John Kerr (governor-general)

Sir John Robert Kerr, AK, GCMG, GCVO, QC (24 September 1914 – 24 March 1991) was the 18th Governor-General of Australia. He dismissed the Labor government of Gough Whitlam on 11 November 1975, marking the climax of the most significant constitutional crisis in Australian history. He had previously been the 13th Chief Justice of the Supreme Court of New South Wales.

Career

Kerr was born in Balmain, a working-class suburb of Sydney, where his father was a boilermaker. He entered the Fort Street Boys' High School, and later won scholarships to the University of Sydney, where he graduated in law with first class honours and the University Medal, before being called to the New South Wales bar in 1938. At Fort Street he met H. V. Evatt, who later became Leader of the Australian Labor Party and then a judge of the High Court of Australia, and became a protege of Evatt for many years. In 1938 Kerr married Alison "Peggy" Worstead,^[1] with whom he had three children. He spent World War II working for an Australian intelligence organisation, the Directorate of Research and Civil Affairs, a fact that later gave rise to speculation about an intelligence role in the dismissal of the Whitlam Government. In 1946 he became principal of the Australian School of Pacific Administration and the first Secretary-General of the South Pacific Commission.

Kerr returned to the bar in 1948, becoming a prominent lawyer representing trade union clients and a member of the Australian Labor Party.^[2]:p.142 He intended to seek Labor endorsement for a parliamentary seat at the 1951 election, but withdrew in favour of another candidate.^[2]:p.135 After the Labor split of 1955, however, he became disillusioned with party politics. He disliked what he saw as the leftward trend of the Australian Labor Party under Evatt's leadership, but was not attracted to the breakaway group, the Democratic Labor Party.^[2]:p.146 During the decade of the 1950s, he joined the anti-communist advocacy group established by the United States' CIA, the Association for Cultural Freedom, joining its Executive Board in 1957.^[3]:p.248

In the 1960s Kerr became one of Sydney's leading industrial lawyers. In the 1950s he had become a QC.^[2]:p.144 In 1964 he was one of a group of lawyers (which also included future NSW Premier Neville Wran) who lent their expertise to the defence of the publishers of the satirical magazine Oz when they were prosecuted for obscenity.

In 1966 Kerr was appointed a judge of the Commonwealth Industrial Court and, later, to several other judicial positions.^[2]:p.192 During this period his political views became more conservative. He became a friend of Sir Garfield Barwick, the Liberal Attorney-General who became Chief Justice of the High Court of Australia in 1964. Kerr was the first chairman of the Law Association for Asia and the Western Pacific (LawAsia), founded by Justice Paul Toose and John Bruce Piggot in 1966. Kerr served as chairman of that organisation until 1970.^[2]:p.172

Kerr was appointed Chief Justice of New South Wales in 1972. Sir Paul Hasluck was due to retire as Governor-General in July 1974, and the Prime Minister, Gough Whitlam, needed to find a suitable replacement. His first choice, Ken Myer, declined; he then offered the post to Mr Justice Kerr (as he then was), who accepted on condition that he could expect to have ten years in the office, and that he could represent Australia overseas as Head of State.^[4] These discussions commenced in September 1973.^[5] Kerr was announced as Governor-General-designate on 27 February 1974,^[6][7] by which time he had become Sir John Kerr. He been knighted in the New Year's Honours of 1974, on the advice of the Premier of New South Wales, Sir Robert Askin, after Whitlam had declined to endorse his predecessor William McMahon's recommendation for that honour, which Hasluck had wisely held back pending the outcome of the December 1972 election.^[5] Kerr did not know Whitlam well, although they had shared legal chambers some years earlier, but he had remained friends with several ministers in Whitlam's government, such as Jim McClelland and Joe Riordan. Kerr's wife Peggy was a fellow student of Margaret Whitlam during university days.^[2]:p.13 Whitlam seems to have believed that, because of Kerr's former membership in the Labor Party, he was still politically "reliable", without realising that Kerr's political views had changed and that he had come to see the role of Governor-General differently from Whitlam.

Governor-General

The Whitlam Government had won a second term in May 1974 following a double dissolution and picked up an additional 3 Senate seats, leaving it on equal numbers with the Liberal-Country party coalition and with the balance of power held by two independents.^[8] The new parliament was opened by Sir Paul Hasluck on 9 July, and Kerr was sworn in as Governor-General on 11 July. The disputed bills that had led to the double dissolution were reintroduced, and, as expected, were again rejected. The conditions for a joint sitting of the parliament had now been met. On 30 July, Kerr signed a proclamation convening the historic Joint Sitting of the Australian Parliament on 6 and 7 August. All the contested bills were passed.

On 9 September his wife Peggy died after a long illness, aged 59.^[9] In April 1975, he married Anne Robson, who had recently divorced her first husband, Hugh Robson QC, a New South Wales judge and former colleague of Kerr's. Through her, Kerr acquired two stepchildren.

During 1975 the government was enveloped by a series of ministerial scandals (the "Loans Affair"), which resulted in the sacking of two senior ministers, Rex Connor and Deputy Prime Minister, Jim Cairns. The Liberal Opposition Leader, Malcolm Fraser, decided to use the Senate to block the government's budget bills, thus forcing an early election for the House of Representatives (this is called "blocking supply").

On paper, the Australian Constitution gave the Governor-General wide-ranging powers, including the power to appoint and dismiss ministers and to dissolve Parliament. However, by 1975, the office was viewed as having become almost entirely ceremonial, and it was understood that in most cases the Governor-General was bound to act on the advice of the Prime Minister and Cabinet. Whitlam and others held the view that the Governor-General had no discretion in the exercise of these powers; that they must always be exercised on the advice of the Prime Minister and never otherwise. Kerr and others disagreed fundamentally with this view, arguing the Constitution very clearly set out the Governor-General's powers.

In addition to the powers normally exercised only on the advice of the Prime Minister, there are certain uncodified reserve powers, exercisable on the Governor-General's own initiative. Kerr chose to make a study of the reserve powers through his earlier professional relationship with Evatt, the author of the standard work on the reserve powers as they applied to the British Dominions, The King and His Dominion Governors (1936).^{[2]:p.83–88} Kerr was familiar with this book, and re-read it before accepting Whitlam's offer of the governor-generalship.

1975 crisis

In October 1975 the Liberal-Country party coalition in the Senate voted to defer consideration of the supply bills until the Whitlam government agreed to 'submit itself to the Australian people', and a political stalemate resulted.^[10] With the full support of caucus Whitlam announced that if the Opposition continued to block Supply in the Senate, he would call an early half-Senate election in December. For the next 4 weeks Fraser refused to give in and allow the budget bills to pass. If this impasse had gone on indefinitely, the government would have run out of money and been unable to fund its ongoing commitments, public-service, parliamentary and judicial costs. It was estimated that it would be late-November before this occurred. Whitlam was confident that at least some of the Liberal senators would back down if he held out long enough. Undoubtedly, he also surmised that public opinion could swing back his way as a result of Fraser's tactics and that, at an opportune moment, he could call a half-Senate election (at which government would not be at stake) as a means of breaking the deadlock. On 6 November Whitlam informed Kerr that, if the Opposition continued to deny a vote on Supply in the Senate, he would call an early half-Senate election the following Tuesday - 11 November 1975. The necessary paperwork was then drawn up and drafts exchanged between the Prime Minister's office and Government House over the next 4 days. On the morning of 11 November Whitlam rang Kerr and confirmed the wording of the announcement he would make in the House of Representatives that afternoon, setting the half-Senate election in train.^[11]

Fraser was also aware of these considerations. He knew that several Liberal senators were uneasy about the blocking of supply, and might not be relied on for much longer—as was indeed confirmed by Liberal Senator Reg Withers after the dismissal.^[12]:p.288 He also saw evidence in the opinion polls that the public was unhappy about the action of the Senate in delaying supply with the coalition polling dropping 10% in the 4 weeks during which Supply was blocked. For this reason, he was keen to see the crisis brought to an early conclusion. Intervention by the Governor-General was the only clear remedy in the event that supply could not be legislated and the prime minister declined to advise an election.

Opposition backbenchers began calling on Kerr to dismiss Whitlam during October. On 16 October, the Liberal frontbencher, Robert Ellicott (a former Commonwealth Solicitor-General) published with Fraser's approval a legal opinion which he had prepared for the Shadow Cabinet, arguing that the Governor-General had both the right and the duty to dismiss the government if it could not obtain supply.^[12]:p.277 Kerr told Whitlam and other government ministers that he considered Ellicott's view to be 'bullshit'. On 17 October, Whitlam told an interviewer that the Governor-General could not intervene in the crisis in view of the convention that he must always act on the advice of his Prime Minister. Whitlam said later that he intended these remarks to protect Kerr, by making clear his view that the Governor-General had no power to intervene,^[12]:p.284 but Kerr apparently saw them as an attempt to intimidate him, and also as expressing a view of the reserve powers that he did not share.

Kerr saw himself as an active player in the unfolding political drama. He made it clear in several conversations with ministers that he did not accept the view that the Governor-General could play no role in the crisis until supply actually ran out: he saw it as his duty to help prevent things from getting to that stage. On 30 October, he proposed a compromise solution to Whitlam and Fraser which would have, in effect, meant a backdown by Fraser (Kerr proposed that the Opposition allow the supply bills to be passed in return for Whitlam's abandoning plans to call an early Senate election), but Fraser did not agree to this. On 2 November, Fraser offered to pass the bills if Whitlam would agree to call an election before the middle of 1976, but Whitlam in turn rejected that solution. Under the Westminster convention upheld in Australia, it is the prime minister's prerogative to recommend the timing of an election. It became clear that Kerr had considerable discussions with Fraser, contrary to Whitlam's specific advice. When Whitlam rejected Fraser's proposal, it seems, Kerr decided that Whitlam was being intransigent.

Kerr's personal relationship with Whitlam by this stage was not strong, he had been upset by suggestions that the Executive Council had acted improperly during the Loans Affair and, moreover, he was suspicious that if Whitlam knew he was contemplating dismissing the Government, he (Whitlam) would react by pre-emptively advising the Queen to dismiss Kerr instead. Whitlam for his part assumed with characteristic confidence that Kerr would act predictably in the conventional manner of previous vice-regal appointees, was in full sympathy with the Government's position, and would do nothing to act against him.^[12]:p.284 He therefore made no effort to obtain Kerr's agreement with his position and did not adequately consult with him during the crisis.

The dismissal

Kerr had another meeting with Fraser (with Whitlam's approval) on 6 November. At this meeting Fraser increased the pressure on Kerr, advising him that the Opposition would not back down and would not accept any compromise, warning him that, if he did not take action against Whitlam, then the Opposition would begin to make direct public criticism of him for having "failed in his duty".^{[13]:p.237–238} Fraser urged Kerr to bring about an election before the end of 1975. The provisions of the Electoral Act meant that the last date on which a 1975 election could be announced was 11 November.

On 9 November, Kerr consulted the Chief Justice of the High Court of Australia, Sir Garfield Barwick.^{[2]:p.341–342} Kerr asked Barwick to advise him on whether he had the constitutional power to dismiss Whitlam, and Barwick advised him, in writing, that he did.^{[2]:p.342–344} He also advised him that at least one other High Court justice, Sir Anthony Mason, concurred in this view.

Kerr appears to have made up his mind on 9 November to dismiss Whitlam. He felt it necessary not to disclose this intention to Whitlam and his ministers because of his fear that Whitlam would advise the Queen to exercise her constitutional power to terminate Kerr's commission as Governor-General.^[2]:p.331 In so doing, Kerr was aware of the precedent set by Sir Philip Game, the Governor of New South Wales, who had dismissed Jack Lang's government in 1932. Game had warned Lang in advance that if he, Lang, did not withdraw certain regulations, then he, Game, would dismiss him. This allowed Lang to seek Game's dismissal if he dared, which he did not.^[14]

On the morning of Tuesday, 11 November, Whitlam phoned Kerr and arranged to see him at 12:45 pm after the Remembrance Day ceremonies. Kerr also arranged for Fraser to come "a quarter of an hour later. Mr Fraser was not told why I wanted him to come."^[2]:p.356 Fraser later claimed that Kerr telephoned him^[12]:p.292 and asked him whether, if he were commissioned as Prime Minister, he would:

• pass the budget bills,
• call an immediate double dissolution election for both houses of Parliament, and
• make no appointments, initiate no new policies, and conduct no inquiries into the previous government, before such an election.

Fraser recalled answering "yes" to all these questions. In his memoirs Kerr denied making such a phone call to Fraser, but Fraser was adamant in all subsequent accounts that he did.

The House of Representatives was suspended at 12:55 pm for the luncheon break. Whitlam arrived at Government House at 1 pm, 15 minutes late. Fraser had arrived earlier and been shown into another room.^[12]:p.356 Whitlam and Kerr met alone in Kerr's study. Kerr knew that Whitlam intended to ask for a half-Senate election, one which would need to be conducted without supply,^[2]:p.357 that is, unlawfully. So, after reconfirming that Whitlam's intention was to govern without parliamentary supply, Kerr withdrew his commission and served on him the letter of dismissal.^[15] Kerr claimed Whitlam then sought to telephone Buckingham Palace to advise Kerr's dismissal, but Whitlam has always denied this. At a press conference that afternoon he said "The Governor-General prevented me getting in touch with the Queen by just withdrawing the commission immediately"^{[2]:p.359[16]} In an article in Quadrant magazine (March 2005, Volume 49, Number 3), David Smith, Kerr's Official Secretary, claimed that Whitlam knew of Kerr's intentions, the Queen had already made her position of non-intervention known to Whitlam and Kerr,^[12]:p.329 and Kerr had called a double dissolution to be fair to both candidates, sincerely believing that Whitlam could win back government with the necessary majority in both houses.

When Whitlam had left, Kerr summoned Fraser^[2]:p.364 and asked him the same questions which Fraser claims to have answered that morning. When Fraser answered affirmatively, Kerr then commissioned him as Prime Minister.

Kerr later put forward five propositions to justify his actions:

• The Senate had the right under Section 53 of the Constitution to block supply.
• The Government had an obligation to obtain supply through Parliament.
• If the Government could not obtain supply, it had either to resign or call an election.
• If the Government refused to do either of these things, the Governor-General had a right and a duty to act to intervene.
• Since the Prime Minister could at any time advise the Queen to terminate the Governor-General's commission, the Governor-General had a right to dismiss the Government without advance warning of his intention to do so.

Kerr later stated that Whitlam represented "something that perhaps I might have been, had I stayed in the party as he did",^[17] and it has been suggested that the Dismissal was "as much a case of a thwarted ego seeking his place in history as Whitlam's mismanagement of the economy".^[18] After Kerr's death, his former embittered close friend, Whitlam cabinet member James McClelland, claimed that Kerr had long aspired to be "top dog in Australia"; that Kerr had once made a pass at him; and that the Dismissal could only be fully understood if Kerr's alleged repressed homosexuality was factored in – that an infatuation with Whitlam had become one for Fraser.^[19][20]

After the dismissal

The news that Whitlam had been dismissed spread across Australia during the afternoon, resulting in angry protest demonstrations by his supporters. Over the following month, leading to the double dissolution election scheduled for 13 December 1975, Whitlam and ALP supporters constantly and intensely denigrated Kerr, no doubt in the belief that the electorate would prove sympathetic to the deposed Labor government. In the ensuing election campaign, the Australian Labor Party's focus was predominantly on the asserted illegitimacy of the dismissal (with the slogan of "Shame Fraser, Shame"), while the Coalition focused on criticism of Labor's economic management. Some expected a major backlash against Fraser in favour of Whitlam (who had launched his campaign by calling upon his supporters to "maintain your rage"), based on opinion polls in October and early November which had shown disapproval of Fraser's tactics. Once the election was called, however, the majority focused on the economy and responded to the Liberals' slogan "Turn on the lights". Despite the passion of die-hard Labor supporters, furious at what they saw as an establishment plot to destroy a Labor government, Labor suffered its greatest-ever loss (7.4% down on its 1974 vote) at the hands of the Coalition, which continued to hold power until 1983.

Labor supporters continued to voice criticism and demonstrate against Kerr. He found the personal attacks on him and his wife (whom Whitlam and others accused of having been a sinister influence) deeply wounding. For the rest of his term as Governor-General, Kerr was rarely able to appear in public without encountering angry demonstrations.^[21] On one occasion his life was thought to be endangered when he was unable to leave a speaking engagement in Melbourne except by having his car drive through an angry crowd. Labor parliamentarians, federal and state, refused to accept his legitimacy as Governor-General, shunning official functions where he was in attendance. Near the end of his term, he famously appeared drunk when he presented the 1977 Melbourne Cup.^[22]

Resignation

Concern about his health may have been one reason why he cut short his five-year term and stood down in December 1977. In fact, his resignation had already been proposed as early as March 1977, during the Queen's visit. Fraser denounced Kerr's detractors as "a hostile and bitter minority" whose actions were unjustified.^[2]:p.423 Kerr was appointed to the post of Ambassador to UNESCO, an office which he felt unable to take up because of continuing bitter attacks on him both inside and outside the Parliament.^[2]:p.424 Bill Hayden, the new leader of the Labor Party, now in opposition, was one of the critics of the UNESCO appointment. In the Parliament he stated, "The appointment of John Kerr as Ambassador ... is not just an indecent exercise of the rankest cynicism. It is in every respect an affront to this country."^[2]:p.428

Later life and death

According to historian Phillip Knightley, "The remaining years of Sir John Kerr's life were miserable ones. He was subject to relentless harassment whenever he appeared in public."^[23]:p282 He therefore moved to London "where he could be seen most days, usually the worse for wear, at one or other gentleman's club."^[23]

Kerr died in Sydney in 1991, survived by his three children and his second wife. The family withheld announcement of the death until after Sir John's burial at Macquarie Park Cemetery and Crematorium, Macquarie Park, New South Wales. This ensured the then Labor government would not be put in the position of deciding whether to offer a state funeral, an honour that would normally be considered automatic for a former Governor-General. The second Lady Kerr died in 1997, survived by the two children of her first marriage.

His children are: Gabrielle Kibble, a town planner and later NSW State Director of Planning;^[24][25] Kristin Johnson, a psychiatrist;^[26] and Philip Kerr, a solicitor.^[27]

Honours

John Kerr was appointed a Companion of the Order of St Michael and St George (CMG) on 1 January 1966 for services as President of the Law Council of Australia.^[28] This was done on the recommendation of the Australian Government, then led by Sir Robert Menzies.^[5]

In 1972, the Prime Minister William McMahon had recommended Kerr for a promotion within the order to Knight Commander (KCMG), to be announced in the 1973 New Years Honours. In view of the impending federal election scheduled for 2 December 1972 and the knowledge that the Labor Party's longstanding policy was not to support Imperial Honours, Governor-General Sir Paul Hasluck chose not to forward such recommendations to the Queen, pending the result of the election. After Gough Whitlam's election, Hasluck asked him if he were willing to endorse McMahon's recommendation for Kerr's knighthood, but he declined. Kerr was appointed KCMG in the New Years Honours of 1974, for services as Chief Justice of NSW, on the recommendation of the UK Foreign Secretary on behalf of the Premier of New South Wales Sir Robert Askin.^[5][29]

In 1974 he was made a Knight of the Order of St John of Jerusalem.^[30]

On the establishment of the Order of Australia on 14 February 1975, as Governor-General he was made Principal Companion of the Order (AC).^[31] When the category of Knight was added to the Order on 24 May 1976, he was made Principal Knight of the Order (AK).^[32]

In 1976 he was elevated to Knight Grand Cross of the Order of St Michael and St George (GCMG).^[30] He had asked Gough Whitlam for this appointment shortly after becoming Governor-General in 1974, but was rebuffed.^[4]

On 30 March 1977 he was appointed Knight Grand Cross of the Royal Victorian Order (GCVO), an award within the personal gift of the Sovereign, for services as Governor-General.^[33] This award was made by the Queen during an official visit to Australia, and was conferred on board the Royal Yacht Britannia in Fremantle Harbour.^[5]

He was appointed a Privy Counsellor in 1977 on the instigation of Malcolm Fraser.^[30] (This was another appointment he had unsuccessfully sought from Whitlam in 1974.^[4]) The formal recommendation went through the UK Prime Minister, James Callaghan, who felt unable to support Fraser's other recommendation, that Kerr be elevated to the peerage.^[5]

References

Books, letters, articles

• Kerr, John Robert (1979). Matters for Judgement. Sun. 
• Whitlam, Edward Gough (1979). The Truth of the Matter. Penguin. 
• Kelly, Paul (1995). November 1975. Allen and Unwin. 
• Kelly, Paul (2000). Paradise Divided. Allen and Unwin. ISBN 1-86508-291-0. 
• Kelly, Paul (1976). The Unmaking of Gough. Angus & Robertson. 
• Freudenberg, Graham (1977). A Certain Grandeur: Gough Whitlam in Politics. Macmillan. 
• Horne, Donald (1976). Death of the Lucky Country. Penguin. 
• Hasluck, Paul (1972). The Office of Governor-General. 
• Markwell, Donald (2016). Constitutional Conventions and the Headship of State: Australian Experience. Connor Court. ISBN 9781925501155. 
• Dimbleby, Jonathan (1994). The Prince of Wales: A Biography. New York: William Morrow and Company. ISBN 0-688-12996-X. 
• Ayres, Philip (1987). Malcolm Fraser: A Biography. William Heinemann Australia. ISBN 0-85561-060-3. 
• Blackshield, Tony; George Williams (2010). Australian Constitutional Law and Theory: Commentary and Materials (5 ed.). Annandale, NSW: Federation Press. pp. 470–480. ISBN 978-1-86287-773-3. 

• House of Representatives Hansard, 11 November 1975