John Kerr: Encyclopedia II - John Kerr - The Dismissal

John Kerr - The Dismissal

Kerr had another meeting with Fraser (with Whitlam's approval) on 6 November. At this meeting Fraser increased the pressure on Kerr, advising him that the Opposition would not back down and would not accept any compromise, and warning him that if he did not take action against Whitlam then the Opposition would begin to make direct public criticism of him, for having "failed in his duty." Fraser urged Kerr to bring about an election before the end of 1975. The provisions of the Electoral Act meant that the last date on which a 1975 election could be announced was 11 November. Kerr therefore had five days to make up his mind. Fraser privately told journalists after this meeting that he was certain that Kerr would dismiss Whitlam.

On 9 November Kerr consulted the Chief Justice of the High Court of Australia, Sir Garfield Barwick. Kerr asked Garfield to advise him on whether he had the constitutional power to dismiss Whitlam, and Barwick advised him, in writing, that he did. He also advised him that another High Court Justice, Sir Anthony Mason, concurred in this view. Since the advice Barwick gave Kerr became central to subsequent events, it is important to note that this advice was entirely informal and personal. The High Court does not issue advisory opinions, and in any case Kerr did not consult the court as a court, only the Chief Justice. Barwick could not issue advice in his capacity as Chief Justice, only as an individual. In any case, Barwick's impartiality in this instance was open to question, as he was a former Attorney-General in a Liberal Party government. Whitlam later claimed he specifically prohibited Kerr from seeking advice from Barwick; a claim that Kerr denied.

Kerr appears to have made up his mind on 9 November to dismiss Whitlam. He did not advise Whitlam that this was his intention, indeed actively concealed his intention from Whitlam and his ministers. His justification for this was that he feared that Whitlam would advise Queen Elizabeth II (Australia's head of state) to terminate Kerr's commission as Governor-General if he gave any warning of his intention. In acting in this way, Kerr ignored the most recent precedent, that of Sir Philip Game, the Governor of New South Wales who in 1932 dismissed Jack Lang's government. Game warned Lang in advance that if he, Lang, did not take certain actions, then he, Game, would dismiss him. This allowed Lang to seek Game's dismissal if he dared, which he did not.

On the morning of Tuesday 11 November, Whitlam phoned Kerr and arranged to see him in the afternoon, after the Remembrance Day ceremonies. He intended to advise Kerr to call an immediate half-Senate election as a means of breaking the deadlock. After this conversation Kerr phoned Fraser and (according to Fraser's recollection) asked him whether, if he was commissioned as Prime Minister, he would (a) pass the budget bills, (b) call an immediate double dissolution election for both houses of Parliament, (c) make no appointments, initiate no new policies and conduct no inquiries into the previous government, before such elections. Fraser answered yes to all these questions.

(In his memoirs Kerr denied making this phone call to Fraser, but Fraser has been adamant in all subsequent accounts that he did. Since Fraser has no reason to lie about this, it seems probable that the conversation did take place. This means that Fraser knew that Kerr intended to dismiss Whitlam, but Whitlam did not. Kerr and Fraser had in effect entered into a conspiracy to deceive the Prime Minister.)

Whitlam arrived at Government House at 1pm. Fraser had already arrived and was shown into another room. Whitlam and Kerr met alone in Kerr's study, and each has given different accounts of what was said. This seems to be the most likely scenario: Whitlam began to tender his advice to Kerr that there be a half-Senate election. Kerr interrupted him and asked him directly whether he was prepared to advise an immediate House of Representatives election. When Whitlam answered "No," Kerr advised him that he was terminating his commission, and handed him a letter to that effect. From that moment Whitlam was no longer Prime Minister, and could take no action to frustrate Kerr's intention to commission Fraser and call an immediate double dissolution.

When Whitlam had left, Kerr summoned Fraser and again asked him the questions he had (according to Fraser) put to him on the phone that morning. When Fraser again answered affirmatively, Kerr then commissioned him as Prime Minister, and Fraser then immediately advised Kerr to dissolve the Parliament and call a double dissolution election for 13 December, which Kerr then did. This rendered void Whitlam's attempt that afternoon to overturn his dismissal by having the House of Representatives pass a motion of no confidence in Fraser's government.

Kerr later put forward five propositions to justify his actions:

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

Adapted from the Wikipedia article "The Dismissal", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki