Jenny Hocking. ‘Why Didn’t They Warn Whitlam?: Where Politics and Ethics Collide’

Repost from 16/11/2015

On the 40th anniversary of the dismissal of the Whitlam Labor government a remarkable thing happened – a Liberal Prime Minister finally acknowledged that the Governor-General Sir John Kerr was wrong. In a stark break with the coalition’s long insistence that Kerr had ‘saved the country’ by stepping in and appointing Malcolm Fraser Prime Minister, Malcolm Turnbull repeated his consistently held view that Kerr should not have taken this unprecedented action of removing an elected government without first warning Gough Whitlam.

There are few who would now disagree with Turnbull’s assessment – with the obvious and predictable exceptions of Gerard Henderson, David Smith and David Flint – that Kerr should have warned Whitlam. After all, Kerr had already shared this momentous decision with at least two High Court justices, with the leader of the Opposition Malcolm Fraser – and he had even told his wife Lady Anne Kerr, two days before the dismissal. And Kerr had also confided widely his fear of his own recall, a fear which existed only in the context of his considering dismissing Whitlam. Kerr had made this concern clear to Prince Charles, the Queen’s private secretary Sir Martin Charteris and the Queen herself. It seems that everyone knew something about the Governor-General’s planning, except the Prime Minister Gough Whitlam.

In a remarkable passage from his private papers, Kerr reveals that he had decided to conceal his thoughts from Whitlam, ‘to remain silent to him’, from as early as September 1975 – one month before Supply had even been blocked by the coalition Senators – not only deceiving Whitlam of his thinking from that point on but in the process precluding any opportunity for a more conciliatory resolution. We now know that the extent of Kerr’s deception of the Prime Minister was far greater and more widespread than previously imagined. With every release of new material – posthumous records, interviews, archives and confessional reminiscences – not only has the detail of the dismissal become clearer, the history of it that we had been spun for decades has become weaker.

Whitlam had been elected Prime Minister for barely a year when he said; ‘The importance of an historical event lies not in what happened, but in what later generations believe to have happened’. It reads now as a prescient take on the unsettled history of the dismissal of his government. The simple fact is, we had all been sold a pup. As I set out in Gough Whitlam: His Time and most recently in The Dismissal Dossier, Kerr had told the Palace of his concern for his own position on several occasions and his office had even privately contacted Charteris to discuss it, unknown to Whitlam; Kerr had secretly sought the advice and comfort of not one but two High Court justices; and he had been in secret communication with the leader of the Opposition from at least the week before the dismissal. Each of these critical factors had been at best hidden and at worst denied for years, and the history had been distorted and incomplete while-ever these deceptions continued.

Even Sir Anthony Mason, the High Court justice whose secret involvement in Kerr’s planning and the dismissal was more significant than any, now states that he told Kerr that he must warn Whitlam of his intention, ‘or run the risk that people would accuse him of being deceptive’. While the role of the Chief Justice of the High Court Sir Garfield Barwick had long been known, Mason’s extensive role had been hidden for 37 years, one of the many startling historical secrets to have come from Kerr’s private papers, revealed in Gough Whitlam: His Time. Kerr and Mason’s secret interactions began in August 1975 in Kerr’s words, ‘fortifying me for the action that I was to take’. Mason’s involvement was not merely advisory it was direct, to such an extent that he prepared a draft letter of dismissal for Kerr. It is simply extraordinary that Mason can yet claim that he did not ‘encourage’ Kerr to dismiss Whitlam. The capacity of all parties to deny any active role much less responsibility for what followed, despite their own failure to warn Whitlam, reflects a moment where politics and ethics collide.

The long-secret exchanges between Kerr and Mason not only compromised the separation of powers and the relations between the High Court and the executive, in keeping them hidden from public view for 37 years a further deception was played out on its history. In Sir Anthony Mason’s now well-known words to me on this, ‘I owe history nothing’. It is hardly surprising then that questions have been raised over Mason’s statement that he urged Kerr to warn Whitlam.

A critical element in Kerr and Mason’s differing views on this aspect of their pre-dismissal interaction is Barwick’s advice to Kerr. Barwick’s advice was written on 10 November by which time, as Barwick describes it, Kerr had already ‘determined’ on dismissing Whitlam. Barwick concludes that Kerr’s decision was ‘consistent with your constitutional authority and duty’, and makes no mention of Kerr having to warn Whitlam. On the morning of 10 November, between High Court sittings in Sydney, Barwick showed his advice to Mason, who ‘quite agreed with the view I had expressed’. Mason himself later wrote that he did not differ on any ‘matter of importance’ with Barwick’s advice – despite the fact that Barwick’s advice did not raise in any way the need to warn Whitlam.

It is difficult if not impossible to reconcile Mason’s unqualified agreement with Barwick’s advice with his more recent claim to have told Kerr that he must warn Whitlam, ‘as a matter of fairness’, before taking the unprecedented step of removing him and his government from office. The history of the dismissal is clearly not over yet.

 

Jenny Hocking is professorial Fellow with the National Centre for Australian Studies at Monash University and the Inaugural Distinguished Whitlam Fellow at the Whitlam Institute at the University of Western Sydney.  Her most recent book is ‘The Dismissal Dossier, everything you were never meant to know about November 1975’ published by Melbourne University Press.

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