Sir John Kerr’s distrust of Gough Whitlam and his dissatisfaction with the Whitlam Government emerged immediately after he was sworn in as Governor-General on 11 July 1974. On a range of issues, ceremonial and constitutional, Kerr was unhappy with the Whitlam Government, felt that he could not raise or satisfactorily resolve issues with Whitlam, and this annoyance intensified over time.
In the year prior to the supply crisis, Kerr raised trivial concerns about his dress for certain occasions and his desire to have a viceregal uniform, the musical salute to the Governor-General and the Order of Precedence. More significantly, Kerr raised questions about the legality of the attempt to raise the US$4 billion to invest in natural resource projects—the so-called ‘loans affair’. In addition, he worried about the basis on which Sir Paul Hasluck granted the double dissolution of the parliament in mid-1974, the appointment of Jim Cairns as Treasurer and whether he could give royal assent to money bills that had only passed the House of Representatives.
Kerr gave full expression to his doubts, his disappointments and his resentments in his correspondence with Sir Martin Charteris. As Kerr’s grievances grew, he felt increasingly alienated from Whitlam. In these circumstances, Kerr turned to Charteris for guidance and reassurance. The letters reveal Kerr to be petty and needy. But he also characterised Whitlam as an unreasonable and inflexible man who was leading an unorthodox government.
The long litany of grievances against Whitlam began in Kerr’s first letter to Charteris on 15 August 1974. He was not confident the government could arrest the steep rise in unemployment and inflation—‘stagflation’—and thought Labor’s cumbersome Cabinet and caucus was a handbrake on policymaking.1
The more significant issue Kerr raised in his first letter concerned his distrust of advice from the law officers. He was worried about the validity of the recent double dissolution election and subsequent joint sitting of parliament. He noted that Hasluck had granted a double dissolution months earlier on the basis that six bills were ‘allegedly’ twice rejected by the Senate. Hasluck accepted the legal advice and gave a double dissolution based on those six bills. Kerr was then presented with advice to summon an historic joint sitting where Whitlam planned to pass those six bills. But Kerr was alarmed. He said this presented him ‘with a rather difficult problem’ because he doubted that one of the bills, the Petroleum and Minerals Authority Bill, met the conditions under Section 57 of the Constitution.
Kerr noted that ‘the appropriate period of three months had not, as Sir Paul accepted that it had, passed between the first two rejections’. Hasluck had relied on an opinion from the Attorney-General, Lionel Murphy. As Kerr had to issue a proclamation for a joint sitting, he was worried that the Petroleum and Minerals Authority Bill did not meet the constitutional provision.2
He raised these concerns with Whitlam who brushed them aside. Kerr met with Clarrie Harders, the secretary of the Attorney-General’s Department, and Maurice Byers, the Solicitor-General, along with Whitlam. Byers, according to Kerr, agreed with the Attorney-General’s opinion. But Whitlam told Kerr that this was not a matter up for debate. ‘I could not and should not review what Sir Paul had done on this point,’ Kerr said of Whitlam’s advice.3
As a former Chief Justice, Kerr was decidedly unhappy about this. But he decided not to press the point. His own legal opinion was in conflict with the government’s legal advice—an issue that would arise again during the constitutional crisis. ‘I accepted this opinion for the reasons that I did not think that as Governor-General I should be my own lawyer, and make up my mind about what the law permitted me to do,’ Kerr wrote.4
Subsequently, the proclamation issued by Kerr was challenged in the High Court on several grounds. But the joint sitting, and the presentation of the Petroleum and Minerals Authority Bill, was allowed to proceed. Yet Kerr seemed obsessed about the issue. He emphasised to Charteris that he was not at fault. ‘The Proclamation was, of course, drafted by the Government and submitted to me as the Proclamation which I should make,’ he wrote.5 Charteris, as ever, in reply on 2 September flattered Kerr: ‘I can see that there is much advantage in his having a mind trained in the law, particularly when he has to contend with a written constitution.’6 In fact, Kerr’s legal view was subsequently vindicated when the High Court found that the Petroleum and Minerals Authority Bill did not meet the technical grounds for a double dissolution.
Kerr’s next point of alarm was senior public service appointments and the decision-making processes in government. He felt there was a breakdown in trust between ministers and the public service. Incredibly, he felt obliged to brief the Palace on these matters.
On 6 September 1974, Kerr told Charteris of the ‘feeling of malaise’ at the upper levels of the bureaucracy. He referred to the sentiment within Labor that the public service would not ‘respond enthusiastically’ to new policy at odds with the previous conservative government. Kerr was, essentially, blaming ministers for the ‘distrust’ between them and their departments. He noted the worrying appointment of personal advisers.7
Kerr was troubled by the ‘disturbing’ appointment of Sir John Bunting, the head of the Prime Minister’s Department, to London as High Commissioner and noted that his replacement, John Menadue, was ‘from outside’ the public service and had previously worked on Whitlam’s staff. Kerr reported that Treasury head Sir Frederick Wheeler was being ignored and that his policy advice on inflation had been ‘brushed aside completely’. He was also concerned about the appointment of Dr HC Coombs as chairman of the Royal Commission into the Australian Public Service. Kerr took the unusual step of holding ‘private talks’ with public servants and urging them not to ‘over-react’. Did he speak to Whitlam? ‘I am thinking of having a word with the Prime Minister,’ he wrote.8
These comments are revealing. They show a Governor-General obsessed about the alleged failings of the Whitlam Government and his compulsion to raise these issues with the Palace. Yet the internal workings of the Labor government had nothing whatsoever to do with the Palace. By this stage it was September 1974, the nature of the Whitlam Government was well known and Kerr had only been in office a few months. His suspicion of Whitlam was apparent from the start.
In reply on 14 September, Charteris noted that ‘personal advisers’ seem to be flourishing in Whitehall too. But he expressed a degree of sympathy with the government. ‘It is not, I think, surprising that after 23 years in opposition, the Cabinet and the Caucus should find it hard to believe that the Public Service was prepared to serve them as loyally as they had served their predecessors,’ he wrote. ‘It is a pity however that relations between them are not by now as good as they should be. I am sure that your influence will be most beneficial in improving the situation.’9
Charteris was flattering Kerr but also suggesting some of his concerns were unjustified. Close and cooperative relationships, regardless of personal opinion, were essential to good government, Charteris said. ‘I hope very much you are successful in establishing a good relationship with Mr Menadue,’ he wrote. But these hopes would be doomed.
Before Charteris had even replied, Kerr had dispatched another letter, this time expressing his anxiety over ceremonial matters. On 9 September, Kerr informed Charteris that he had decided to follow Canadian precedent and discontinue the curtsey greeting for the Governor-General and his wife and replace it with a ‘handshake’ and ‘slight bow’. The curtsey would still apply to the Queen, members of her family and heads of state.
More pressing was Kerr’s dress for his swearing-in. Whitlam suggested he wear a lounge suit. But Kerr protested. ‘I have decided to follow previous practice here and wear full morning dress and decorations,’ he told Charteris. This involved a wardrobe of top hat and tails. There were few limits to his pomposity.
His next concern was ‘the Royal Salute to the Governor-General’. Whitlam, following Canada’s lead, suggested the traditional ‘God Save The Queen’ be replaced with six bars of ‘God Save The Queen’ and eight bars of ‘Advance Australia Fair’, the new national anthem. Whitlam, according to Kerr, was ‘anxious’ that this be adopted. But, again, Kerr was not having it, informing Charteris it ‘may be better for me to leave the Vice-Regal Salute untouched for the time being’.10
Kerr’s vanity and self-importance brought him into conflict with the Prime Minister. Charteris responded on 14 September—his second letter on that date—with a typical mix of understanding and gentle guidance. First, he said Kerr was ‘wise’ in discontinuing the curtsey. Second, he agreed with Kerr’s decision to wear morning dress. But, third, Charteris suggested the ‘proper course’ regarding the royal salute would have been, in fact, to follow the ‘Canadian formula’. This counsel, contrary to Kerr’s views, was put with ‘diffidence’ given Charteris was ‘a long way away’. In short, Charteris told Kerr to follow his Prime Minister’s advice. Given ‘Advance Australia Fair’ was the national anthem, he said: ‘The Queens’ Representative should lend support to this decision.’ Further, Charteris said if Kerr did not follow Whitlam’s wishes it ‘might be taken amiss by the Prime Minister’.11
But Kerr still resisted. The following year, on 4 February 1975, he wrote to Charteris explaining that he had told Whitlam he wanted formal ‘political advice’ before adopting a new salute.12 By this stage, the Palace was obviously impatient. On 3 February 1975, Charteris dispatched a letter to Kerr invoking the Queen’s opinion. He said: ‘The Queen is in no doubt that the sensible solution is to have six bars of “God Save The Queen” followed by eight bars of “Advance Australia Fair”.’ Charteris also suggested to Kerr that he could let it be known privately to Whitlam and state governors that the Queen supported this.13
These ceremonial exchanges are illuminating. They show not just Kerr’s preoccupation with ceremony but a willingness to challenge Whitlam and even require advice from the Prime Minister on such matters. Kerr was also prepared, initially, to ignore advice from the Palace. It is apparent that Charteris was unimpressed and eventually had to write, in the Queen’s name, to pull Kerr into line.
Another area of concern on the Governor-General’s part was ministerial changes. On 21 November 1974, Whitlam informed Kerr that he planned to appoint Dr Jim Cairns to the Treasury portfolio and move Frank Crean into the Trade portfolio. Whitlam explained that he wanted ‘a strong Minister’ in Treasury. Whitlam told Kerr, given the speculation, that he wanted to make the announcement but did not want the ministerial changes to take effect until the end of the year. Whitlam felt it would be better to keep Cairns and Crean in their respective portfolios until parliament had adjourned. Incredibly, Kerr saw this request as problematic. He revealed to Charteris that he ‘had some difficulty about whether I should agree to an announcement being made in advance of the actual change’.14
This is extraordinary. It shows Kerr’s extreme sensitivity about his office and his obsession about being taken for granted. Announcing a ministerial change three weeks before it takes effect might be unusual but hardly controversial and certainly not improper. In the end, he agreed with Whitlam’s advice and the announcement was made.
In the same letter, however, Kerr raised his concern about the new system of Australian honours that would replace imperial honours. Whitlam proposed the new system be based on the Canadian honours. But Kerr saw ‘some difficulty’ and ‘problems’ because some states would continue imperial honours and it would be ‘difficult to see how we could have two systems’ in place. But Kerr went further. He said to Charteris it might be better to hold off introducing a new system as the ‘political situation’ is ‘certainly not stable and there could conceivably be a change of Government next year’.15
This is an astonishing statement. The Governor-General was resisting Whitlam’s policy. But he put the onus back on the Palace. Kerr said that if ‘Her Majesty’ thought that an ‘Australian Order’ could be established that meant terminating British honours, then it ‘could’ be ‘organised’.16
Charteris, in reply on 4 December, made clear the views of the Palace, writing the ‘best solution would be for an Australian Order to be established and British Honours to cease, provided this was accepted throughout Australia’. He continued: ‘I am sure this is something to which The Queen would give her full support.’ This was yet another message to Kerr that the Governor-General should be accepting Whitlam’s program and not frustrating it.17
But the saga continued. On 4 February 1975, Kerr wrote to Charteris saying that he supported a new honours system but still saw problems with it and had asked Whitlam to give him formal ‘advice’ to ‘seek The Queen’s approval’.18 On 10 February, Charteris advised Kerr that the Queen had given Whitlam ‘her approval’ for a new Australian honours system after a few minor amendments were made to his draft submission and supporting documents.19
There were other issues that concerned Kerr. As part of Whitlam’s renovation of Australia’s symbols, honours and protocols there was a new Table of Precedence for official events that would downgrade or exclude those who had been honoured by the Queen such as knights and Privy Councillors. Whitlam presented the table to the Queen for approval in London in December 1974. Kerr opposed this change. On 19 December Kerr sent three remarkable telegrams. The first was to Charteris:
PRIME MINISTER WILL BE SUBMITTING PROPOSED NEW AUSTRALIAN TABLE OF PRECEDENCE TO THE QUEEN TOMORROW STOP WOULD YOU PLEASE ADVISE THE QUEEN THAT THE NEW 20 TABLE HAS MY SUPPORT STOP20
The second telegram was also to Charteris. But this telegram was marked ‘PERSONAL AND IN CONFIDENCE’. Kerr reiterated his ‘formal advice’ of ‘support’ for the new Table of Precedence. But then he contradicted his formal advice with informal opposition because knights and Privy Councillors ‘and other decorations’ would be excluded from the table:
IN MY VIEW PERSONS HONOURED BY THE SOVEREIGN, WHETHER UNDER PRESENT OR FUTURE HONOURS SYSTEM, SHOULD HAVE A PLACE IN TABLE OF PRECEDENCE STOP FUTHERMORE, PERSONS ALREADY ENJOYING A PLACE IN TABLE OF PRECEDENCE SHOULD NOT BE DEPRIVED BECAUSE OF A CHANGE OF POLICY … I ATTEMPTED WITHIN CONSTITUTIONAL LIMITS TO PERSUADE PRIME MINISTER NOT TO EXCLUDE THESE CLASSES STOP UNABLE TO OBTAIN AGREEMENT OF PRIME MINISTER AND HAVE THEREFORE FELT IMPELLED TO SUPPORT TABLE IN THE FORM IN WHICH HE FINALLY ADVISED ME21
The final telegram was to Whitlam:
STILL DISAPPOINTED THAT PROPOSED TABLE OF PRECEDENCE MAKES NO PROVISION FOR THOSE WHO HAVE BEEN OR MAY BE HONOURED BY THE QUEEN, HOWEVER, AS THIS VIEW HAS BEEN PUT TO YOU AND YOU HAVE DECIDED TO EXCLUDE IT I HAVE FELT IMPELLED TO PUT THE PROPOSED TABLE TO THE QUEEN, ON YOUR ADVICE, WITH MY SUPPORT22
Kerr was playing a double game with the Palace. Governors-General should not act in this fashion. He was also deceiving Whitlam.
But the Governor-General’s deepest source of alarm before the constitutional crisis was the loans affair and his belief that his office had been compromised. In a lengthy letter of 21 July 1975, Kerr explained the situation to Charteris. He referred to the Executive Council meeting in Canberra on 13–14 December 1974 that authorised the raising of the US$4 billion overseas loan. Kerr believed this was an improper meeting of the Executive Council. He had been at the opera in Sydney on the evening of 13 December and did not attend the meeting.
‘What I shall now say is very confidential,’ Kerr told Charteris. ‘I was never told that a meeting was to take place, never asked to preside and never agreed to it taking place in my absence.’ At 2 a.m., David Smith, the official secretary, was phoned by an official in the Prime Minister’s Department who advised that documents from the meeting would be sent to Admiralty House in Sydney for Kerr to sign. Whitlam phoned Kerr the following morning and asked for his ‘ex post facto approval’ of the Executive Council meeting and its decisions—notably the overseas loan. Kerr signed the minute as requested, but he was deeply troubled. He had been falsely criticised by the media for not being present and instead being at the opera. This irritated Kerr. He wrote that the ‘press has not yet discovered that I was told nothing about it till it was over’.23
Kerr’s alarm was justified. Strict procedure requires the Governor-General to be informed of any Executive Council meeting beforehand. The legal advice on which the government acted given by Attorney-General Lionel Murphy was dubious in the extreme. More than any other issue, the loans affair generated within Kerr a sense of suspicion and distrust of the government. It left Kerr with a justified feeling that the Whitlam Government had a deep streak of unorthodoxy and was prepared to break established norms of governance. He was on guard.
Charteris was stunned by Kerr’s account of the Executive Council meeting, writing on 30 July that it ‘is one of the most amazing I have ever heard’. He continued: ‘You were badly treated and I am particularly sorry that there should have been some implied criticisms of your attendance at the Opera rather than at the Executive Council.’24
On 4 January 1975, thinking about his first six months as Governor-General and his disagreements with the Prime Minister, Kerr asked Charteris for guidance in how to handle Whitlam. This was an extraordinary request. It was Kerr’s job to handle Whitlam, not the job of the Palace. Referring to the Table of Precedence, Kerr asked Charteris if he ‘may feel disposed to suggest to me improved ways of handling a matter such as this’ in the future.25 In reply, on 3 February, Charteris sympathised with Kerr about the ‘difficulties’ he had with Whitlam. Charteris noted that while the Queen was interested in ‘what happens in Australia’, she was 12 000 miles away and ‘not as closely informed of detail’ as was Kerr. Charteris said it ‘really must be for you as her Representative to fight the case’.26
The message was unmistakable: it was up to Kerr to deal with Whitlam and resolve any differences between them. Charteris, prompted by Kerr, took the opportunity to gently provide Kerr with some counsel, based on his ‘experience’ at the Palace in dealing with Prime Ministers. He explained that the Queen’s ‘contact’ with the British Prime Minister took place on two levels: directly through the weekly audience and indirectly through her staff, the Prime Minister’s office and senior public servants in Whitehall.
Her Majesty receives the Prime Minister once a week when she is in London and the audience goes on for over an hour. If the Prime Minister had something to talk about which concerned The Sovereign’s prerogative, one would expect the matter to be discussed at one of these audiences, in tranquillity and before it became an immediate issue.
At a lower level there is close and continuous contact between The Queen’s Private Secretary and the Secretary of the Cabinet, and the Prime Minister’s Private Secretary. If anything was going on I should expect to hear about it well ahead of time on this low level net and be able to brief The Queen before the audience.27
This was useful advice, even though elementary for a Governor-General in dealing with a Prime Minister. It was extraordinary that Charteris had to explain this to Kerr. He gave the Governor-General sound advice. Charteris told Kerr ‘the best hope of being able to foresee trouble’ and ‘being ready to deal with it’ is to ensure that there is ‘close and continuous’ contact between a Governor-General and his Prime Minister.
Kerr singularly ignored this advice.