Pearls and Irritations

The Palace letters provided two crucial elements of the dismissal by Governor-General Sir John Kerr of Prime Minister Gough Whitlam on 11 November 1975. The first was to stiffen Kerr’s resolve – to give him the backbone – to sack Whitlam. The second was to ensure that Kerr gave Whitlam no fore-warning of what he was about to do.

What the letters did not do was persuade Kerr he had the legal authority to use the controversial ‘reserve powers’ of the Governor-General. He was in no doubt however about that power, based on his own knowledge and beliefs, plus the advice of the Chief Justice of the High Court, Sir Garfield Barwick, and another of the court’s justices, Sir Anthony Mason.

The Palace provided him with comfort. That he was fulfilling his task as Governor-General and that he was helping protect the monarchy from any repercussions. In the short run he succeeded – we rejected the Republic in 1999. In the long run, the Palace will prove to have been wrong, now that we know its role in the Dismissal: ultimately this will count in the move to an Australian republic.

But to return to what the letters did achieve. It needs to be understood that while Kerr was, as he described himself in one of the letters, ‘an extravert and activist’, he was also a frustrated would-be politician, who twice in his lifetime considered that he could become Prime Minister: firstly as a Labor Prime Minister, and a decade or more later, as a Liberal. This was no secret ambition – it was the view of many of his contemporaries.

Kerr wrote in his autobiographical defence of his actions, ‘Matters for Judgment’ that several months before the dismissal Whitlam, in a private conversation, had said to him:

‘Everyone tells me that if things had worked out right you would have been in my job.’ He added, ‘My opinion is, John, that you would never have made it. And the reason why you wouldn’t have made it is that you are not ruthless enough.’

Kerr ultimately proved Whitlam wrong. Or perhaps right – because Kerr before he could act, needed to know he had the backing of the Palace and of people he looked up to like Menzies, whose subsequent congratulatory letter he copied to the Palace, along with press clippings of all those who cheered his actions. Even after the event he needed the Palace to persuade him that he should not give in and resign.

As for the references in the Palace letters to the on-going validity of the reserve powers, he needed no coaching in that area. He had, after all, been a law student at Sydney University in 1932 when the NSW Governor, Sir Philip Game, sacked the Labor Premier, Jack Lang, during the Depression. And he had read and absorbed the lessons from that and other times the powers had been exercised as explained in ‘The King and his Dominion Governors’ written by his personal mentor, the then High Court Justice, Dr H. V. Evatt.

He may not have been a constitutional lawyer himself (nor, in his previous position as Chief Justice of NSW, did he need to be), but he did have contemporary advice from Sir Garfield Barwick and Sir Anthony Mason, on the use of this controversial power.

Mason’s advice was however tempered: before using the power Kerr should warn Whitlam of his intention to do so.

But that would lead to what has been called the ‘race to the Palace’, and to who would sack whom, first. Here there was no comfort for Kerr in the Palace letters.

Kerr had first raised this problem with Prince Charles when they were in Papua New Guinea for its independence celebrations in mid-September – so Kerr was contemplating that he might sack Whitlam almost two months (at least!) before it happened. The word got back to the Palace, as Kerr intended.

On 2 October, almost six weeks before the dismissal, Kerr was told that if an approach was made by the Prime Minister to have the Governor-General sacked:

‘you may be sure that the Queen would take most unkindly to it. There would be considerable comings and goings, but I think it is right I should make the point that at the end of the road The Queen, as a Constitutional Sovereign, would have no option but to follow the advice of her Prime Minister.’

Kerr didn’t respond directly but this reply raises two issues: first, while these ‘comings and goings’ are happening, could the governor-General still sack the Prime Minister, and two, why this delay? Why the ‘comings and goings’?

However it would have been clear to Kerr that no matter how much the Queen might be sympathetic to him, she would have to act on the advice of her elected Prime Minister. As if this could ever have been doubted.

So Kerr would inevitably have concluded: no warning for Whitlam. In the meantime, any hints about what he would do that Kerr delivered directly to Whitlam or through his Ministers, would be along the lines that of course the Governor-General would act as required by the Prime Minister.

Kerr’s letters to the Palace go far beyond the traditional reporting role that vice-regal representatives throughout the Commonwealth apparently consider proper. Kerr mistakes his own role. The Constitution makes him the Queen’s representative in the sense that he acts in the Queen’s place.

Kerr goes beyond that. Rather he elevates himself (and his importance) to be a defender of the Queen and the monarchy, protecting it especially from the consequences of his own controversial actions by providing the Palace with plausible deniability about his intentions (helped by the permanent secrecy intended to be attached to their joint communications).

That was wrong, as was the apparent encouragement of the Palace for him to provide the latest tittle-tattle and gossip about events in Canberra.

The Palace should have disengaged from the debate about what he should do from the moment it learned through Prince Charles that Kerr was considering sacking the Prime Minister, who had been re-elected by the people just over a year earlier.

There was only one proper message for the Queen to send to her representative in Canberra and that was included in the response of 2 October: ‘The Queen, as a Constitutional Sovereign, would have no option but to follow the advice of her Prime Minister.’ The same applied to the Governor-General.

Instead the Palace effectively encouraged him to remove the Prime Minister.

Little wonder that it tried to keep the letters secret.

David Solomon was one of Gough Whitlam’s press secretaries in 1975. The following year he wrote ‘Elect the Governor-General!’, a book that explored the powers apparently given to the Governor-General in the Constitution and how they could be controlled in a democracy.

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