of silver (a reference to Judas Iscariot).

For the rest of his term Kerr was unable to appear in public without encountering angry demonstrations against him: on one occasion his life was in danger when he was unable to leave a speaking engagement in Melbourne except by having his car drive through an angry crowd. Labor MP's refused to accept his legitimacy as Governor-General, shunning all official functions where he was in attendance. There is ample evidence that this situation took a toll on Kerr's nerves. He made three long trips overseas during the remainder of his term. He already had a reputation as a drinker, and this tendency appears to have become more pronounced. When he appeared at the 1977 Melbourne Cup he was visibly intoxicated. Concern about his health may have been one reason why he cut short his five-year term and resigned in December 1977. Fraser offered Kerr a post as ambassador to UNESCO, an offer which he subsequently withdrew under public pressure. After leaving office Kerr lived mainly in Europe until his death in London in 1991.

Further reading

  • John Kerr, Matters for Judgement, Sun, 1979
  • Gough Whitlam, The Truth of the Matter, 1979
  • Paul Kelly, November 1975, Allen and Unwin, 1995


Preceded by:
Sir Paul Hasluck
Governor-General of Australia
1974–1977
Succeeded by:
Sir Zelman Cowen

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