Long before Malcolm Fraser’s Opposition delayed passage of the Whitlam Government’s budget in the Senate, Sir John Kerr was alive to the chance, and the opportunity, to play a role in breaking any deadlock. Kerr’s letters to Sir Martin Charteris show a careful and calculated cultivation of Buckingham Palace to a possible viceregal intervention. Kerr wrote to the Palace about the developing crisis and the possible resolutions to it, including dismissal.
Kerr canvassed his talks with Whitlam and Fraser, offered his assessment of both men and their options, and considered the opinions of leading newspapers, commentators and academics. But Kerr did not tell the Palace everything. He did not reveal his discussions with Sir Garfield Barwick and Anthony Mason, both High Court judges, before the dismissal. Nor did he inform Charteris of the details of all of his interactions with government and Opposition members, and when he did, he was selective in what he revealed. Kerr’s intention was to keep the Palace informed and prepared for him to play a role.
In reply, Charteris was equally clever in noting the Palace was detached from events but still offered friendly and sometimes firm counsel. He provided degrees of support to Kerr that he was handling matters appropriately. But Charteris always made it clear Kerr was the decision-maker and the Palace and the Queen had no decisive role to play.
It was not unusual for a Governor-General to write to the Queen, via her private secretary, about what was happening in Australia, how they saw political personalities and events. This was welcomed in the Palace. The Governor-General is the Queen’s representative in Australia. They act with her authority, in her name and on her behalf. The Queen occupies a role within the Australian system of government, as she does in the United Kingdom. It is nonsense to argue that political matters should not be discussed or that she occupies a position somehow ‘above politics at all times’ given there are both ceremonial and formal responsibilities the monarch must undertake.1
Sir William Heseltine, the assistant private secretary in 1975, thought it was ‘very sensible’ for Kerr to write privately to Charteris about these issues. ‘Kerr himself was a lawyer so he was no stranger to these matters,’ Heseltine said in an interview. ‘In consulting the private office of the head of state, he knew he was talking to people and an institution which had been involved in political and constitutional matters for literally hundreds of years, I suppose. And I can’t see any reason to suppose that it was improper on either his part or the part of the Palace to indulge in that kind of exchange.’2
Before the political and constitutional crisis of October–November 1975, Kerr’s mind was focused on a possible political confrontation. He had, in fact, raised the prospect of denial of supply and a vice-regal intervention the previous year. On 8 November 1974, Kerr informed Charteris that ‘around the middle of next year’ there could be ‘another precipitated election which would have to be based on denial of supply by the Senate’. Kerr speculated that Whitlam might want to lay the groundwork for a double dissolution and ‘convert any such election … into an election for both Houses’.3 The next month, on 10 December, Kerr noted that the 1974–75 budget had been passed but economic difficulties and scandals such as Deputy Prime Minister Jim Cairns appointing Junie Morosi to his staff, and rumours of their affair, ‘could result in the denial of supply towards the end of the first half of 1975’.4
In the prelude to the crisis, during 1975, Kerr remained focused on the possible denial of supply and his role. In February, Kerr wrote to Charteris noting that he had discussed with Whitlam ‘the possibility of a political or constitutional crisis occurring before the Queen’s Birthday with the possibility of a change of government’. This was during an amicable and frank discussion about adopting a new honours system. Whitlam, in response, did not see a crisis or change of government as ‘by any means likely’ and said he would continue to govern without restraint.5
But Kerr informed Charteris the following month that Whitlam—just days after Fraser became Liberal leader—‘appeared to be convinced’ there would be an early election in mid-1975.6 Politics remained volatile and uncertain as the government lurched from one crisis to the next, unemployment and inflation were persistent problems and Fraser toppled Billy Snedden in March to become Opposition Leader. Reviewing his first eleven months as Governor-General in June 1975, Kerr told Charteris ‘the political situation in the country has remained if not unstable, at least very fluent’.7
The dismissal of the Whitlam Government was raised by The Canberra Times in an editorial on 4 July 1975. The capital city newspaper supported an inquiry of some kind into the loans affair, the contentious effort by the Whitlam Government to raise a US$4 billion overseas loan through a Pakistani commodities trader. Fraser had called for a judicial inquiry but Whitlam refused; there was a special sitting of parliament that month to debate the scandal. The newspaper raised dismissal in the context of the loans affair. ‘The ultimate guardian of the Constitution, of the rule of law, and of the customary usages of the Australian Government in a time of crisis is the Governor-General, who has certain clear powers to check an unelected government,’ argued the editorial. ‘He could, for good and sufficient reasons, revoke the commissions of a Prime Minister or other ministers.’
The editorial caught Kerr’s attention. He sent it to Charteris. Kerr said it was from a ‘responsible, high quality paper’ and noted: ‘I have no intention of course of acting in the way suggested.’8
The spark for the 1975 crisis was the budget presented by Treasurer Bill Hayden on 19 August 1975. Fraser, in response, said the Opposition would not use the budget to force an election. As a result, Kerr expected to visit Canada and the United Kingdom, and possibly Europe, in November 1975, a trip he was focused on.
But Kerr wrote tortuous letters about tortuous events. He noted that Whitlam said an election could possibly be held on 5 December ‘if supply was denied’ but he then noted Fraser was ‘leaving the impression’ that an election could be delayed until February 1976 ‘if supply were denied’.9 A month earlier, in July, Kerr had written to Charteris saying that should supply be delayed during the forthcoming budget debate then parliament would be dissolved. ‘The Prime Minister would ask for a double dissolution and an election would probably take place during the first week in December.’10 The situation was plagued with uncertainty.
On 12 September, Kerr told Charteris a political crisis over the budget was imminent. He judged that there was a ‘near unanimity’ of opinion within the Coalition that the Whitlam Government ‘should be brought down’. Kerr said Whitlam knew he faced a ‘devastating’ defeat in the House and Senate if an election was held now and, accordingly, he was not in the mood ‘to go quietly’. Whitlam’s strategy was to ‘tough it out’ and try to break the Senate and demolish Fraser. ‘If the Senate refuses to pass it, the theory is that the Prime Minister will not accept that as ground for coming to me for dissolution of the House of Representatives or indeed for a double dissolution,’ Kerr wrote.11
In an extraordinary paragraph, Kerr canvassed his possible intervention as Governor-General in a subsequent crisis. ‘If the Prime Minister and the Leader of the Opposition get into a battle in which the Senate has defeated the Budget, the Prime Minister refuses to recommend a dissolution, my role will need some careful thought though, of course, the classic constitutional convention will presumably govern the matter.’12 The ‘classic constitutional convention’ to which Kerr is referring would presumably be that a government denied supply must resign or advise an election. He said events would ‘determine what I do’. Kerr said he had his ‘mind open’ on the constitutional issues involved.13 This was a Governor-General contemplating an active role before the crisis eventuated—and he conveyed this to the Palace.
Whitlam was also focused on a potential crisis. Kerr had a long talk with the Prime Minister in Port Moresby while attending the independence celebrations and relayed this to Charteris in a 20 September letter. Whitlam expected the Opposition to delay supply to force another early election. But the Prime Minister had a strategy to deal with this: he would present the budget bills passed by the House of Representatives for royal assent along with advice that the Senate ‘has no legal power to reject them’.14 This was an astonishing position. Kerr was immediately concerned about its legality and a possible challenge in the High Court. Kerr then related another critical aspect of his conversation with Whitlam:
Another point of importance put to me by the Prime Minister in Port Moresby was that if I were, at the height of the crisis, contrary to his advice to decide to terminate his commission at the time when the public service, defence forces, police and so on were not being paid he would have to tell me that Mr Fraser would not be able to get supply either because new legislation would probably be necessary and it would not pass the House of Representatives.15
Kerr and Whitlam were canvassing the dismissal option. It had been raised by Whitlam. The Prime Minister’s argument was that dismissal was not viable because Fraser, as an incoming Prime Minister, could not secure supply. Whitlam’s reply about Fraser probably requiring new legislation that would not pass the House of Representatives was defective. When Fraser became Prime Minister on 11 November he only needed to pass supply in the Senate.
Kerr then made a prescient statement: ‘One point is that if neither can get supply and public servants etc. are not being paid it is said that only an election can resolve the point and if Mr Whitlam will not advise one I may have to find someone who will. My mind is at the moment open on this.’16
This shows the dismissal option was in Kerr’s mind nearly a month before the budget was blocked. He assured Charteris, though, that he had formed ‘no view’ about what he may do in ‘various contingencies’. Kerr would keep his mind open but was ‘thinking hard’.17
Charteris replied on 24 September remarking that Kerr ‘may be faced with some difficult constitutional decisions’ in the next month or more.18 He knew Kerr faced difficult days ahead.
Kerr met with Whitlam on 29 September to discuss the looming crisis. Whitlam had now gone cold on the idea of presenting the appropriation bills for royal assent without passing the Senate. In a letter to Charteris on 30 September, Kerr disclosed that Attorney-General Kep Enderby had told him ‘privately’ that he believed the Senate had the power to reject appropriation bills and they needed Senate approval before being presented for royal assent.19 Kerr and Whitlam discussed options for both a double dissolution and a half-Senate election.
In a 2 October letter, Charteris made clear the Palace’s attitude to a future crisis. First, he said that he hoped the crisis ‘will not come to the boil at all’. He was alluding to the principle that it would be better for all those involved, not least the monarchy, to avoid confrontation and intervention. Charteris hoped that ‘the crisis will probably be avoided’ and that ‘reason’ would dictate that ‘something’ will ‘give’. Second, he emphasised that Kerr was ‘right’ to keep his ‘options open and not to decide now’ what he may do in the future.20
But the hopes of the Palace were dashed. Supply was first blocked in the Senate on 16 October 1975.
‘As you by now know the crisis has finally broken,’ Kerr wrote to Charteris on 17 October. That day, Kerr met Whitlam at lunchtime at Government House for the swearing-in of Senate leader Ken Wriedt as the new Minister for Minerals and Energy. Whitlam told Kerr that ‘the Senate must reject supply outright’ before he would call an election ‘of any kind’. His strategy was to ‘tough it out’. Wriedt, however, said he ‘did not agree’ with Whitlam’s policy. He feared ‘chaos’ and ‘violence in the streets’. Wriedt said, remarkably, it would be better for Whitlam to ‘accept the inevitable’ election defeat and start rebuilding for a ‘return to power in due course’.21
Kerr was not convinced about the viability of Whitlam’s strategy. But the Governor-General did not raise these concerns with Whitlam in a direct manner. He had already decided to keep his inner thoughts from the Prime Minister. Yet Kerr confided in the Palace and expressed his misgivings to Charteris. Kerr wrote about Whitlam: ‘The Prime Minister and I remain friendly and our relations are very good. He wants me to be certain to do exactly what he advises come what may. This is, of course, understandable.’ Kerr insisted that he did ‘not know what will happen’ or what he ‘shall end up doing’ but was convinced that Whitlam and Fraser were set ‘on a collision course’.22
Within days, Kerr was under sustained pressure from Whitlam and Fraser. The Opposition Leader asserted publicly that the Governor-General had ‘a duty to act very soon to force an election’ and could ‘dismiss the Prime Minister’, Kerr wrote to Charteris on 20 October. Fraser said Kerr would then be compelled to ‘call upon someone else (Mr Fraser of course) willing to advise a dissolution of the House of Representatives, or both Houses’.23 This was public intimidation of the Governor-General.
Kerr had read reports of a statement by Liberal frontbencher Bob Ellicott on 16 October which outlined the Governor-General’s powers and duties. Ellicott was ‘an old friend’ of Kerr’s, and a former Solicitor-General, he told Charteris. At an official dinner that night, Fraser urged Kerr to read the Ellicott opinion and organised for him to receive a copy the following day.24
Kerr reported to Charteris that Whitlam’s position had ‘hardened and changed’ in recent days. ‘He has now decided that he will advise no election of any kind whatsoever,’ Kerr wrote about Whitlam. ‘On Saturday he told me that he is determined to break the alleged power of the Senate to force an election, at its whim, of the House of Representatives by denying supply.’25
Whitlam also informed Kerr of his plan to have private trading banks finance salaries and other payments to public servants and contractors with a Commonwealth guarantee. He told Kerr this would ‘defuse the issue’ as nobody would be without payment and Fraser would be ‘out-maneuvered’. Although supply would still be denied, the government could govern without it. ‘There will be no excuse for me to demand evidence from him that he can get supply and no excuse for removing him and sending for someone willing to recommend an election,’ Kerr told the Palace.26
Whitlam was engaging in his own intimidation of the Governor-General. He was adopting his typical ‘crash through or crash’ approach that had served him so well in the past. During this conversation, Whitlam alluded to an early-twentieth-century constitutional crisis in Britain when the House of Lords defied the House of Commons. Whitlam said: ‘You are in the position of George V.’ Kerr replied: ‘But you are not in the position of Asquith. You cannot pack the Senate.’27
The crisis was in its early days. Yet dismissal and dissolution were being canvassed in Kerr’s discussions with Whitlam and Fraser, and in the public debate.
On 21 October, Whitlam spoke to Kerr at Government House prior to the swearing-in of ministers Paul Keating and Rex Patterson to new portfolios. Earlier that day, Kerr had phoned Whitlam during a caucus meeting and asked if the law officers—Attorney-General Kep Enderby and Solicitor-General Maurice Byers—could prepare an opinion on the Ellicott memorandum. Kerr, according to Whitlam, said it was ‘bullshit’ but still wanted the law officers’ view.28 In a revealing remark, Kerr told Charteris that he expected the Enderby–Byers opinion to ‘profoundly disagree’ with Ellicott’s views and perhaps argue ‘there is nothing left of any substance in the reserve powers’. Before even receiving the law officers’ opinion, Kerr had decided that ‘it does not follow that in an extreme constitutional crisis I would have to accept that’.29
In short, Kerr was highly sceptical of any legal opinion he might get from the law officers. He told Charteris: ‘I have of course, on any view, little room to move contrary to the Prime Minister’s advice.’ He was signalling to Charteris that he believed in the reserve powers, thought they may have to be exercised and made it clear he was not necessarily bound by Whitlam’s advice. In other words, Kerr had an independent role. He had earlier, however, reassured Whitlam that while it was ‘a very serious political crisis’ it had ‘not crossed the threshold yet into a true constitutional crisis’ that would require the Governor-General’s intervention.30 Kerr was sending different messages to Charteris and Whitlam.
But he decided on a tactic of mediation. Kerr asked Whitlam to allow him to discuss the crisis with Fraser. He explained to Charteris this would be an opportunity ‘subtly to direct a conversation with Leader of the Opposition to the point where he might see that he has to withdraw from the brink, having done all he could to force an election’.31
At 7.15 p.m. on 21 October, Kerr formally met with Fraser to canvass the situation. Fraser was resolute: he explained in detail the Opposition strategy. There would be no backing down and the supply bills would be deferred every time they were presented to the Senate. Fraser told Kerr it was already a constitutional crisis. ‘My effort therefore to explore alternative possibilities did not quite get off the ground,’ Kerr wrote to Charteris. This was Kerr at his most cunning. He was presenting himself to the Palace as a peacemaker if not a mediator. He had reassured Whitlam that he might be able to get Fraser to back down. But in this letter, he had also raised the options of dismissal and dissolution, and the belief that he had an independent role to play. ‘I am entitled to advise and warn the Prime Minister,’ Kerr wrote. But was he serious?32
In a further letter to Charteris on 30 October, Kerr insisted that he sought no ‘man of destiny’ role in the crisis. ‘I am simply looking into the future and exploring options,’ he said. ‘I have still not made up my mind.’ But Kerr did tell Charteris of one scenario that he was turning over in his mind:
It could easily happen that Parliament will, by the end of November, have finally and unequivocally denied supply and the Government will be attempting to govern without it. This will be so if one of the quite likely courses of events takes place, that is to say, if total deadlock persists. In such a situation it will become necessary to consider whether the Prime Minister and his Government should resign or recommend a dissolution. I should have to consider whether I should ask for this.33
Again, dismissal was a live option. But he had to be careful.
In an addendum to this letter, Kerr noted that public opinion was moving in Whitlam’s favour. A poll showed 70 per cent of capital city voters thought supply should be granted and 54 per cent believed Whitlam should be able to govern and not face an election.34
Kerr had now sent Charteris a flurry of letters since 16 October. How did the Palace respond? On 23 October, Charteris was far from encouraging Kerr towards a vice-regal intervention. ‘We must of course still hope that the crisis will somehow become de-fused and I am sure you are doing all that you can, properly, to see that this happens,’ he wrote. ‘I fear, however, that you are dealing with two resolute and obstinate men, neither of whom will find it at all easy politically or temperamentally to withdraw from the positions they have taken up.’35
But Charteris was influenced by public opinion in Australia. In a letter of 27 October, he speculated that Whitlam was on the verge of victory, hardly the attitude of a Palace that wanted to liquidate the Labor Prime Minister. ‘The impression here is that the political battle is swinging in the Prime Minister’s favour,’ Charteris wrote to Kerr.36
A week later, on 6 November, having met with Whitlam and Fraser, Kerr summed up the situation: ‘The crisis is now a very serious one and if both parties and their leaders remain adamant, an important decision one way or the other may have to be made by me this month.’37 In short, Kerr would make the decision.
His cultivation of the Palace was convoluting but clever. Kerr had made the case repeatedly for a possible intervention by the Governor-General and had outlined the various scenarios that might force his hand. As the crisis advanced, he had less confidence in Whitlam’s ability to resolve the deadlock. He believed that Fraser was unlikely to back down. Kerr felt threatened by both leaders—recall by Whitlam if Kerr acted independently and public attack by Fraser if he failed to act. In these circumstances, he was conditioning the Palace to accept his own autonomy of action.