John Menadue   We still need to address the defects in our constitutional arrangements that November 11 1975 revealed.

Mar 31, 2015

We have rightly been remembering the achievements of Malcolm Fraser on human rights and race.

But we should not forget the enormous damage that the events of November 11, 1975, did to Australian public life and trust in our institutions. Conservatives keep highlighting the shortcomings of the Whitlam governments in order to hide their complicity in the deceit and Vice-regal intrigue, even with High Court Judges, that brought about the dismissal of the Whitlam Government that had a clear majority in the ‘people’s house’, the House of Representatives.

In speaking kindly of Malcolm Fraser in later years, Gough Whitlam said that ‘Malcolm was a ferocious opponent, but he never deceived me’.  He correctly stopped sort of absolving John Kerr of deceit.

In my autobiography, ‘Things you learn along the way’, published in 1999, I wrote.

Governments can’t legislate for trust and decency. Those values are not anywhere in the Constitution. But they underpin the whole foundation of how we operate in a civilised community towards each other. Those values are the glue that holds us together. On 11 November, what was expedient became more important than doing what was right. Trust in ourselves and our institutions was dealt a severe blow.

 There was something quite unfair and dangerous about it all in a way that I could not accept then or now, almost 25 years later. An accelerating decline in trust in politicians, the political system and public institutions began in 1975. Conservatives had damaged state parliaments in NSW and Qld by refusing to follow the convention that casual Senate vacancies were filled by a member from the same party. Led by conservatives, the Senate broke a convention of centuries that governments are made and unmade in the ‘people’s house’. The High Court, through the political intervention of its Chief Justice, was compromised. The media, through News Ltd particularly, abused its power. The Governor-General’s Office was damaged more than any other institution. I never again felt the same confidence in our institutions. …

The Palace was not amused by what Kerr had done. I learned of this later from a note from Tim McDonald, the Official Secretary at Australia House, London, who relayed to me a discussion he had had  with Sir Martin Charteris, who was personal secretary and political adviser to the Queen at the time. The discussion that McDonald had with Charteris was within a few weeks of the dismissal. Commenting on the Whitlam dismissal, Charteris said to McDonald that ‘the Palace shared the view that Kerr acted prematurely. If faced with a constitutional crisis which appeared likely to involve the Head of State, my advice would have been that [the Queen] should only intervene when a clear sense of inevitability had developed in the public that she must act. This had been Kerr’s mistake’. A clear sense of inevitability had not been arrived at.

In considering whether Kerr acted prematurely in a political dispute it is important to consider three points: first, the Opposition was clearly losing momentum. Whitlam was dominating the parliamentary forum and on the deferral of supply, opinion polls showed 70 per cent favoured passing the budget and the Government had dramatically improved its political standing to be running neck and neck with the Opposition. Secondly, supply would not run out until at least 30 November. The Governor-General could have waited almost three more weeks. …. Thirdly, newspapers were full of speculation at the time and confirmed afterwards that some Opposition senators were ready to break.

Senator Reg Withers, the Leader of the Opposition in the Senate in 1975, is quite clear. Ten years later in the Australian, on 6 November 1985, he said: For all I know, my blokes might have collapsed on the 12th. I don’t know. You just hope day after day you would get through until the adjournment … There were two Senators who told me they were prepared to go … I reckon we had another week. If I had got through that week then you would look at the following week. I would have lost them some time about 20 November onwards. I know I would have lost them in the run up to 30 November, but it wouldn’t have been two then, it would have been ten.’

In retrospect it is clear to me that John Kerr’s intervention saved Malcolm Fraser from a humiliating defeat.

The heartfelt tributes to Malcolm Fraser since his death, including my own, should not obscure the damage that John Kerr in particular did on November 1975. We still need to address our defective constitutional and political arrangements that made the dismissal possible. And Conservatives should stop hiding their complicity in the dismissal by referring unceasingly to the shortcomings of the Whitlam Governments.

Note:  My full account of the dismissal in my autobiography can be obtained by clicking on ‘John Menadue website’ at the top left-hand of the home page and then clicking on ‘book’ on right-hand side. The chapter on the dismissal ‘A job on the line, John Kerr’s or Gough Whitlam’s’ commences on page 139.

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