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1975 Australian constitutional crisis

Date	October–November 1975
Location	Canberra, Australian Capital Territory (Government House, Canberra, Provisional Parliament House, Canberra, The Lodge, Canberra)
Participants	Sir John Kerr Gough Whitlam Malcolm Fraser
Outcome	Whitlam dismissed as Prime Minister by Kerr; Fraser commissioned as caretaker Prime Minister

The 1975 Australian constitutional crisis, also known simply as the Dismissal, has been described as the greatest political and constitutional crisis in Australian history. It culminated on 11 November 1975 with the dismissal from office of the Prime Minister, Gough Whitlam of the Australian Labor Party (ALP), by Governor-General Sir John Kerr, who then commissioned the Leader of the Opposition, Malcolm Fraser of the Liberal Party, as caretaker Prime Minister.

Whitlam's Labor government had been elected in 1972 with a small majority in the House of Representatives, but with the Opposition controlling the Senate. Another election in 1974 resulted in little change. While the Whitlam Government introduced many new policies and programs, it was also rocked by scandals and political miscalculations. In October 1975, the Opposition used its control of the Senate to defer passage of appropriation bills (needed to finance government expenditure), that had been passed by the House of Representatives. The Opposition stated that they would continue their stance unless Whitlam called an election for the House of Representatives, and urged Kerr to dismiss Whitlam unless he agreed to their demand. Whitlam believed that Kerr would not dismiss him, and Kerr did nothing to disabuse Whitlam of this notion.

On 11 November 1975, Whitlam intended to call a half-Senate election in an attempt to break the deadlock. When he went to seek Kerr's approval of the election, Kerr instead dismissed him as Prime Minister and shortly thereafter installed Fraser in his place. Acting quickly before all ALP parliamentarians became aware of the change of government, Fraser and his allies were able to secure passage of the appropriation bills, and Kerr dissolved Parliament for a double dissolution election. Fraser and his government were returned with a massive majority in the election held the following month.

The events of the Dismissal led to only minor constitutional change. The Senate retained its power to block supply, and the Governor-General the power to dismiss government ministers. However, these powers have not since been used to force a government from office. Kerr was widely criticised by ALP supporters for his actions, resigned early as Governor-General, and lived much of his remaining life abroad.

Background

Constitutional

Governor-General Sir John Kerr

Prime Minister Gough Whitlam (left) with US President Richard Nixon

Malcolm Fraser

As established by the Constitution of Australia, the Parliament of Australia is composed of two houses, the House of Representatives and the Senate, together with the Queen. The monarch is represented through the Governor-General, who has executive powers granted in the Constitution,^[1] as well as rarely exercised reserve powers.^[2] The reserve powers are the legal authorities remaining in the Crown after most of its historic powers were transferred to Parliament or to officials. The Governor-General is ordinarily bound by convention to act only upon the advice of the government and the Prime Minister, but can act independently and against advice in exercising the reserve powers.^[3] The Governor-General is removable by the Queen on the advice of the Australian Prime Minister. As Liberal Party leader Malcolm Fraser, who would play a large part in the crisis, put it, "The Queen has tenure, and she couldn't be sacked. But a Governor-General holds office at pleasure, and if he ceases to please then he can be removed by a Prime Minister."^[4]

As in most Westminster system parliaments, Australia's government is ordinarily formed by the party enjoying the confidence of the lower House of Parliament, the House of Representatives. However, Australia's Parliament also has a powerful upper house, the Senate, which must pass any legislation initiated by the House of Representatives if it is to become law. The composition of the Senate, in which each state has an equal number of senators regardless of that state's population, was originally designed to attract the Australian colonies into one Federation.^[5] The Constitution forbids the Senate to originate or amend a money bill, but places no limitation on the Senate's ability to defeat one. In 1970, Gough Whitlam, as Leader of the Opposition, had stated of a budget bill, "Let me make it clear at the outset that our opposition to this Budget is no mere formality. We intend to press our opposition by all available means on all related measures in both Houses. If the motion is defeated, we will vote against the Bills here and in the Senate. Our purpose is to destroy this Budget and destroy the Government which has sponsored it."^[6]

Prior to the 1975 crisis, the Governor-General's power to dismiss a Prime Minister against the incumbent's will under Section 64 of the Constitution had never been exercised. Twice since Federation, conflicts between state premiers and state governors, who perform analogous functions to the Prime Minister and Governor-General respectively at the state level, had resulted in the departure of one or the other. In 1916, New South Wales Premier William Holman was expelled from the Australian Labor Party for supporting conscription. He managed to hold on to power with the aid of opposition parties and consulted the Governor, Sir Gerald Strickland, proposing to pass legislation to extend the term of the lower house of the state legislature by a year. When Strickland objected, stating that such a course was unfair to Labor, Holman had him replaced.^[7] In 1932 the New South Wales Labor Premier, Jack Lang, refused to pay moneys owing to the Federal government, which froze the state's bank accounts, causing Lang to order that payments to the state government be only in cash. The governor, Sir Philip Game, wrote to Lang, warning him that ministers were breaking the law, and that if they continued, he would have to obtain ministers who could carry on government within legal bounds. Lang replied that he would not resign, and Game dismissed his government and commissioned the Leader of the Opposition, Bertram Stevens, to form a caretaker government pending a new election, in which Labor was defeated.^[8]

Among the powers granted to the Governor-General is the power to dissolve both houses of Parliament under Section 57 of the Constitution in the event that the House of Representatives twice passes a bill at least three months apart and the Senate refuses to pass it. In both instances where those circumstances arose prior to the Whitlam Government, in 1914 and 1951, the Governor-General dissolved Parliament for a "double dissolution" election on the advice of the Prime Minister.^[9]

Political

Gough Whitlam's Labor government was elected in 1972 after 23 years of rule by a coalition formed by the Liberal and Country parties. The ALP Government enjoyed a nine-seat majority in the House of Representatives,^[10] but did not control the Senate.^[11] In accordance with pre-election promises, it instituted a large number of policy changes, and offered much legislation. The Opposition, which still controlled the Senate, allowed some Government bills to pass the Senate, and blocked others.^[12]

In April 1974, faced with attempts by the Opposition to block supply (appropriation bills) in the Senate, Whitlam obtained the concurrence of the Governor-General, Sir Paul Hasluck, to a double dissolution.^[13] Labor was returned at the election on 18 May with a reduced House majority of five seats. The Coalition and Labor each had 29 Senate seats, with the balance of power held by two independents.^[14]

Hasluck had been Governor-General since 1969, and his term was shortly due to expire. Whitlam wanted him to remain a further two years, but Hasluck declined, citing his wife's refusal to remain at Yarralumla longer than the originally agreed five years.^[15] Whitlam offered the post to businessman Ken Myer, who turned it down. Whitlam then turned to Sir John Kerr, the Chief Justice of New South Wales. Kerr was reluctant to give up the Chief Justiceship, in which he intended to remain another ten years, for the Governor-General's post, which traditionally lasted five years. At Kerr's request, Whitlam informally agreed that if both men were still in office in five years, Kerr would be reappointed. Whitlam also secured legislation to address Kerr's financial concerns about the position, including authorising a pension for the Governor-General or his widow. The Leader of the Opposition, Billy Snedden, was enthusiastic about the appointment and also agreed to reappoint Kerr in five years, were he Prime Minister at the time. Kerr then agreed to take the post, was duly appointed by Queen Elizabeth II, and was sworn in on 11 July 1974.^[16]

Six of the bills that had been the subject of the double dissolution were introduced in Parliament a third time and, as expected, were again rejected by the Senate. Section 57 of the Constitution provides that, after a double dissolution election, if bills that had been rejected twice by the Senate in the previous parliament were again passed by the House and again rejected by the Senate, they could then be put to a joint sitting of both houses. On 30 July, Whitlam gained Kerr's agreement for a joint sitting, which was set for 6–7 August 1974. The joint sitting, the only one in Australia's history under Section 57, passed all six bills, including the enabling legislation for Medibank.^[17]

Controversy and vacancies

In December 1974, Whitlam was anxious to find new sources of money to finance his development plans. After a meeting at the Prime Minister's residence, The Lodge, Whitlam and three of his ministers (Deputy Prime Minister and Treasurer Jim Cairns, Attorney-General Senator Lionel Murphy, and Minister for Minerals and Energy Rex Connor) signed a letter of authority for Connor to borrow up to US$4 billion. This letter was described by author and journalist Alan Reid as the "death warrant of the Whitlam ALP government".^[18]

Connor and other ministers had made contact with a hitherto obscure Pakistani financier, Tirath Khemlani, as early as November 1974. Khemlani was said to have contacts in the newly enriched Arab oil nations.^[19] None of the efforts to secure a loan, whether through Khemlani or by other routes, bore fruit but, as information about the "Loans Affair" trickled out, the government lost support.^[20]

In February 1975, Whitlam decided to appoint Senator Murphy a justice of the High Court of Australia, even though Murphy's Senate seat would not be up for election if a half-Senate election were held. Under proportional representation, Labor could win three of the five New South Wales seats, but if Murphy's seat was also contested, it was most unlikely to win four out of six. Thus, appointing Murphy would almost certainly cost the ALP a Senate seat at the next half-Senate election.^[21] Whitlam appointed Murphy anyway. By convention, senators appointed by the state legislature to fill casual vacancies were from the same political party as the former senator. The New South Wales premier, Tom Lewis, felt that this convention only applied to vacancies caused by deaths or ill-health, and arranged for the legislature to elect Cleaver Bunton, former mayor of Albury and an independent.^[22]

By March 1975, many Liberal parliamentarians felt that Snedden was doing an inadequate job as Leader of the Opposition and that Whitlam was dominating him in the House of Representatives.^[23] Malcolm Fraser challenged Snedden for the leadership on 21 March, and defeated him by 37 votes to 27.^[24] At a press conference after winning the leadership, Fraser stated:

The question of supply—let me deal with it this way. I generally believe if a government is elected to power in the lower House and has the numbers and can maintain the numbers in the lower House, it is entitled to expect that it will govern for the three-year term unless quite extraordinary events intervene ... Having said that ... if we do make up our minds at some stage that the Government is so reprehensible that an Opposition must use whatever power is available to it, then I'd want to find a situation in which Mr Whitlam woke up one morning finding the decision had been made and finding that he had been caught with his pants well and truly down.^[25]

Whitlam's original deputy prime minister, Lance Barnard, had been challenged and defeated for his post by Cairns in June 1974 shortly after the May 1974 election. Whitlam then offered Barnard a diplomatic post; in early 1975 Barnard agreed to this. If the appointment went through, Barnard's resignation from the House of Representatives would trigger a by-election in his Tasmanian electorate of Bass. ALP officials felt that, given the party's weakened state, Barnard should remain in Parliament and be given no preferment if he resigned; party president and future Prime Minister Bob Hawke described the decision to appoint Barnard as "an act of lunacy".^[26] Barnard had been losing support over the last several elections, and the Liberals needed only a swing of 4% to take Bass off Labor. The Liberals had a candidate, Kevin Newman, who had been nursing the electorate; Labor had no candidate selected and a bitter preselection in the offing.^[27] Barnard resigned and was appointed the ambassador to Sweden. The election on 28 June proved a disaster for Labor, with Newman winning the seat on a swing of over 17%.^[28]

The next week, Whitlam fired Cairns for misleading Parliament regarding the Loans Affair amid innuendo about his relationship with his Principal Private Secretary, Junie Morosi. He was replaced as deputy by Frank Crean.^[29] At the time of Cairns' dismissal, one Senate seat was vacant, following the death on 30 June of Queensland ALP Senator Bertie Milliner. The state Labor party nominated Mal Colston, who was the highest unelected candidate on the party's Queensland list in 1974. This resulted in deadlock in Brisbane; the unicameral Queensland legislature twice voted against Colston, and the party refused to submit any alternative candidates.^[30] Queensland Country Party Premier Joh Bjelke-Petersen had evidence that Colston, a schoolteacher by trade, had set a school on fire during a labour dispute, though the police had refused to prosecute.^[31] After the legislature voted Colston down a second time, Bjelke-Petersen instructed his majority in the legislature to elect a low-level union official, Albert Field, who had contacted his office and expressed a willingness to serve. In interviews, Field made it clear he would not support Whitlam. Field was expelled from the ALP for standing against Colston, and Labor senators boycotted his swearing-in.^[30] Whitlam argued that because of the vacancies being filled as they were, the Senate was "corrupted" and "tainted", with the Opposition enjoying a majority they did not win at the ballot box.^[32] When Labor learned that Field had not given the required three weeks' notice to the Queensland Department of Education, it challenged his appointment in the High Court, arguing that he was still technically a public servant–and thus ineligible to serve in the Senate. With Field on leave throughout the remainder of the crisis, the Coalition refused to provide a "pair" to account for his absence, giving it an effective majority of 30–29 in the Senate.^[33]

Deadlock

Deferral of supply

The Senate chamber at the Provisional Parliament House

On 10 October, the High Court ruled that the act passed at the joint sitting that gave the Australian Capital Territory (ACT) and the Northern Territory two senators each was valid. A half-Senate election needed to be held by June 1976; most senators-elect would take their seats on 1 July but the territorial senators, and those filling Field's and Bunton's seats would take their places at once.^[34] The ruling meant that it was possible for the ALP to gain a temporary majority in the Senate, at least until 1 July 1976. To do so, the ALP would have to win Field's and Bunton's seats, and one seat in each territory, and have the second ACT seat fall to either a Labor candidate or an independent, former Liberal Prime Minister John Gorton, now estranged from his party. If this happened, Labor would have an effective 33–31 margin, would be able to pass supply if that was still an issue, and also could pass electoral redistribution laws (which had been passed by the House, though twice defeated by the Senate) that would give it an advantage at the next election.^[35]

The journalist and author Alan Reid described the position of the Government and Opposition as the crisis became acute in mid-October:

While it was possibly an overstatement to describe the 1975 position as a choice between evils, neither of the two major political groupings reached the 15 October 1975 crunch position with completely clean hands. Fraser and the Liberal-CP senators ... lacked the numbers to defer the Budget until the arrival in the Senate of Albert Patrick Field, whose arrival was not due to any decision by the Australian voters but to a decision by one of the rulers, the Whitlam-hating Bjelke-Petersen ... Whitlam for his part had decided even before the Budget was deferred to embark upon the bold, Cromwellian project of changing the Australian Constitution, not through the vote of the mass electorate ... but through prodigious personal exertions backed by the support of his parliamentary followers.^[36]

In the wake of the High Court ruling, and with the appropriation bills due to be considered by the Senate on 16 October, Fraser was undecided whether to block supply. His biographer, Philip Ayres, contends that, had there been no further government scandals, he would not have done so. Khemlani, however, had alleged - contrary to government statements - that Connor had never revoked his authority to obtain loans and had been in regular contact with him even into mid-1975. On 13 October, the Melbourne Herald printed documents in support of Khemlani's allegations, and on the following day, Connor resigned.^[37] Fraser determined to block supply, convened a shadow cabinet meeting and received the unanimous support of the Coalition frontbench.^[38] At a press conference, Fraser cited the poor state of the economy and the continuing scandals as reasons for his decision. Without the passage of fresh appropriations, supply would be exhausted on 30 November.^[39]

On 15 October the Governor of Queensland, Sir Colin Hannah, gave a speech denigrating the Whitlam Government, in violation of the convention that state governors remain neutral. Hannah held a dormant commission as Administrator of the Commonwealth to act as Governor-General in the event of Kerr's death, resignation, or absence from Australia. Whitlam immediately contacted Buckingham Palace to arrange for Hannah's dormant commission to be revoked, a process which took ten days to complete.^[40] Although Whitlam later alleged that he never contemplated dismissing Kerr during the crisis, on 16 October, while speaking with Kerr and visiting Malaysian Prime Minister Tun Abdul Razak, he told Kerr that if the crisis continued, "It could be a question of whether I get to the Queen first for your recall, or whether you get in first with my dismissal". Kerr saw the statement as a threat; Whitlam later stated the comment was "flippant" and designed to turn the conversation to another subject.^[41]

On 16 and 17 October, the Senate, with the unanimous support of the Coalition majority, deferred the appropriation bills.^[39] The Coalition took the position that Kerr could dismiss Whitlam if the Government could not secure supply. Whitlam's former solicitor-general Bob Ellicott, now a Liberal member of the House, issued a legal opinion on 16 October stating that the Governor-General had the power to dismiss Whitlam, and should do so forthwith if Whitlam could not state how he would obtain supply. Ellicott indicated that Whitlam was treating Kerr as if he had no discretion but to follow prime ministerial advice, when in fact the Governor-General could and should dismiss a ministry unable to secure supply. Ellicott stated that Kerr

should ask the Prime Minister if the Government is prepared to advise him to dissolve the House of Representatives and the Senate or the House of Representatives alone as a means of assuring that the disagreement between the two Houses is resolved. If the Prime Minister refuses to do either, it is then open to the Governor-General to dismiss his present Ministers and seek others who are prepared to give him the only proper advice open. This he should proceed to do.^[42]

Consultations and negotiations

Kerr rang Whitlam on Sunday 19 October, asking permission to consult with the Chief Justice of the High Court, Sir Garfield Barwick, concerning the crisis. Whitlam advised Kerr not to do so, noting that no Governor-General had consulted with a Chief Justice under similar circumstances since 1914, when Australia was at a much earlier stage of her constitutional development.^[43] On 21 October, Kerr phoned Whitlam regarding the Ellicott opinion, and asked, "It's all bullshit, isn't it?". Whitlam agreed with Kerr's view. Kerr then requested that the Government provide him with a written legal opinion rebutting Ellicott's views.^[44] Kerr would receive no written advice from the Government until 6 November.^[45] Journalist and author Paul Kelly, who wrote two books on the crisis, paints this delay as a major mistake by Whitlam, given Kerr's judicial background.^[45] Kerr also asked on 21 October for Whitlam's permission to interview Fraser, which the Prime Minister readily granted, and the two men met that night. Fraser told Kerr that the Opposition were determined to block supply. Fraser indicated that the Opposition's decision to defer the appropriation bills, rather than defeating them, was a tactical decision, since then the bills would remain in the control of the Senate and could be passed at any time. He stated that the Coalition agreed with the Ellicott opinion, and proposed to continue deferring supply while it awaited events.^[46] The media were not told of the substance of the conversation, and instead reported that Kerr had reprimanded Fraser for blocking supply, causing the Governor-General's office to issue a denial.^[47]

Throughout the crisis, Kerr did not tell Whitlam of his increasing concerns, nor did he suggest that he might dismiss Whitlam. He believed nothing he said would influence Whitlam, and feared that, if Whitlam perceived him as a possible opponent, the Prime Minister would procure his dismissal from the Queen. Accordingly, though Kerr dealt with Whitlam in an affable manner, he did not confide his thinking to the Prime Minister.^[48] Labor Senator Tony Mulvihill later related that "Whitlam would come back to each caucus meeting and say, 'I saw His Excellency ... No worry. He's got to do it his way.' ... at no time did he hint that the Governor-General was frowning."^[49]

There was intense public interest and concern at the stalemate, and Fraser and his Liberals acted to shore up support. Liberal frontbenchers worked to build unity for the tactic in state organisations. The former longtime Premier of South Australia Sir Thomas Playford was speaking out against the blocking of supply, causing South Australia Senator Don Jessop to waver in his support for the tactic. Fraser was able to co-ordinate a wave of communications from party members which served to neutralise both men. Fraser sought the backing of the retired longtime Liberal Prime Minister, Sir Robert Menzies, and went to see Menzies in person, taking with him a 1947 statement by Menzies supporting the blocking of supply in the upper house of the Victorian Parliament. He did not have to use the paper; Menzies stated that he found the tactic distasteful, but in this case necessary. The former Prime Minister issued a statement in support of Fraser's tactics.^[50]

Kerr invited Whitlam and Minister for Labour Senator Jim McClelland to lunch on 30 October, immediately preceding an Executive Council meeting. At that meal, Kerr proposed a possible compromise. If the Opposition were to allow supply to pass, Whitlam would not advise a half-Senate election until May or June 1976, and the Senate would not convene until 1 July, thus obviating the threat of a possible temporary Labor majority. Whitlam, who was determined to destroy both Fraser's leadership and the Senate's right to block supply, refused any compromise.^[51]

Decision

Because of the federal nature of our Constitution and because of its provisions the Senate undoubtedly has constitutional power to refuse or defer supply to the Government. Because of the principles of responsible government a Prime Minister who cannot obtain supply, including money for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority and indeed the duty under the Constitution to withdraw his Commission as Prime Minister. The position in Australia is quite different from a position in the United Kingdom. Here the confidence of both Houses on supply is necessary to ensure its provision. In United Kingdom the confidence of the House of Commons alone is necessary. But both here and in the United Kingdom the duty of the Prime Minister is the same in a most important aspect – if he cannot get supply he must resign or advise an election.

— Governor-General Sir John Kerr, Statement (dated 11 November 1975)^[52]

Fraser chaired a summit of leaders of the Coalition parties on 2 November. The resulting communiqué urged the Coalition senators to continue deferring supply. It also threatened, should Kerr grant Whitlam a half-Senate election, that the Coalition state premiers would advise their governors not to issue writs, thus blocking the election from taking place in the four states with non-Labor premiers.^[53] After the meeting, Fraser proposed a compromise: that the Opposition would concede supply if Whitlam agreed to hold a House of Representatives election at the same time as the half-Senate election.^[54] Whitlam rejected the idea.^[55]

On 22 October, Whitlam had asked the Attorney-General, Kep Enderby, to have a paper drafted rebutting the Ellicott opinion for presentation to Kerr. Enderby delegated this task to the Solicitor-General, Maurice Byers, and other officials. On 6 November, Enderby was to see Kerr to give him a legal opinion regarding the Government's alternative plans in case supply ran out. Vouchers were to be issued to Commonwealth employees and contractors instead of cheques, to be redeemed from banks after the crisis ended—transactions which were to be rejected by major banks as "tainted with illegality".^[56] Enderby decided to present Kerr with the rebuttal to Ellicott. When Enderby reviewed the document, he found that, while it argued for the Government's position, it recognised both that the Senate had the constitutional right to block supply, and that the reserve powers were still extant—matters with which Enderby did not agree. He presented Kerr with the rebuttal, but crossed out Byers' signature on it and told Kerr of his disagreement. Enderby told Kerr that the Byers rebuttal was "background" for formal written advice, to be presented by Whitlam.^[57] Later that day, Kerr met with Fraser again. The Opposition leader told him that if Kerr did not dismiss Whitlam, the Opposition planned to criticise him in Parliament for failing to carry out his duty.^[58]

Kerr concluded on 6 November that neither Government nor Opposition would yield and had received advice that day from Treasurer Bill Hayden that supply would run out on 27 November.^[59] The Governor-General decided that, as Whitlam could not secure supply, and would not resign or advise an election for the House of Representatives, he would have to sack him. As Kerr feared that Whitlam might advise the Queen to dismiss him, he considered it important that Whitlam be given no hint of the impending action. Kerr later stated that were Whitlam to seek his dismissal, it would involve the Queen in politics.^[60] Seeking confirmation of his decision, he contacted Chief Justice Barwick, met with him and asked for his views of a dismissal of Whitlam. Barwick furnished him with written advice containing his view that a Governor-General could and should dismiss a Prime Minister who was unable to obtain supply.^[61] Barwick specified that the Prime Minister should also not have refused either to resign or to advise a general election, with which Kerr agreed. Another member of the High Court and a friend of Kerr, Sir Anthony Mason, gave Kerr similar advice privately on 9 November. But Mason added that the Governor-General needed to notify the Prime Minister of his intention to proceed to dismissal.^[62]

On 9 November, Fraser contacted Whitlam and invited him to negotiations with the Coalition aimed at settling the dispute. Whitlam agreed, and a meeting was set for 9 am on Tuesday 11 November, at Parliament House. That Tuesday was also the deadline for an election to be called if it were to be held before Christmas.^[63] Both Government and Opposition leaders were in Melbourne on the night of 10 November for the Lord Mayor's banquet. To ensure the Opposition leaders could reach Canberra in time for the meeting, Whitlam brought them back in his VIP aircraft, which arrived in Canberra at midnight.^[64]

Dismissal

Meeting at Yarralumla

Yarralumla, the official residence of the Governor-General

At 9 a.m. on 11 November, Whitlam, together with deputy prime minister Frank Crean and Leader of the House Fred Daly, met with Fraser and Country Party leader Doug Anthony. No compromise could be reached. Whitlam informed the Coalition leaders that he would be advising Kerr to hold a half-Senate election on 13 December, and he would not be seeking interim supply for the period before the election. Thinking it unlikely that Kerr would grant the election without supply, Fraser warned Whitlam that the Governor-General might make up his own mind about the matter. Whitlam was dismissive^[65] and after the meeting broke, telephoned Kerr to tell him that he needed an appointment to advise him to hold a half-Senate election. Both men were busy in the morning, Kerr with Remembrance Day commemorations, and Whitlam with a caucus meeting and a censure motion in the House which the Opposition had submitted. The two discussed a meeting for 1:00 p.m.,^[66] though Kerr's office later called Whitlam's and confirmed the time as 12:45. Word of this change did not reach the Prime Minister.^[67] Whitlam announced the request for a half-Senate election to his caucus, which approved it.^[68]

After hearing from Whitlam, Kerr called Fraser. According to Fraser, Kerr asked him whether he, if commissioned Prime Minister, could secure supply, would immediately thereafter advise a double-dissolution election, and would refrain from new policies and investigations of the Whitlam Government pending the election. Fraser stated that he agreed. Kerr denied the exchange took place via telephone, though both men agree those questions were asked later in the day before Kerr commissioned Fraser as Prime Minister.^[69] According to Kerr, Fraser was supposed to come to Yarralumla at 1.00 pm.^[67]

Whitlam was delayed in leaving Parliament House, while Fraser left slightly early, with the result that Fraser arrived at Yarralumla first. He was taken into an anteroom, and his car was moved. Whitlam maintained that the purpose in moving Fraser's car was to ensure that the Prime Minister was not tipped off by seeing it, stating, "Had I known Mr. Fraser was already there, I would not have set foot in Yarralumla."^[70] Kelly doubted Whitlam would have recognised Fraser's car, which was an ordinary Ford LTD from the car pool.^[71] According to Fraser biographer Philip Ayres, "A white car pulled up at the front would signify nothing in particular—it would simply be in the way".^[72]

Whitlam arrived just before 1:00 p.m. and was taken to Kerr's office by an aide. He brought with him the formal letter advising a half-Senate election, and after the two men were seated, attempted to give it to Kerr. In their accounts of their meeting, both men agree that Kerr then told Whitlam that his commission as Prime Minister was withdrawn under Section 64 of the Constitution,^[73] and handed him a letter and statement of reasons. Kerr later wrote that at this point Whitlam got to his feet, looked at the office's phones, and stated, "I must get in touch with the Palace at once."^[74] Whitlam, however disputed this, and stated that he asked Kerr whether he had consulted the Palace, to which Kerr replied that he did not need to, and that he had the advice of Barwick. Both accounts agree that Kerr then stated that they would both have to live with this, to which Whitlam replied, "You certainly will." The dismissal concluded with Kerr wishing Whitlam luck in the election, and offering his hand, which the former Prime Minister took.^[75][76]

After Whitlam left, Kerr called in Fraser, informed him of the dismissal, and asked if he would form a caretaker government, to which Fraser agreed. Fraser later stated that his overwhelming sensation at the news was relief.^[72] Fraser left to return to Parliament House, where he conferred with Coalition leaders, while Kerr joined the luncheon party that had been waiting for him, apologising to his guests and offering the excuse that he had been busy dismissing the Government.^[77]

Parliamentary strategy

Whitlam returned to the Prime Minister's residence, The Lodge, where he had lunch. As his aides arrived, he informed them of his sacking. Whitlam drafted a resolution for the House, expressing confidence in his Government. No ALP Senate leaders were at The Lodge, nor did Whitlam and his party contact any when they drove back to Parliament House, confining their strategy to the House of Representatives.^[78]

Prior to Whitlam's dismissal, the Labor leadership decided to introduce a motion that the Senate pass the appropriation bills. With ALP senators unaware of Whitlam's sacking, that plan went ahead. Senator Doug McClelland, manager of the ALP Government's business in the Senate, informed Coalition Senate leader Reg Withers of Labor's intent at about 1.30. Withers then attended a leadership meeting and learned of Fraser's appointment; he assured the new Prime Minister he could secure supply. When the Senate convened, the ALP Senate leader, Ken Wriedt, made the motion. Even as Wriedt did so, he was told that the government had been sacked, which he initially refused to believe. Authoritative word did not reach Wriedt until 2.15 pm, by which time it was too late to withdraw the motion and instead obstruct his party's appropriation bill to hinder Fraser. At 2.24 pm, Labor's appropriation bills passed the Senate, fulfilling Fraser's first promise of providing supply.^[79]

In the House, desultory debate on Fraser's censure motion ended with it being amended by the ALP majority into a condemnation of Fraser and passed on a party line vote. By 2.34 pm, when Fraser rose and announced that he had been commissioned as Prime Minister, word of the dismissal had spread through the House. Fraser announced his intent to advise a double dissolution, and moved that the House adjourn. His motion was defeated. Fraser's new government suffered repeated defeats in the House, which passed a motion of no confidence in him, and asked the Speaker, Gordon Scholes, to urge the Governor-General to recommission Whitlam. Scholes, attempting to communicate this to the Governor General, was initially told that an appointment might not be possible that day, but after stating that he would reconvene the House and tell them of the refusal, was given an appointment with Kerr for 4.45 pm.^[80]

Dissolution

Protest in George Street, Sydney, outside the Sydney Town Hall, about 6.45 pm 11 November 1975 following news of the dismissal.

With the appropriation bills approved by both Houses, they were sent over to Yarralumla where Kerr gave them Royal Assent. With supply assured, he then received Fraser, who advised him that 21 bills (including the electoral redistribution bills) which had been introduced since the last election fulfilled the double dissolution provisions of Section 57. Fraser asked that both Houses be dissolved for an election on 13 December. Kerr signed the proclamation dissolving Parliament, and sent his Official Secretary, David Smith, to proclaim the dissolution from the front steps of Parliament House.^[81]

At 4.45, Kerr received Scholes, and informed him of the dissolution. Kerr wrote that "nothing else of relevance" took place between the two men,^[82] but by Scholes's account, he accused Kerr of bad faith for making an appointment to receive the Speaker, and then not waiting to hear from him before dissolving Parliament.^[83] Whitlam later stated that it would have been wiser for Scholes to take the appropriation bills with him, rather than having them sent ahead.^[80]

Even as Scholes and Kerr spoke, Smith reached Parliament House. The dismissal was by then publicly known, and an angry crowd of ALP supporters had gathered, filling the steps and spilling over both into the roadway and into Parliament House itself.^[84] Many of the demonstrators were ALP staffers; others were from the Australian National University.^[85] Smith was forced to enter Parliament House through a side door and make his way to the steps from the inside. He read the proclamation, though the boos of the crowd drowned him out, and concluded with the traditional "God save the Queen". Former Prime Minister Whitlam, who had been standing behind Smith, then addressed the crowd:^[86]

Well may we say "God save the Queen", because nothing will save the Governor-General! The Proclamation which you have just heard read by the Governor-General's Official Secretary was countersigned Malcolm Fraser, who will undoubtedly go down in Australian history from Remembrance Day 1975 as Kerr's cur. They won't silence the outskirts of Parliament House, even if the inside has been silenced for a few weeks ... Maintain your rage and enthusiasm for the campaign for the election now to be held and until polling day.^[87][88]

Aftermath

Campaign

ALP policy launch before a huge crowd in the Sydney Domain on 24 November 1975

The news that Whitlam had been dismissed spread across Australia during the afternoon, triggering immediate protest demonstrations. On 12 November, Scholes wrote to the Queen, asking her to restore Whitlam as Prime Minister. The reply from the Queen's Private Secretary, Sir Martin Charteris, dated 17 November 1975, stated:

As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.^[89]

On 12 November 1975, the First Fraser Ministry was sworn in by Kerr. By some accounts, Kerr sought reassurance at that meeting that the Coalition senators would not have given in before supply ran out, "The Senate would never have caved in, would it?" According to those accounts, Senator Margaret Guilfoyle laughed and said to a colleague, "That's all he knows."^[90] Guilfoyle later stated that, if she did make such a remark, it was not meant to imply that the Coalition senators would have broken.^[91] However, Kelly lists four Coalition senators who stated, in subsequent years, that they would have crossed the floor and voted for the appropriation bills.^[91]

Labor believed it had a chance of winning the election, and that the dismissal would be an electoral asset for them.^[92] However, some Labor strategists believed the party was heading for a disaster, with few economic accomplishments to point to and an electorate whose emotions would have cooled before polling day.^[93] Nonetheless, Whitlam, who began campaigning almost immediately after the dismissal, was met with huge crowds wherever he went; 30,000 people overspilled the Sydney Domain for the official campaign launch on 24 November.^[93] That evening, Whitlam made a major speech at Festival Hall in Melbourne before 7,500 people and a national TV audience, calling 11 November "Fraser's day of shame—a day that will live in infamy".^[94]

Polls were released at the end of the first week of campaigning, and showed a nine-point swing against Labor. Whitlam's campaign did not believe it at first, but additional polling made it clear: the electorate was turning against the ALP. The Coalition attacked Labor for the economic conditions, and released television commercials "The Three Dark Years" showing images from the Whitlam government scandals. The ALP campaign, which had concentrated on the issue of Whitlam's dismissal, did not begin to address the economy until its final days. By that time Fraser, confident of victory, was content to sit back, avoid specifics and make no mistakes.^[95] There was little violence in the campaign, but three letter bombs were placed in the post; one wounded two people in Bjelke-Petersen's office, while the other two, addressed to Kerr and Fraser, were intercepted and defused.^[96]

During the campaign, the Kerrs purchased a Sydney apartment, as Sir John was prepared to resign in the event that the ALP triumphed.^[97] In the 13 December election, the Coalition won a record victory, with 91 seats in the House of Representatives to the ALP's 36 and a 35–27 majority in the expanded Senate.^[98]

Royal involvement

In 2015, political historian Jenny Hocking revealed an exchange between Kerr and Prince Charles, who in 1975 was being mooted as a future Governor-General. In Kerr's private papers from September 1975, a month before the dismissal, Kerr had informed Prince Charles that he was considering dismissing Whitlam, and was concerned that his commission might be revoked by Whitlam to prevent it. According to Kerr, Charles had responded: "But surely, Sir John, the Queen should not have to accept advice that you should be recalled at the very time when you were considering having to dismiss the government". This information was also shared with Buckingham Palace because the Queen's Private Secretary, Sir Martin Charteris, wrote to Kerr that, should this "contingency" arise, the Queen would try to delay things for as long as possible.^[99]

It has been suggested that the consultation between Kerr, Charteris and Charles was maintained to ensure that the Queen and the British Parliament were not part of the discussion.^{[100][101][102]} Assistant Private Secretary to the Queen in 1975, Sir William Heseltine, who along with Charteris informed her of the dismissal, has maintained that it came as a surprise to all three of them; that he considered Kerr's actions imprudent; and that he believed that this opinion was shared by Charteris. A memorandum by Sir Paul Hasluck of his conversation with Charteris supports this suggestion, and that disillusionment with Kerr's character led the Palace to apply pressure for his resignation. The Queen's opinion is unknown, but Heseltine has stated: "I think she is an old and wily bird about her own views ... to the extent that I could divine what she felt, I think she felt the same ... I'm reasonably confident myself that she thought it could have been handled better."^[103]

After the dismissal Prince Charles wrote a letter to Kerr conveying his moral support. He urged Kerr "not to lose heart" in the face of domestic hostility.^[104]

In October 2016, historian Hocking initiated a legal action against the National Archives of Australia, asking for Kerr's correspondence with the Palace to be reclassified from "personal" to "official" and then released since the 30-year time limit applying to official documents has passed.^{[105][106][107]} The case opened in the Federal Court of Australia on 31 July 2017, Hocking being represented by Gough's son Tony Whitlam, QC.^[108]

In October 2017, in a new edition of her book The Dismissal Dossier, Hocking revealed evidence of a meeting in Canberra, a month before the Dismissal, between Kerr, the British high commissioner and the permanent under-secretary of Britain's Foreign and Commonwealth Office, who reported to London that Kerr "could be relied upon" to protect the Queen's position. She claims that this demonstrates collusion between Kerr and the British government, of which the Queen would have been aware.^[109][110] In response, a former senior official in the government of the Australian territory that in September 1975 would become independent as Papua New Guinea recalled that, during the independence celebrations (also attended by Gough Whitlam and Prince Charles), Kerr had discussed a Governor-General's power to dismiss a prime minister "at great length" with Sir John Guise, who was about to become the first Governor-General of Papua New Guinea.^[111]

In March 2018, the Federal Court upheld the decision by the National Archives of Australia.^{[112][113][114]} The issue before the Court was procedural: whether the National Archives had made its decision with procedural propriety; public interest concerning disclosure was acknowledged, but was held not to have been relevant. The Court found (to quote its summary): that the Archives had been correct that "private and personal correspondence between Sir John and The Queen (or Her Majesty's Private Secretary) is sui generis and traditionally has been regarded as the personal property of the correspondents"; that "in providing periodic briefings to The Queen, Sir John Kerr was not exercising the executive power of the Commonwealth under s 61 of the Constitution. The Governor-General performs a wide range of functions, not all of which are performed on the basis of advice from the Prime Minister or the Executive Council."; that the Archives' understanding of its obligations "conforms with the view taken in the United Kingdom"; and that such records are not (as had been claimed) "the property of the official establishment of the Governor-General". The decision is being appealed to the Full Court of the Federal Court.^[115]

Alleged CIA involvement

During the crisis, Whitlam had alleged that Country Party leader Anthony had close links to the US Central Intelligence Agency (CIA).^[116] Subsequently, it was alleged that Kerr acted on behalf of the United States government in procuring Whitlam's dismissal. The most common allegation is that the CIA influenced Kerr's decision to dismiss Whitlam.^[117] In 1966 Kerr had joined the Association for Cultural Freedom, a conservative group that was later revealed to have received CIA funding. Christopher Boyce, who was convicted for spying for the Soviet Union while an employee for a CIA contractor, claimed that the CIA wanted Whitlam removed from office because he threatened to close US military bases in Australia, including Pine Gap. Boyce said that Kerr was described by the CIA as "our man Kerr".^[118] According to Jonathan Kwitny of the Wall Street Journal, the CIA "paid for Kerr's travel, built his prestige ... Kerr continued to go to the CIA for money". In 1974, the White House sent as ambassador to Australia Marshall Green, who was known as "the coupmaster" for his central role in the 1965 coup against Indonesian President Sukarno.^[119]

Whitlam later wrote that Kerr did not need any encouragement from the CIA.^[120] However, he also said that in 1977 United States Deputy Secretary of State Warren Christopher made a special trip to Sydney to meet with him and told him, on behalf of US President Jimmy Carter, of his willingness to work with whatever government Australians elected, and that the US would never again interfere with Australia's democratic processes.^[121]

Former ASIO chief Sir Edward Woodward has dismissed the notion of CIA involvement,^[122] as has journalist Paul Kelly.^[123][124] Justice Robert Hope, who had twice been royal commissioner investigating the Australian intelligence agencies, including ASIO, stated in 1998 that he had attempted to locate and interview a witness who had allegedly given in-camera evidence to the Church Committee about CIA involvement in the dismissal. He was unable to find either the witness or testimony, despite having the support of "a senior [US] senator".^[125] In his top secret supplementary report, however, Hope dismissed the idea of a CIA involvement in Australian politics.^[126]

Legacy

In his survey of the events of the crisis, November 1975, Kelly places blame on Fraser for initiating the crisis^[127] and on Whitlam for using the crisis to try to break Fraser and the Senate.^[128] However, he places the most blame on Kerr, for failing to be candid with Whitlam about his intentions, and for refusing to offer a clear, final warning before dismissing him. According to Kelly,

[Kerr] should have unflinchingly and courageously met his responsibility to the Crown and to the Constitution. He should have spoken frankly with his Prime Minister from the start. He should have warned wherever and whenever appropriate. He should have realised that, whatever his fears, there was no justification for any other behaviour.^[129]

Former Governor-General Sir Paul Hasluck believed that the fundamental reason for the crisis was the lack of trust and confidence between Whitlam and Kerr, and that the proper role of the Governor-General had been to provide counsel, advice and warning.^[130]

The dismissal has been considered the greatest political and constitutional crisis in Australia's history.^[131] In 1977, the Fraser Government proposed four constitutional amendments via referendum, three of which passed—the last time that the Australian Constitution has been amended. One of the amendments requires that a senator appointed to fill a casual vacancy be from the same party as the former senator.^[6] The Senate retains the power to block supply; the Governor-General retains the power to dismiss ministers (including the Prime Minister).^[6] However, these powers have not since been used to force a government from office.

In the wake of the dismissal, the ALP turned its anger on Kerr. Demonstrations marked his appearances, while the remaining ALP parliamentarians boycotted his opening of the new Parliament. Whitlam, now Leader of the Opposition, refused all invitations to events at Yarralumla, which the Kerrs continued to extend until his refusal of an invitation during the Queen's 1977 visit caused them to feel that no further efforts need be made.^[132] Whitlam never spoke with Kerr again.^[133] Even ALP parliamentarians who had been friends of Kerr broke off their relationships, feeling Kerr had betrayed the party and had ambushed Whitlam. Lady Anne Kerr stated that she and her husband confronted a "new irrational scene swarming with instant enemies".^[134]

Whitlam resigned as ALP leader after the party suffered its second successive electoral defeat in 1977.^[135] Fraser served over seven years as Prime Minister, and left the Liberal leadership after the Coalition was defeated in the March 1983 election.^[136]

Whitlam repeatedly castigated Kerr for his role in the dismissal. When Kerr announced his resignation as Governor-General on 14 July 1977, Whitlam commented: "How fitting that the last of the Bourbons should bow out on Bastille Day".^[137] In 1991, Whitlam stated that no future Governor-General was likely to act as Kerr did lest he also became the subject of "contempt and isolation".^[138] In 1997 he said that the letter of dismissal "had the shortcomings of being ex tempore, ex parte, ad hoc and sub rosa."^[139] In 2005, Whitlam called Kerr "a contemptible person".^[131] On the other hand, Country Party leader and deputy prime minister Doug Anthony said: "I can't forgive Gough for crucifying him".^[134] Sir Garfield Barwick was not spared Whitlam's invective; the former Prime Minister described him as "evil".^[140]

However, Whitlam and Fraser put aside their differences; Whitlam wrote in 1997 that Fraser "did not set out to deceive me".^[141] The two campaigned together in support of the 1999 referendum that would have made Australia a republic.^[142] According to Whitlam speechwriter Graham Freudenberg, "the residual rage over the conduct of the Queen's representative found a constructive outlet in the movement for the Australian Republic".^[143]

After Kerr resigned as Governor-General, he still sought a government position, reasoning that it had been his intent to remain for ten years as Governor-General. However, Fraser's attempt to appoint Kerr as ambassador to UNESCO (a position later held by Whitlam) provoked such public outcry that the nomination was withdrawn. The Kerrs spent the next several years living in Europe,^[144] and when he died in Australia in 1991, his death was not announced until after he was buried.^[145]

Freudenberg summed up Kerr's fate after the dismissal:

The beneficiaries of the Dismissal scarcely bothered to defend Kerr and in the end abandoned him. In the personal sense, Sir John Kerr himself became the real victim of the Dismissal, and history has accorded a brutal if poignant truth to Whitlam's declaration on the steps of Parliament House on 11 November 1975: "Well may we say 'God Save the Queen' – because nothing will save the Governor-General."^[146]

See also

• Denmark's Easter Crisis of 1920
  


• 
  King–Byng Affair, a similar Canadian constitutional crisis in 1926


• 
  Constitutional Coup in Pakistan in 1953/54


• 2008–09 Canadian parliamentary dispute


• 2011–12 Papua New Guinean constitutional crisis


• 
  Tuvaluan constitutional crisis of 2013


• 2018 Sri Lankan constitutional crisis

Notes

Bibliography

Further reading

• 
  Markwell, Donald (2016). Constitutional Conventions and the Headship of State: Australian Experience. Connor Court. ISBN 9781925501155.
  


• 
  Hocking, Jenny (2012), Gough Whitlam: His Time, The Miegunyah Press, ISBN 978-0-522-85793-1
  


• 
  Smith, Sir David (2005), The Head of State, Macleay Press, ISBN 978-1-876492-15-1
  

External links

• 
  Statement from John Kerr (dated 11 November 1975) explaining his decisions.


• 
  Australian Biography – Malcolm Fraser, part 6 and Australian Biography – Malcolm Fraser, part 7, a 1994 interview in which Fraser gives his perspective on his actions.


• Official site of The Whitlam Institute – contains many news reports and speeches from the time under "Whitlam Government" tab.


• The Malcolm Fraser Collection at the University of Melbourne


• 
  whitlamdismissal.com – privately maintained web site with background, source documents and audio/video clips.


• 
  Video clip of Norman Gunston at 'The Dismissal' on YouTube
  


• Listen to an excerpt of Gough Whitlam's 'Kerr's Cur' speech on australianscreen online