“I thought it no bad thing that the public in Australia and, perhaps, also those in other monarchical Commonwealth countries, not excluding Britain, should have been reminded that the Crown possessed reserve powers.”  Sir John Kerr to the British High Commissioner to Australia, December 1975.

When offered the position of Governor-General by Prime Minister Whitlam in 1974, Sir John Kerr consulted friends and colleagues as to whether he should accept the appointment. One of them, Justice Robert Hope, queried why he would take such “a dead-end job, a hopeless job”. Kerr’s response was: “Oh, no, it’s a very powerful position. It has much more power than you realise”.

In making this assertion, Kerr was suggesting the powers of the crown were greater than was conventionally accepted. Kerr’s actions in 1975 were enabled by two assumptions about the Australian constitution, both controversial and neither of them proven. The first was that the Senate had the power to reject a ‘money bill’ and thereby force a dissolution of the parliament. The second was that the Crown had the power to dismiss a prime minister who could command a majority in the House of Representatives.

Kerr had specialised in industrial law and perhaps was unfamiliar with Walter Bagehot’s book, The English Constitution, published in 1867. Bagehot, who remains the most respected authority on Westminster constitutions, based his analysis on the fundamental principle of parliamentary sovereignty and its supremacy over the Crown. Even in 1867, when Britain had only a rudimentary democracy, Bagehot considered that so-called ‘reserve powers’, allowing the Crown to dismiss a prime minister, were archaic and no longer existed.

When Malcolm Fraser announced in mid-October 1975 that the opposition would block supply in the senate, one problem for Whitlam was the sense of chaos the Murdoch media, in particular, had fomented in the wake of the loans affair had changed the basis of the debate. The discussion was now not so much about the principles and conventions around the blocking of supply but more an argument over the legitimacy of the Whitlam government. Many of the media articles and editorials calling for Whitlam’s dismissal came back to a polemical argument that the government was dangerously incompetent and should be forced to an early election to allow Australians the opportunity to make a judgement on its fate. There was no basis for this under the constitution.

An early indication that Kerr was responsive to this sentiment is that from the moment that Malcolm Fraser declared he would block supply, as Hocking shows, the governor-general seemed to regard the contest as a mano a mano, ‘win at all costs’ showdown between two determined and stubborn equals. In the eyes of the Crown, however, the prime minister and leader of the opposition should not have been treated equally. The governor-general was bound to act on the advice of the prime minister.

Yet if Kerr was considering dissolving parliament, with or without the dismissal of the prime minister, he needed two conditions to be fulfilled, one legal and the other practical. First, he needed to be confident that he had the power under the constitution to take these extreme actions. Secondly, if he were to dismiss the prime minister, he needed to have a sufficiently high level of support from the media and the Australian Establishment to allow him to survive the level of outrage he could expect from Whitlam’s vocal supporters.

In addressing these matters, Kerr sought and received advice from many quarters without the agreement of the prime minister.

The Palace

From early in his term, Sir John Kerr indulged in a voluminous correspondence with Sir Martin Charteris, principal private secretary to Queen Elizabeth. In a recent article, two constitutional experts from Oxford University, Iain McLean and Scot Peterson, consider in detail the advice that Charteris provided to Kerr in the period leading up to Whitlam’s dismissal. First, they question the propriety of Kerr approaching Charteris at all: “as recently as 1975, Australia’s governor-general was consulting a British public official rather than one in his own country”. Charteris was employed on the staff of the Queen of the UK, not of Queen Elizabeth in her role of Australia’s de jure head of State. As Australia’s de facto head of state, Kerr had the same powers under law as the Queen and he had his own Australian staff, headed by his official secretary David Smith.

The tone of Kerr’s letters – “sycophantic grovelling” in Malcolm Turnbull’s view – with their regular request to Charteris to convey to the British Queen his “humble duty”, suggests he believed he was writing to the monarch by proxy. That goes to Jenny Hocking’s view that Charteris was the Queen’s amanuensis, or scribe, and therefore that any advice or opinion from him was equivalent to advice from the Queen herself.

Charteris’ role, however, was far more important than that of a mere scribe. He was the Queen’s principal adviser and had been on her staff for quarter of a century. If he communicated the Queen’s view on any issue to a third party, he would make it clear he was doing so officially and on behalf of the British Crown. Otherwise, he was presenting Kerr with his personal opinions and advice. Charteris had no official role with the Australian Crown and was scrupulous in marking his letters to Kerr as “Personal and Confidential”. According to Tim McDonald – then official secretary at the Australian High Commission in London who had regular dealings with the Palace – Charteris “knew immediately what he was dealing with: a naïve, vain, insecure personality who could be manipulated to British advantage”.

There is no reason why the British Crown would be party to any attempt to get Whitlam dismissed. The Queen dealt with Commonwealth leaders of every political stripe and personality, including characters like Idi Amin and Robert Mugabe, without feeling the need to conspire to overthrow them. Indeed, the danger for the Queen was that if Whitlam were unjustly dismissed at the hands of the Crown, the resulting storm could possibly sweep away the monarchy in Australia.

It is therefore difficult to disagree with McDonald’s view that Charteris’ main aim was to protect the Crown from any involvement in the crisis: “Charteris establishes himself as the firewall between Kerr and any possibility of the monarchy being involved in the governor-general’s political responsibilities.”

Yet in providing Kerr with his own prejudiced opinion on the prerogative of the Crown, as he did, Charteris was playing a dangerous game. In the study by McLean and Peterson, Charteris figures as a later addition to a line of three “irresponsible advisers”, as constitutional expert Ivor Jennings had called them, who during previous twentieth century crises provided highly questionable advice to British monarchs.

The difference in this instance was that Charteris was providing advice on an all care and no responsibility basis to an “unelected official” in a faraway country, thrust into an unfamiliar role in which, in contrast to the Queen, he had no experience and had undertaken no training. While Kerr might consider dismissing an elected prime minister with a majority in parliament, Charteris would have known it was an action the Queen would never contemplate in Britain.

As evidence of the irresponsibility of Charteris’ advice, McLean and Peterson identify three points Chateris conveyed to Kerr. The first of refers to the most relevant precedent to the events of 1975, where the Canadian governor-general, Lord Byng, controversially forced the resignation of the prime minister, Mackenzie King in 1926. Reflecting later on Byng’s actions, King said “the kernel of the whole thing is the divine right of kings”, in other words Byng didn’t understand the supremacy of parliament. Charteris endorsed the opinion of the Canadian Eugene Forsey, who according to McLean and Peterson is “the only recognised authority who thought that Byng was right to dismiss King”. As Charteris later told Kerr, “my friend, Eugene Forsey is a stalwart upholder of the prerogative of the Crown”.

Secondly, Charteris takes Fraser’s view over Whitlam’s by stating the Senate has the right to reject supply. He does this on the questionable basis that the Constitution is silent on the matter.

Thirdly, Charteris “warns Kerr, writing from Balmoral, that if Whitlam seeks Kerr’s dismissal, the Queen would ‘take most unkindly’ to the request but would ultimately agree to it’.” This provided Kerr with a warning that if he were to dismiss Whitlam, he would have to make his move first.

Charteris’ endorsement of Forsey would have appealed to Kerr because Forsey’s views are at the extreme end of the spectrum in terms of the powers of the Crown. As McLean and Peterson say, they directly contradict the opinion of Bagehot, Jennings, Asquith and the Australian HV Evatt, who is also a recognised authority. Charteris also quoted Forsey approvingly as saying that a government’s inability to secure supply must always result in a dissolution of parliament. Yet Forsey later revealed that he was unaware of Australia’s constitutional provision for a half senate election.

Charteris did not suggest in any way that his views were reflective of the official views of the Queen. Indeed, he made it clear to Kerr on 5 November that while the Queen was being kept informed, “this does not mean that she has any wish to intervene, even if she had the constitutional power to do so. The crisis, as you say, has to be worked out in Australia.”

Charterises’ “irresponsible advice” would have reassured Kerr both that he occupied “a very powerful position” and that if he did exercise the reserve powers the Palace was unlikely to cut him loose. It has been widely suggested that Charteris’ letters to Kerr in early November gave him the green light for Whitlam’s dismissal. In response to other observers who reject the view they provide a ‘smoking gun’, McLean and Peterson say “we see at least a wisp, of smoke. It lingered.”

The Sydney Bar

Early in the crisis, Kerr had been provided with a legal opinion by Robert Ellicott, shadow attorney-general and a former colleague from the Sydney Bar. Ellicott’s opinion was even more extreme than Forsey. In response to Kerr’s request, the government provided him with a lengthy draft opinion from the government’s senior law officers who were public officials. The opinion ran to 6,000 words and covered the issues in considerable detail. The law officers stated the reserve powers were obsolete. McLean and Peterson wrote approvingly that their advice “follows Bagehot, Asquith and Jennings in asserting that the governor-general has no power to dismiss a prime minister who retains the lower house’s confidence”.

This was a sound opinion that constituted the government’s advice to the governor-general. Arguably, Kerr was obliged to accept it. It provided Kerr with a clear avenue to resolve the crisis. He could have used his right to warn Fraser that he would not dismiss the prime minister while he had a majority in the House of Representatives. Instead, the governor-general would accept a prime ministerial request for a half Senate election. The indications are that Fraser would have accepted this advice and ceased to block supply.

But Kerr did not find the law officers’ opinion to his taste. He asked Whitlam for permission to consult the Chief Justice of the High Court, Sir Garfield Barwick. Barwick was another colleague of Kerr’s from the Sydney bench and, having been a cabinet minister under Menzies, a former political adversary of the Whitlam’s. The prime minister refused. As he said later, he advised Kerr, “he should not consult with the chief justice on matters that might ultimately come before the High Court”.

Kerr disobeyed Whitlam and consulted the chief justice on 9 November. By then he had already determined he would dismiss the prime minister, as he clearly advised Barwick. Kerr’s objective was to confirm that his decision could be defended on legal grounds. In an opinion that ran to just 450 words, with no supporting analysis, Barwick provided this on 10 November. Perhaps coincidentally, his advice followed Forsey. He wrote, if Kerr was satisfied the prime minister could not obtain supply, “the course upon which Your Excellency has determined is consistent with your constitutional authority and duty”. Barwick’s advice lacks credibility as a ruling. It has the hallmarks of a KC’s opinion provided to support a course of action his client had already decided to pursue.

Again improperly, Kerr also consulted Sir Anthony Mason, another justice of the High Court and former colleague at the Sydney Bar. Mason agreed Kerr could dismiss Whitlam under the reserve powers. He was, however, strongly of the opinion that it was Kerr’s duty to warn Whitlam first and provide him with the opportunity of contesting the election as prime minister.

The British government

While Gough Whitlam opposed a dissolution of the lower house to resolve the supply crisis, he was more favourably inclined to an election for half the Senate. This would allow the election of two new senators to replace those appointed by state premiers in NSW and Queensland These new senators would take their seats immediately the results were declared and not have to wait until next July. However, the premiers of those two States had broken a further convention by saying they would instruct their governors not to issue writs for a half Senate election. The federal government lacked the power to intervene with state governors because – another “colonial relic” – they operated under the British Crown and were appointed on the advice of the British government.

While Charteris was initially drawn to this option, he soon became wary on the grounds it might involve the Queen in Australian politics. On 16 October, Sir Michael Palliser, Permanent Under-Secretary of the British Foreign and Commonwealth Office, arrived in Australia to meet Sir John Kerr. As Anne Twomey has explained, his concern was that Whitlam would instruct Kerr to intervene with the Palace to ask the Queen, wearing her British Crown, to intervene with state governors. If Kerr refused, as he could on the grounds it lay outside his jurisdiction, Whitlam himself might intervene with British Labour prime minister, Harold Wilson. In either case, the Queen inevitably would become involved.

This was a curiously secretive mission. Apparently, Palliser met no Australian officials. It would have been a breach of protocol for Australia’s head of state to meet a top-level representative of a foreign power with no Australian official present. John Menadue advises the prime minister’s department was unaware of Palliser’s visit.

Palliser emerged from the meeting with Kerr, confident he would protect the Queen from becoming involved. If so, Kerr should not have provided such an assurance. He was acting in the interests of the British Queen not the government of Australia. It appears he never raised the issue with the prime minister. After the event, the governor-general’s private secretary, David Smith, said that if Whitlam had not gone to Government House on 11 November seeking a half-Senate election, the dismissal would not have taken place.

The Five Eyes

In the last three weeks before Kerr dismissed Whitlam some serious issues with the security agencies arose. They would have been of concern to the governor-general, who took very seriously his responsibilities as commander-in-chief

First, on 21 October, reacting furiously to a misunderstanding over a supposed agent being run in Timor, Whitlam dismissed the head of ASIS, Bill Robertson and appeared to threaten to abolish his agency as well. Robertson was highly regarded, including by Justice Hope, Royal Commissioner on the security services. Hope was another of Kerr’s friends from the Sydney Bar and it is likely they conversed regularly on security matters. Both Hope and Kerr were concerned at the dismissal of Robertson, who regularly briefed the governor-general on intelligence issues “over his 11am whisky”. The opposition was also concerned; Whitlam noted when Fraser was justifying to senior executives in the media the blocking of supply, the main reprehensible circumstance he cited was not the loans affair but the dismissal of Robertson.

This had wider ramifications because essentially, ASIS operated as a branch office of MI6, whose chief, Maurice Oldfield, would have been highly concerned at Whitlam’s apparent threat to abolish it. Following his sacking, Robertson would have shared his opinion on Whitlam with Oldfield and probably advised him he had provided a memorandum to Fraser and Andrew Peacock via the Melbourne Club. What action was taken by Oldfield, if any, is unknown. Unlike the CIA, MI6 records are sparse. Richelson and Ball note that while MI6 made 697 calls to ASIS in 1974, the number increased to, 1,211 in 1975. It seems likely that Oldfield gave the CIA the green light to intervene in Australia, as Five Eyes protocols required, but did not involve the British government in any operational sense.

By early November, in his own mind at least, Whitlam was riding high, convinced that Fraser would retreat and, like Asquith in 1911, he was on the verge of a major victory over an anti-democratic upper house. Despite some doubts among his colleagues, he was confident “my Viceroy”, as he called Kerr, would never use the reserve powers to dismiss him.

It was unfortunate that he chose this time to open a new campaign against the CIA. He was furious to discover that Pine Gap was not an installation controlled by the Pentagon as he had been told by Sir Arthur Tange, but an espionage facility run by the CIA. He had also discovered that undeclared CIA agents were operating in Australia and, further, he accused the Country Party of accepting funds from the Agency. Whitlam was scheduled to answer a written question in Parliament on these matters on 11 November while the lease on Pine Gap was due for renewal on 9 December.

The US administration responded on two levels. First, as Secretary of State, Kissinger sent a cable to the US Embassy in Canberra on 4 November authorising an approach to the Australian government “at the highest level” stating that Whitlam’s allegations “could have damaging fallout on other aspects of US-Australian relations”. The prime minister did not change course.

Secondly, on 8 November, the CIA’s Ted Shackley sent an agency-to-agency demarche to ASIO. It said the US could not see how the issues raised by Whitlam could do other than “blow the lid off those installations in Australia where the persons concerned have been working and which are vital to both of our services and countries, particularly the installation at Alice Springs”. Unless the problems could be resolved, the Americans “could not see how our mutually beneficial relationships are going to continue.”

This demarche – perhaps “the most serious note passed to Australian authorities in the history of bilateral relations between Australia and the United States” – reflected very great concern over the possible exposure of CIA activities in Australia, the role of Pine Gap and the possibility that Whitlam might terminate the facility’s lease. Sir Arthur Tange, self-appointed chief spook, told Whitlam’s staff that the demarche, which he interpreted, probably correctly, as an ultimatum in regard both to ANZUS and Australia’s continued membership of the UKUSA intelligence group, represented “the greatest ever threat” to Australia’s national security. After making one last vain attempt to get Whitlam to back down, Tange ensured the message was conveyed to the governor-general by the Chief Defence Scientist, John Farrands.

*****

When the governor-general dismissed the prime minister and his ministers on 11 November, the legal basis for his decision was unsafe. Sir John Kerr also made several errors in terms of the process.

First, Kerr had said in letters to Charteris he would only take action when the political crisis had turned into a constitutional crisis, by which he meant the Senate had rejected supply. The advice from the chief justice was conditional on the governor-general being satisfied the government could not obtain supply. That was not the case. Kerr’s latest advice from ministers on 5 November was that funds were still available. There is evidence to suggest opposition senators would withdraw their support for blocking supply before funds ran out.

Secondly, he had no basis for rejecting Whitlam’s entirely proper advice for a half Senate election. The possibility State governors would defy convention and refuse to issue writs was not a relevant consideration. Any assurances Kerr may have made not to involve the British Crown were improper and irrelevant.

Thirdly, Kerr ignored legal advice from Sir Anthony Mason that he should warn Whitlam before dismissing him and give him the option of recommending a dissolution of parliament. According to Mason, Kerr had received quite proper advice from an official at the prime minister’s department that Whitlam could seek his recall from the Queen first, but this warning had “shattered” him. That possibility had been confirmed by Charteris. It was not relevant to Kerr’s decision.

Finally, and most importantly, Kerr ignored the advice from the senior law officers, provided to him by the government. They advised in considerable detail that the power of the Crown to dismiss a prime minister who could command a majority in the lower house, where governments were made and unmade, was contrary to the sovereignty of parliament and no longer existed. Arguably, Kerr was bound to follow this advice.

The prime minister could have refused to accept Kerr’s determination and returned to Parliament to confirm he retained the confidence of the House of Representatives. He could then have sought a judgement from the High Court.

Yet Whitlam took no such action. Nor did he take the simple step of ensuring Fraser could not obtain supply. Kerr had taken a substantial risk but he had won the day.

Yet we still need to determine why he did it.

Read more of this series from  Jon Stanford and from  the Dismissal at 50 series.

The views expressed in this article may or may not reflect those of Pearls and Irritations.