The Dismissal revisited

Thirty seven years on, the events of November 11, 1975, still have a deep political resonance for many Australians.

For those who were there at the time, the Dismissal was a pivotal event, up there with the Neil Armstrong's moon walk, the assassinations of the Kennedy brothers and Martin Luther King and the tied test of 1961.

For nearly half of the present population not even born, it remains a strange and puzzling moment in political history: how did it happen, and, more importantly, could it happen again?

So it is hardly surprising that the revelations in Jenny Hocking's new book (Gough Whitlam: His Time) of the involvement of the third man in the conspiracy - High Court Judge and later Chief Justice Sir Anthony Mason - reignited a new wave of controversy, much of which has revived old animosities and provoked new ones.

It is now generally (although by no means universally) accepted that the viceroy had, and has, the power to dismiss an elected government. This may or may not have been the intention of the writers of our constitution, who left the notion and extent of the Governor-General's reserve powers almost completely undefined. But it happened, and therefore it can happen again. The question is not one of law, but of judgement and morals: was Sir John Kerr's decision the right one in the circumstances? And to answer it, you need to know the circumstances and background. And I reckon I do: I was right there in the thick of it.

Kerr sacked Gough Whitlam's government because the opposition controlled senate was refusing to vote on the supply bills. It is important to note that this was not a denial of supply, simply a blockage. And it only came about because two state premiers, Tom Lewis in New South Wales and then crucially Sir Joh Bjelke Petersen in Queensland, had committed unheard of breaches of convention by appointing non-Labor replacements to take the seats of deceased Labor senators. Thus the politics which allowed Malcolm Fraser to bring the deadlock about were irrevocably tainted from the start, a fact which Kerr should have taken into consideration.

The trigger Fraser used to force the situation was Whitlam's sacking of a second senior minister, Rex Connor, for the high crime of having misled the parliament; Jim Cairns had already gone. Fraser described this as "an extraordinary and reprehensible circumstance". Extraordinary certainly, but reprehensible? Looked at another way Whitlam was enforcing the highest parliamentary standards, when it would have been both simpler and more expedient to brazen it out.

Fraser's decision was itself another monumental breach of convention, a fact which caused considerable angst within sections of his own party, including a small but vital number of the senators needed to implement his edict. This became crucial as time went on and the crisis deepened. Kerr later claimed that his hand was forced by the timetable: to get a general election before Christmas he had to act when he did. But the feeling around parliament house as the fateful Remembrance Day drew near was that some of those senators were about to crack. This has since been denied, to my mind unconvincingly, but there is no doubt it was the dominant belief on both sides of politics at the time. Kerr, at the very least, was guilty of premature ejection.

As we now know, he was encouraged by the Chief Justice, Sir Garfield Barwick, who breached the very important doctrine of the separation of powers by taking a partisan role. Whitlam had already refused Kerr's request to seek Barwick's opinion; Whitlam's view was that the Queen's representative must rely on the advice of his ministers, the essence of the Westminster tradition of constitutional rule. This immediately opened another door for Kerr: he could have summoned Fraser and told him that he was bound by Whitlam's advice, so the only solution was for Fraser to back down.

But Kerr as we now know, ignored Whitlam's instruction and went not only to Barwick, a sworn political and personal enemy to Whitlam, but also to Mason, then believed to be apolitical. Mason also breached convention by offering Kerr advice and even preparing a document of dismissal, which Kerr ended up not using; but he says he took a more neutral stance by telling Kerr he should at least warn Whitlam of his thinking and give him a last chance to call an election himself, as prime minister. If Whitlam had done so, he would not only have avoided the obloquy of dismissal but would have regained the high ground: the polls showed that a majority of voters blamed Fraser for bringing on the crisis and would have given Whitlam credit for resolving it. As it was, they knew Whitlam must have done something terrible, even if they could not say what it was. Otherwise, why would Kerr have sacked him?

But Kerr ignored Mason's advice and ambushed Whitlam with his famous king hit. In retrospect, it is clear that what really mattered to him was not ending the standoff, but asserting his dominance over the Prime Minister who had appointed him to the job. Whitlam, stunned, returned to the Lodge and ate a large steak. By the time he got back to parliament house and started organising, supply had been passed and the election called. It was, Fraser declared, all over.

But it wasn't; not quite. Kerr had not got around to proroguing parliament so the house was still sitting. It quickly passed a motion of no-confidence in Fraser and ordered the Speaker, Gordon Scholes, to tell Kerr to recommission Whitlam as Prime Minister. But Kerr, on Mason's advice, refused to receive to the Speaker and shut the parliament down.

Of all the breaches of convention, this was the gravest and most profound. In the Australian system parliament is supreme; while it is sitting it is master of its own destiny. Kerr's summary rejection of its resolution was unprecedented and unjustifiable. It was effectively a reassertion of the divine right of things, a throwback to a tyranny which ended with the execution of King Charles I. But in the upheavals of the times, it went unremarked and uncorrected.

There is much about the Dismissal that remains unfinished business, which is why it is still memorable and still relevant. Because it could happen again.

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