John Kerr (original) (raw)

Sir John Robert Kerr (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.

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 breakway 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 was appointed Chief Justice of New South Wales in 1972. When Sir Paul Hasluck retired as Governor-General in July 1974, the Labor 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 Labor Party 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

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, including the Deputy Prime Minister, Jim Cairns. The Liberal Opposition Leader, Malcolm Fraser, decided to use the Senate to block the government's budget bills, thus forcing an early election (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 Governor-General had come to be seen as almost entirely ceremonial, and therefore politically unimportant. But it was not. The Governor-General retained all the reserve powers of the British Crown, whose representative in Australia he was. These powers included the power to dismiss a Prime Minister, for any reason or no reason, and appoint another one. The fact that these powers had not been used in Britain since 1834 did not mean they had been abolished. The doctrine that the Crown must always act on the advice of a Prime Minister who had the confidence of Parliament had reduced the circumstances in which the reserve powers might be used, but they were still there.

Kerr, as a lawyer of considerable learning, was well aware of this. In a nice irony, one of the reasons he knew this was 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 blocked supply in the Senate, 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 would not have been able to pay its employees, but it would be some months 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.

The Dismissal

Sir John Kerr and Malcolm Fraser

Kerr had another meeting with Fraser (with Whitlam's approval) on 6 November. At this meeting Fraser turned up the heat 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.

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 immnediate 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 proposition to justify his actions:

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 treacheous, 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 due to the size and ferocity of the 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. 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 under the influence. Concern about his health may have been one reason why he cut short his five-year term and resigned in December 1977. After leaving office he lived mainly in Europe until his death in London in 1991.

Further reading

Sir John Kerr (born in Scotland) was the Secretary-General of the European Convention.