Fundamental to the dialogue between the Palace and the Governor-General were the reserve powers of the Crown. This is a legacy from medieval times that permitted a king or queen to take discretionary action as guardian of the constitution. The reserve powers sit in a twilight land where politicians may disagree over whether or not they exist—but such debate is futile since the powers are used and therefore they must exist. In the letter Charteris sent to Kerr on 4 November 1975 he stated he believed the reserve powers did exist—a declaration that drove many excited observers to argue the Palace was encouraging dismissal.
Confusion abounds about these powers that have evolved from the traditional operation of monarchy. They are unwritten rules based on the discretion of the head of state and can be exercised without or contrary to ministerial advice. Some are routine, such as the appointment of a Prime Minister. The most contentious of the reserve powers are the Crown’s discretion to deny royal assent to bills, to deny a dissolution, and to force a dissolution and election even by dismissal of a government.
There is one certainty: Kerr was better versed in the reserve powers than Charteris. Kerr said: ‘The whole question of the reserve powers became a reality for me from my early student days.’1 Both Kerr and Whitlam were influenced by the Depression-era 1932 New South Wales crisis when Governor Sir Philip Game dismissed the Labor premier, Jack Lang. Kerr had been supported initially at university by his patron, High Court judge HV ‘Doc’ Evatt, later Labor leader and author of the 1936 classic The King and His Dominion Governors, a study of the application of the reserve powers in Commonwealth nations.
Born in 1914 in Sydney and attracted to the law, young John Kerr fell into the perfect demographic for an education in the reserve powers. Charteris and the Palace believed the reserve powers existed as a self-interested theory but Kerr knew they existed as a lived experience.
Kerr said Evatt’s book was ‘of great autobiographical significance’. He discussed the issues with Evatt in detail when the book was being written. Evatt had wanted Kerr to collaborate with him but Kerr, while flattered, was too pressed. Writing as a constitutional lawyer and social democrat, Evatt argued the reserve powers needed to be codified to bring certainty to their valid application. Kerr said his personal ties with Evatt meant the issue of the reserve powers was ‘real and alive to me from my student days onwards’.2
As Kerr matured he broke from Evatt politically but still said ‘his acceptance of the existence of the reserve powers remained important for me’. For most people such powers are an arcane irrelevance, but for Kerr the reserve powers were a reality throughout his life. Indeed, the evidence suggests a form of obsession with them.3
In his brief 4 November letter, just a week before the dismissal, Charteris said: ‘When the reserve powers, or the prerogative, of the Crown, to dissolve Parliament (or to refuse to give a dissolution) have not been used for many years, it is often argued that such powers no longer exist. I do not believe this to be true. I think those powers do exist …’4
This had echoes ofwhat Kerr read decades earlier in The King and His Dominion Governors. In his book, Evatt repudiated the so-called Whig view of history—that the sovereign had no independent discretion. In a famous passage, Evatt wrote: ‘What may fairly be called the extreme Whig view of the Monarchy, whatever validity it is thought to have in point of theory, is not true in point of fact.’ Evatt knew the reserve powers existed because he had studied their application across countries including Australia. He recognised that in a crisis these powers could be a necessity. Evatt attacked the Whig theory ‘as an attempt to reduce the power of the Monarch to a nullity in those very times of great crisis when his intervention alone might save the country from disaster’.5
In her 2018 book, The Veiled Sceptre, on the reserve powers in Westminster systems, Anne Twomey addressed the same argument as Evatt, saying that reserve powers ‘such as the dismissal of ministers or the refusal of royal assent are intended to be used extremely rarely’. She said: ‘The fact that a power has not been exercised for a long time is merely evidence of its intended rare use—not that it has fallen into desuetude.’6
As Evatt’s book and scholarship on the reserve powers show, their application occurs outside Britain; one reason being federal systems, notably Australia and Canada among others, vest upper houses with constitutional teeth in dealing with money bills, creating potential for a parliamentary conflict. Such deadlocks can trigger intervention by the Governor-General, whereas Britain, by contrast, resolved this question in its 1909–11 constitutional crisis that established the supremacy of the Commons over the Lords.
Writing as a lawyer and social democrat, Evatt was alarmed about the ‘sheer uncertainty and confusion’ surrounding the explosive nature of the reserve powers. He became fixated in his argument for their codification to create a body of law to govern their use. This was fine in theory but almost impossible in practice. It has not been achieved.
There is evidence that the reserve powers were a factor in Kerr’s acceptance of the post of Governor-General. His close friend Anthony Mason, a future Chief Justice, revealed when they were discussing Whitlam’s offer that Kerr felt as Governor-General there would be ‘opportunities to contribute to policy issues’—a notion that would have surprised Whitlam. In an astonishing comment, Mason said Kerr also ‘referred to the reserve powers and the possibility that an occasion could arise for their exercise’. Mason said he didn’t interpret Kerr’s remark as a prediction of their use but more as ‘an argument that I was underestimating the importance of the office of Governor-General’.7
One of Kerr’s best and oldest friends, Ken Gee, judge and lawyer, said: ‘John wanted to be at the centre of power.’8 While much emphasis is correctly placed on Kerr’s fascination with ceremony, honours and trappings of office, what is far more important is his long-standing conviction in the discretions of the sovereign, the reality of the reserve powers and the capacity of the Governor-General to leave his mark on events.
Before Kerr accepted the position, he re-read Evatt and read Hasluck’s William Queale Lecture, one of the most significant statements on the office. He had absorbed the two introductions to Evatt’s book by Sir Kenneth Bailey and Sir Zelman Cowen, notably Bailey’s statement about the reserve powers that ‘in times of crisis, however, it immediately becomes of vital importance to know what they are and how they will be exercised’.9
There is no doubt, the key to Kerr’s actions in 1975 began with his intellectual formation in the reserve powers. Whitlam, without realising what he had done, had appointed as Governor-General one of the nation’s most passionate zealots for the reserve powers built up over forty years. When Kerr assumed office, he knew the reserve powers existed. He knew Evatt’s quest for codification had gone nowhere. He believed that meant the discretion and judgement in relation to the reserve powers resided completely with the Governor-General.
This intellectual certainty meant Kerr would not be swayed by anyone telling him or advising him the reserve powers no longer existed. Whitlam’s adherence to the ‘Whig’ view—that the reserve powers had fallen into disuse—meant there was a fracture in the assumptions of the Prime Minister and Governor-General going into the crisis. It also meant that when Charteris told Kerr the Palace believed the reserve powers existed, that merely confirmed for Kerr what he had known all his life. It was hardly a revelatory statement.
Indeed, as the Charteris–Kerr letters reveal, in the seven weeks before 11 November, Kerr repeatedly referred to the reserve powers, notably the power to deny royal assent to bills and the dismissal power. Any notion the Palace suddenly raised the reserve powers in a 4 November letter is utter fiction. Speculation and references to the use of various reserve powers run through Kerr’s entire predismissal correspondence. It is Kerr, not the Palace, who keeps the reserve powers in the frame. This arises sometimes in accounts of his discussions with Whitlam—where Game’s dismissal of Lang forty-three years earlier is a reference point—and sometimes from his own ruminations.
But one comment made by the Palace has been misinterpreted as alleged evidence of encouraging the dismissal. This is a short Charteris handwritten addendum to one of his letters—that of 24 September, long before the crisis was triggered. Charteris referred to the Canadian constitutional expert Eugene Forsey, saying he laid down a principle that ‘if supply is refused this always makes it constitutionally proper to grant a dissolution’.10 This has been interpreted as urging the Governor-General to dismiss Whitlam.11 But this isn’t what Charteris said. His meaning is surely obvious: the classic position if supply is blocked is that a Prime Minister should advise an election or resign. Charteris was reminding Kerr that Whitlam didn’t have to resign because it was quite proper to ‘grant’ him a dissolution so he went to the election as Prime Minister.12
The real focus of the reserve powers debate is the Charteris letter of 4 November, the document mainly seized upon by advocates claiming the Queen had a role in the dismissal.13 This is where Charteris said he believed the reserve powers still existed. It is an unremarkable comment. Given Kerr had been sending letters for weeks talking about his possible use of the reserve powers, the option of dismissal, how dismissal was pivotal to Fraser’s tactics and a worry for Whitlam, it is hardly a revelation to hear the Palace thought these powers actually existed. Indeed, it would be significant if Charteris suddenly announced he thought they didn’t exist.
Twomey, who has written a 900-page book about the exercise of the reserve powers, said: ‘There is nothing shocking or surprising about the statement by Charteris that the reserve powers exist. This has always been the position taken by the Palace. It is not possible to say that such powers do not exist, when they are still being exercised in numerous countries.’14 Kerr’s entire correspondence was based on his assumption that the Palace believed in the reserve powers. He took it for granted. It never occurred to him to even ask. Why would he?
By saying the reserve powers existed, Charteris was not encouraging Kerr to use them. Affirming a power is different from recommending its use. Kerr had been telling Charteris for weeks he might have to use them—the sense of direction is one way: Kerr to Charteris. That advocates of the Queen’s alleged complicity are reduced to using as their prime pre–11 November evidence this single line from a single letter reveals a case that is intellectually bankrupt.
In truth, the 4 November letter actually reveals the opposite, because Charteris, for the first time, gave Kerr some firm advice. First, Charteris went to the essence of the reserve powers, saying ‘even if they are not used’ this ‘affects the situation and the way people think and act’. He alluded to their classical role where the sovereign, with the powers in their pocket, adopted them as leverage to secure a political resolution. ‘This is the value of them,’ Charteris wrote. It is untenable to argue that this is actually encouraging dismissal.15
The reserve powers are utilised by a wise sovereign to secure political settlement short of their application. Their real influence lies in their existence, not their use. ‘Most cases in which the reserve powers could potentially come into play are resolved politically, without the need for their exercise, because the risk that they might be exercised is enough to cause people to pull back from the brink,’ Twomey said. ‘It causes political participants to moderate their behaviour and not breach constitutional conventions.’ In her book, Twomey wrote the reserve powers are ‘successfully employed’ when ‘they cause alterations in political behaviour without the public repudiation of ministerial advice’. Twomey said: ‘One consequence is that the reserve powers are rarely seen to be exercised. This causes some people to suggest they no longer exist. But this is an ignorant assertion. The reason why reserve powers are rarely formally exercised is due to their very effectiveness.’16
The obvious point here is that if Kerr had warned Whitlam he needed advice on a general election, then Whitlam could either have given that advice or chosen another political tactic—the one certainty is that he would not have chosen dismissal.
Second, Charteris reminded Kerr that ‘to use them is a heavy responsibility’. This is the Palace wanting to ensure the Governor-General grasps the responsibility involved in the use of the reserve powers. But Charteris went further. The Queen’s private secretary said ‘it is only at the very end when there is demonstrably no other course that they should be used’. This is not Charteris being chummy or reticent anymore. This is the Palace giving Kerr a clear warning. The language is unmistakable and unambiguous: only use the reserve powers when there is ‘demonstrably no other course’. The significance of this remark is that if a proper warning is given to a Prime Minister there will almost always be another course short of dismissal. That’s the vital point.
Charteris expressed confidence in Kerr’s ability but then agreed with Kerr that the crisis had ‘not yet crossed the threshold from the political into the constitutional arena’. This is another warning to Kerr against precipitate action. Charteris wrote that Fraser said it was ‘already a “constitutional” crisis because he wants you to bring about an election’ but warned Kerr that if the tide of public opinion kept running against him Fraser may ‘look for a way of retreat’. Again, the message from the Palace was: don’t be too hasty to intervene.
Third, Charteris assumed that Kerr was onside and congratulated him for conducting the vice-regal role ‘with skill and wisdom’ along with impartiality. His mention of ‘impartiality’ is significant. Rarely mentioned by the Palace in correspondence, it was now highlighted in an important reminder as the showdown loomed. Finally, in case Kerr had missed the point, Charteris was emphatic. In his last sentence of this single-page letter he wrote: ‘The fact that you have the power is recognised, but it is also clear that you will only use them in the last resort and then only for constitutional and not for political reasons.’
This is not encouraging Kerr to dismiss Whitlam. It is the opposite, with multiple warnings which meant that Kerr, if he had followed them, would not have needed to dismiss the Prime Minister.
It would have been better if Kerr had received this counsel earlier. To be fair, Charteris was distant from the scene and the crisis was for Kerr to manage. Charteris, obviously, had no idea of the destructive manner in which Kerr would use these powers. He assumed, no doubt, Kerr would be astute in any resort to the Governor-General’s discretion.
It is tempting to think the Palace, based on the 4 November letter, had become apprehensive or edgy about what Kerr might do. Events would show it had good reason. Kerr acted in the Queen’s name but the Crown, inevitably, was bound up with the consequences.
These warnings are the last substantive point Charteris made to Kerr before 11 November. Given the delay in delivery of letters, there is no certainty that Kerr received this letter before Whitlam was removed from office. In any event, the warning from the Palace was clear.
Interviewed by the authors, William Heseltine, assistant private secretary to the Queen at the time and close to Charteris, said the Palace had reservations about Kerr’s solution. Asked about the Queen’s attitude, he said:
It would be true to say that none of us at the time thought that this was an ideal solution to the crisis. It would be fair to say, however, that both Sir Martin Charteris and myself felt that it was a pity that this very drastic solution was applied exactly when it was and that a little more political leeway would have enabled a political solution to emerge in Canberra and that would have been a very much more desirable outcome.17
So, if Kerr had told the Palace what he intended to do, what would the response have been? Heseltine speculated that Kerr would have been advised to ‘hold off’ dismissing Whitlam. ‘I suspect the advice that would have been given to him was that it would have been prudent to hold off a little bit longer,’ Heseltine said in July 2020. ‘I think it was very proper of him not to ask, and in ways which are now very evident, very sensible and satisfactory that he didn’t … at no stage did the Governor-General ever ask the Queen to suggest that he should act in any particular way, and nor did she offer that advice through her private secretary.’18
These statements concur precisely with the warnings from Charteris to Kerr in his 4 November letter. Kerr was obsessed with the reserve powers but his mind was directed to their application, not their influence as a warning mechanism. Charteris told him only use the powers when there was ‘no other course’. Kerr didn’t do this. The other course was to warn Whitlam and let him decide, as Prime Minister, what form of political settlement he would accept.
In his assessment of the crisis, Sir Paul Hasluck nailed the point: ‘The consultation, advice and warning precede any use of the reserve powers … [they] are powers to be held in reserve and not used in the frontline except in extreme and unpredictable situations.’19
In 1977, Charteris and Hasluck met at Buckingham Palace and reviewed the crisis. Hasluck said the heart of the problem lay in the lack of trust between Whitlam and Kerr, and said if this had existed, ‘there never would have been a crisis’. Hasluck expounded on the political skills a Governor-General needed to avert a confrontation, the skills that Kerr had not demonstrated. Referring to the need to avoid confrontation, Hasluck noted that Charteris ‘was in general agreement with my doctrine and we recalled the words about “counsel, advice and warning”’.20 This statement leads to an unequivocal conclusion: if Hasluck had remained Governor-General there would have been no dismissal.
In using the reserve powers without prior and proper warning, Kerr violated the principles that governed the Crown’s approach to its ministerial advisers expressed in Walter Bagehot’s famous summary: ‘The sovereign has, under constitutional monarchy such as ours, three rights—the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others.’21
Kerr failed Bagehot’s test. His action conflicted with the final warnings from Charteris. The Governor-General kept his option of using the reserve powers before the Palace throughout the crisis. But the Palace was not urging Kerr towards a dismissal. It was not party to any specific plan devised by Kerr. It was never informed about how Kerr would leverage or use the dismissal power. Kerr proved, in the end, the Palace was at the mercy of a wilful Governor-General.