Jack Waterford. It’s time: The Dismissal gave us knockout punch politics, now we should get rid of it.

One has to be of a certain (old) age to remember intimately, as I do, the tumultuous events of November 11, 1975. I knew then that I was being a witness to history and, sometimes, metaphorically pinched myself to be sure I remembered.

Nearly 40 years on, it remains the most sensational event of Australian politics since federation, but it is now, for three quarters of the population something that happened before they were born or before they had the least interest in Australian politics.

Paul Kelly, emeritus editor-at-large of The Australian, has issued or re-issued what must be the fifth update of his book about the Dismissal, each fresh version containing more material and documents from the player and the archives. He has written other books, some the size of house bricks, but perhaps his first, second, third and subsequent drafts of the history of 1975 are the best.

This week he (and the co-author of the latest version, Troy Bramston) announced that they had fresh documentary material tending to suggest that the Governor-General, Sir John Kerr, had tipped the wink to Malcolm Fraser, Leader of the Opposition, before dismissing Gough Whitlam. They have a statutory declaration from Malcolm Fraser, a (relatively recently rediscovered) contemporaneous note of a phone call between Fraser and Kerr, and testimony from Sir Victor Garland, the last of the players in the room as Fraser was taking the call and scribbling down notes.

The suggestion that Fraser knew what was going to happen is not new. There were always allegations of the wink having been given, in spite of explicit denials by Kerr. Reg Withers, who was leader of the opposition in the senate, said soon after he and Fraser fell out that Fraser had been tipped off, by Kerr, about his intentions. This meant that Whitlam, as Prime Minister, went into a final parliamentary confrontation with Fraser, and the ultimate meeting at Government House, where he was given a document sacking him, completely unaware that Kerr had already drafted his letters of dismissal. [Nor did Whitlam know, as several High Court judges did, that Kerr had taken advice about his actions from the Chief Justice, Sir Garfield Barwick, against explicit instructions from Whitlam himself.]

Similarly, Fraser had said, once the event was ancient history, that Kerr’s questions to him, on the morning of the Dismissal, made him certain that Kerr was about to act to sack Whitlam and to appoint Fraser to lead a caretaker government pending a double dissolution election.

Kerr, in his memoirs, agreed that he had called Fraser to confirm that the opposition’s refusal to grant supply “remained the same. But, he claimed “I said nothing to him about the situation”.

By whatever version, it is fairly plain that Whitlam was ambushed, and had little idea of what Kerr had been contemplating. Supporters of Kerr defend Kerr’s secretiveness and deception on a reasonable fear, given things Whitlam had said, that if he had suspected Kerr planned to sack him, he would have rung the Queen at Buckingham Palace and had Kerr dismissed instead. In the selfless version of this, Kerr’s motive was not to save his own job, or skin, but to prevent the Queen getting involved in politics.

The latest draft of the history adds weight to the idea that Kerr was a shit. He consciously deceived Whitlam. But I doubt that its new disclosures much alter whatever instinctive views people who remember had at the time. For some, the sacking was an assassination, a dastardly deed done to a legitimate (and wonderful) government. To others, the sacking seemed to be the deliverance of the Australian people (and the economy) from the greatest vandals and incompetents the nation had ever known.

Merely proving that the actual story was a little more complicated than one thought at the time is unlikely, for most, to affect such emotional and passionate views of the time. For some on both sides, indeed, there had always been some sense that desperate times required desperate deeds, with means being judged by ends.

I should think that most of those who were not born, or can’t remember the event, have at best only an intellectual curiosity in the points of detail. At worst they could not care less, because, even if they are dimly aware that it happened (as they are dimly aware of Gallipoli, or World War II, or the Spanish Armada, or the Vietnam War), they have no feel for how it has influenced events.

I am one of the Whitlam sentimentalists who thought then, and still does, that Kerr should not have sacked Whitlam.

But I have always parted company with the most ardent Whitlamites in that I never doubted, as they did, that a governor-general had the power, perhaps the duty, to dismiss a government which was unable to get parliamentary approval for its spending programs. My argument with Kerr is about his timing, about his judgment of events, and about his getting into the ring. A wiser man would have waited, and then, probably, nothing would have happened requiring his intervention

I am bolstered in this opinion by the fact that Sir Paul Hasluck, a very good governor-general who had been a Liberal politician, thought much as I did, and, as it seems, so did most of the Queen’s constitutional advisers at Buckingham Palace. One does not, of course, know what HM thought, but the hint has always been that she did not approve.
Whitlam, and both his attorney-general and solicitor-general, denied that a GG had the power to dismiss a government with the confidence of the House of Representatives. This was an arguable view, but far from the conventional one, and there were many, including former Labor leaders, who had never doubted this “reserve” power . Whitlam took too much for granted in assuming that Kerr saw himself as a mere constitutional rubber stamp of the government of the day.

Whitlam’s righteousness and belligerence was bolstered by the way that Liberal and Country Party premiers, with some connivance from their federal colleagues, had stacked the Senate. Had convention been followed after (Labor) Senator Lionel Murphy had gone to the High Court and (Labor) Senator Bertie Milliner gone to his reward, they would have been replaced by Labor nominees, and Labor would have had the numbers to get its appropriation bills through the Senate. But NSW premier Tom Lewis and Queensland premier Joh Bjelke Petersen ignored convention, with the result that the Senate numbers involved, at best, a tie, at worst an opposition win. And, in the Senate, a tie is a defeat.
Fraser said Coalition senators would not pass the supply bills unless Whitlam agreed to an immediate election of the House of Representatives. The Senate never actually refused supply; it simply failed to pass it. Fraser believed he had, in his own words, caught Labor “with its pants down”. The government was suffused in (Loans Affair) scandal, and there were murky insinuations of corruption, lying to Parliament, and moral turpitude. Heady days!

Fraser was relying on legal advice, from a shadow minister who had been a former solicitor-general, as well as a top Sydney barrister later to become a governor-general, on what had to happen to a government which could not secure supply. This said that Sir John Kerr would have to act once it seemed likely that the government’s money would run out. Whitlam, by contrast, said the Senate had no business in refusing supply, and that he would govern on without its assent, if necessary by an elaborate system of bank IOUs.
Until the money looked like running out, it was a political crisis, not a constitutional one.
It was also a game of political chicken.

Both sides pretended they would not give an inch, but there were clear signs of nervousness in Coalition ranks about how long the confrontation could go on. It is generally accepted that some opposition senators had been close to “cracking” – which would have almost certainly caused the political demise of Fraser. But Fraser kept his nerve, and refused even a late concession by Whitlam offering a half-senate election instead of a House of Representatives one.

Kerr had made an offer to mediate between Whitlam and Fraser, meaning he had formal conversations with both sides alone and formally knew their thinking. But he had a number of conversations with Whitlam which had the effect of making Whitlam think Kerr was on-side.

The strongest continuing criticisms of Kerr involve his deception of Whitlam and the argument that he acted before he had to. The political crisis had not reached the point of requiring vice-regal intervention. Kerr was thinking less of when the money would run out, and more of the last day in which there could be a pre-Christmas election, then, back-counting, the deadline for an election to be called. Given school holidays, and the effective impossibility of a January election, November 11 was the deadline for dissolving Parliament; if it were to be later, there could be no election, and, possibly no supply, until mid-February. That set his timetable.

Supply crises were rare but not unknown in Westminster systems. But taking the chicken game to its ultimate conclusion has not been done, whether in Canada, Australia or its states, in other old British colonies.

But it has now happened in Washington, though it had not (at least in any serious way) in 1975. If a president cannot settle a budget with both houses of congress, government can shut down, with many public servants having to be laid off, and many pensions and programs being in suspense. Generally this has led to major compromise by both sides, in the manner that America’s division of powers seemed to intend.

Both Bill Clinton and Barack Obama have confronted very hostile legislatures and let their money run out. They have reasoned, as it turned out accurately, that the American public would blame legislatures if pensions were not paid and operations of government were allowed to grind to a halt. It’s been untidy, but effective politics. Here it may be – but is not yet – an argument that in a future crisis a governor-general might allow a Whitlam to carry on without supply (and without any nonsense about IOUs).

Maybe preserving supply is not, from a governor-general or president’s point of view, the highest aim of government.

But while one can regret that Whitlam was deceived, ambushed and politically destroyed, one must still criticise him for his blindness about his legal and constitutional position, and his willfulness about not covering his back.

Fraser was the beneficiary, at least in the sense of winning three terms in government. But it came at a high cost, not least of political legitimacy, and friction in ordinary government and administration. A majority were for him, but a big minority was bitter and rancorous, determined, as Whitlam put it, to “maintain the rage”. The anger was such, sometimes, as to undermine that general consent of the governed without which ordinary government is next to impossible.

And it set the stage for decades of practical politics – still happening – in which animosity between politicians from each side has been visceral, without any tendency for co-operation, compromise or sense of bipartisan national interest.

If that was dying down by the end of the Howard era, after nearly all of the 1975 players had departed the scene, it gained new gall with the spirit that Tony Abbott brought into opposition and later into government. Hard, tough, vicious and highly personalised politics can lead to success, but, often, at a significant cost.

Malcolm Fraser, on being elected prime minister, spoke hopefully of a time when politics was off the front page, and, perhaps, sport dominated the news. That was never allowed him because of the abrasive way he had played the game, and the unsporting manner in which he had gained power. Likewise, John Howard wanted a more relaxed and comfortable Australia, but his own sense of running affairs on full choke made the relaxation of his enemies impossible. Neither Malcolm Turnbull nor Bill Shorten (or, I guess, soon Mark Dreyfus) are so focused on the knockout punch, shirtfronting, or running out the person at the bowler’s end.

It’s time.

Jack Waterford was formerly Editor in Chief of the Canberra Times. He is now Editor at Large of the Canberra Times. This article was first published in The Age on 6 November 2015.

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