November is here and with it comes the momentous 50th anniversary of the Dismissal of the Whitlam Government by “Sir” John Kerr, the tragic, shickered, panto Governor-General of Australia.
To immortalise the occasion, the Museum of Australian Democracy at Old Parliament House, Canberra, is curating a tremendous jamboree on November 11.
Apart from cocktails and a grand feast, the main exercise comprises speeches, interviews and panel discussions. People who were safely assumed to be dead, or barely functioning, have been exhumed for the Armistice Day revels.
Kimbo Williams from the ABC will frame the discussion as a political crisis, not a constitutional one; journalist Niki Savva has a prerecorded conversation with Paul Keating from the Paris end of Potts Point; Bazza Cassidy (chairman of the board of the Museum of Australian Democracy) goes head-to-head with the rancid rodent, Little Winston Howard; Jim Killen’s daughter is on hand to discuss her self-important father’s friendship with Gough (but presumably not his affair with Dame Margaret Guilfoyle); and Troy Boy Bramson has a conversation with comedian Garry McDonald.
Yet, it’s the discussions with panels of witnesses and scholars that are expected to bring to centre stage the legality of the Dismissal and the forbidding figures who engineered it.
“The moment Australian politics changed forever” will be analysed with historian Jenny Hocking, Barry Jones, Father Paul Kelly and Red Kezza O’Brien.
We’ll also get behind the scenes with the political advisers; aide-de-camps who had lunch with Kerr on Nov. 11; what happened in the Senate while Gough was having a steak at The Lodge; and could it all happen again in a session chaired by Michael (Lion’s Den) Lee.
A matter of opinion
The Dismissal threw into contention a whole pile of conflicting legal opinions about the Constitution. Lurking behind the curtain was the saintly figure of Queen Elizabeth II, whose Svengali, Sir Martin Charteris (later Baron Charteris of Amisfield), was at a great distance providing additional fortification for Kerr to act (apart from the GG’s gargantuan intake of mind-altering tinctures).
Your correspondent, then a Press Gallery reporter and flaneur with the Financial Review, got some juicy breaks that kept the story rolling.
Bob Ellicott, who was a former Solicitor General and Malcolm Fraser’s shadow attorney general, had concocted a press statement that said Kerr was “legally obliged” to sack the government if it could not get its supply bills through the Senate.
Ellicott’s cousin was Chief Justice Sir Garfield Barwick, a former Liberal minister from the Menzies era (External Affairs and Attorney General).
Having already made up his mind that he was going to dismiss the Whitlam government, even though supply still had three weeks to run and the senate had never actually rejected the Appropriation Bills, Kerr asked Barwick whether his proposed action was constitutionally kosher.
The advice was dated November 10, 1975, but at this stage it remained under wraps.
Needless to say, the conservative CJ could not fault what Kerr had in mind and the next day the government, which commanded a majority in the House of Representatives and was at least two-and-a-half years away from the requirement for an election, was sacked by Kerr.
Here’s his flowery explanation, where he used Ellicott’s mistaken notion that he had a “duty” to remove the government.
A few days later your correspondent was called into the office of the sacked Attorney General, Kep Enderby, who helpfully supplied a copy of another legal advice, prepared by the then Solicitor General Maurice Byers, dated November 4, 1975.
Byers blew Barwick, Ellicott, and Kerr out of the water and the Financial Review hurried into print on November 17, 1975 with the juicy details. Here are his main points:
• Deferral of supply does not compel Kerr to dissolve the House.
• It is undesirable for the GG to intervene in a struggle that must be resolved in parliament.
• The GG should act on the advice of ministers with a majority in the Representatives.
• There is no duty to remove the government in the event that the Senate defers or rejects the Supply Bills.
• The assumptions that underlie Ellicott’s statement “present dangers to the orderly working of government”.
• There are established constitutional provisions to resolve disputes and legislative blockages between the House and the Senate, without the need to sack the government.
• Ellicott was “clearly wrong”.
Here’s Byers’ opinion in full – with complementary scribbles.
The effect of the scoop was to flush out Barwick’s brief, but fortifying, advice that he could find nothing wrong with sacking the government in these circumstances, if that’s what the Viceroy would like to do.
Desperate to keep the wolves at bay, Kerr promptly released the CJ’s advice.
Seven months later the ructions were still bubbling furiously and Barwick was itching to justify himself, and patch up the damage he had done to the High Court.
He agreed to turn up at The National Press Club in Canberra on June 10, 1976, make a speech about amendments to the Judiciary Act (Zzzz) and take questions from impertinent reptiles – which were entirely directed to his role in the Dismissal.
Among the lather of self-justification, he said:
“It was said publicly that some of my brother judges had expressed their disapproval. That was untrue. None have, with the exception of Justice Murphy. Nor did I seek their approval or support in any way.”
Another chapter unfolded on the footpath outside the Press Club. Here the Chief Justice engaged with three of us from the Financial Review – Tony Hill, who went on to work for Bill Hayden and play the piano at Gov House; Judith Hoare; and moi.
We couldn’t shut him up for nearly an hour, while his driver kept the engine running and Press Club president Max Hawkins held the car door open, making sweeping gestures for the old coot to slide in and be away.
It quickly became clear that Barwick wasn’t so much interested in his flighty constitutional justification. He was, at heart, intensely critical of Whitlam and his strategy.
We learned the real reason for his justification of the Dismissal. When asked whether Kerr should have warned Whitlam about his proposed action, Barwick replied:
“No. Of course, Whitlam threatened him, you know … Whitlam should never have put Kerr in that position. He was not entitled to have tested the nerve of the Senate. On the day the Senate first deferred consideration of the Budget, Whitlam should have either called an election or resigned.”
That a government should not be allowed to test the will of the Senate is a notion so bizarre that the three of us were left slack-jawed.
Barwick’s conception of the role of the GG was as a political fixer. To get rid of a Prime Minister who still had supply and whose opponents in the Senate, after soem theatrical swagger, were on the cusp of passing the Supply Bills.
I got back to the office to find the phone ringing off the hook. It was Justice Murphy from the High Court asking me to drop around to his place at Arthur Circle, Forrest.
Lionel was sitting on a couch in his suit pants and a white Bond’s singlet. He was ropable – Barwick had dragged his name into it, so he was anxious for readers of the Financial Review to see what he told the CJ after the sacking.
The presses cranked into action.
Lionel v Garfield
November 14, 1975
Dear Garfield,
I have received your memorandum dated 12th November, 1975 and the copy of your letter dated 10th November to the Governor-General advising him of the dismissal of the Prime Minister who had the confidence of the House of Representatives, his replacement by the Leader of the Opposition who did not and the calling of an immediate election.
As your memorandum might now, or in the future, be taken as associating the court with your advice to the Governor-General, I wish to make my attitude quite clear.
In my view, a Chief Justice, or any other Justice of this court should not act as a constitutional advisor to the Governor-General on a subject such as this which would always be extremely controversial and involved the whole of the country in an extreme degree of political partisanship.
I am not discussing the question of a Chief Justice giving advice to a Governor-General, in any circumstances, only on extremely political events, and particularly where he knows that the advice he is giving too the Governor-General is in direct opposition to that being given to the Governor-General by the Prime Minister.
The advice itself was, in my opinion, wrong and by its disregard of options open to the Governor-General seriously prejudicial to one side in the political controversy.
I disassociate myself completely from your action in advising the Governor-General and from the advice you gave.
Lionel Murphy
Barwick’s reply
Dear Lionel,
I received your note this morning. You have entirely misconceived my purpose in informing the members of the court of my actions on Monday, November 10. I did so merely out of courtesy and not in any sense to seek support or acquiescence. I need neither. I do not regard any justice as having confirmed or approved my action.
I note your remarks. I fundamentally disagree with them, both as to any legal opinion they involve and as to any matter of the propriety of my conduct. I see no need to discuss with you either question.
Yours sincerely,
Garfield Barwick
The Dear Lionel letter should go into the National Archives as an epitome of a judicial “fuck you”.
- Originally published at Spilled Ink