Letter from Sir John Kerr dated 20th November 1975

LETTER FROM SIR JOHN KERR DATED 20 NOVEMBER 1975

In this letter Sir John seeks to further explain his actions and those of the Prime Minister and Leader of the Opposition. He says “As you know, when the Senate launched upon its tactic of deferring supply I became concerned that the two parties were on a collision course which, if maintained could cause enormous chaos and even political disaster. The two leaders were both stubborn and proud men. This feeling of mine became accentuated day by day especially as Mr Whitlam, in effect, challenged Mr Fraser's manhood and said something along the lines that he would in the end not have "the guts" to deny supply in fact. As you know, and I will not go into the details again, I did my best to try to arrange some kind of compromise.”

Sir John mentions that “At all times during the crisis he [Mr Whitlam] stated in the clearest terms that he intended to govern without supply and would never recommend a dissolution of the House or a double dissolution whilst supply was denied. He said both publicly and privately that it was his intention to break the power of the Senate over money bills forever.

“There could be no doubt, and I had no doubt, of the absolute irreversibility of this decision. Mr Whitlam was engaged in a crusade based upon a single minded determination to destroy the power of the Senate on money bills. No one talking to him privately at that time could come to any other conclusion. The matter was not discussable. He was prepared and said he was prepared to take the country through makeshift banking arrangements, if he could achieve this, over Christmas and on into the new year - governing without supply.”

It was therefore clear that the Governor-General had no option but to force an election so that the issue could be put to the people.

PERSONAL AND CONFIDENTIAL

Government House,
Canberra. 2600.

20 November 1975

My dear Private Secretary

There have been a few developments upon which I should report. I should also like to explain in a little detail psychological factors involved in what happened on November 11th.

As to the new developments, the former Attorney-General Mr Enderby, (I suppose it was he, or done with his approval) leaked to the Press a draft legal opinion which was meant when finalised to be a joint opinion by himself and the Solicitor-General.

I had asked the Prime Minister for such an opinion because I did not myself accept the view that although the reserve power existed, I should, as Mr Ellicott believed, as a matter of law and duty, exercise it when the Senate first denied supply. I therefore asked an opinion on whether I was compelled by law or legally obliged to act in the way Mr Ellicott suggested at an early stage in the political crisis.

It took some time for any response to occur to this request and it was not until 6th November that Mr Enderby, at my request, came to see me. He brought what he said was a draft of a joint opinion. It had been signed by the Solicitor-General but not by himself and the signature of the Solicitor-General had been crossed out to emphasise that it was only a draft.

The opinion conceded the existence of the reserve power of the Crown but said that because of the rarity of its exercise there was grave doubt whether it could still be said to exist for the purposes of what has been called a forced dissolution.

By the time of the critical weekend before November 11th, I still had no firm or final opinion from the law officers though I had come to the conclusion myself that the truth lay between the Ellicott and the Byers (the Solicitor-General) point of view. My understanding of the position was that I did not have to act as soon as supply was denied for the first time or at an early stage in the political crisis but that the reserve power, in respect of a forced dissolution, continued to exist and that I could and in certain circumstances should exercise it. As you know, I decided to do so if the two leaders failed to agree on the 11th November and I obtained Sir Garfield Barwick’s views on the 10th November.

After the Byers opinion was leaked, the Financial Review wrongly concluded that he had said that the reserve power of the Crown no longer existed. I was annoyed at the leaking of an opinion, which in any event was only a draft opinion, and which, if it could be regarded as a real opinion at all, was part of the private advice given to me by the Attorney-General.

I therefore sent for the new Attorney-General and asked him to bring the Solicitor-General and the Permanent Head of the Attorney-General's Department.

The Solicitor-General was very concerned about the publication of his draft opinion and in particular about the false impression that had been created that he had denied the existence of the reserve power of the Crown.

He has consequently, with my approval, written to the Press to make his position clear. In the process, of course, it became clear that his view was that there was grave doubt about its existence in the case of a forced dissolution. In these circumstances I discussed with Sir Garfield Barwick whether he had any objection to the publication of his opinion to me. He not only had no objection, but appeared to be quite anxious to have it published.

I have been under continual pressure from the Press to answer questions relating to the exercise of my discretion. One journalist wrote in yesterday a many-paged letter asking 20 questions, most of them political in character. Another journalist has acted in a somewhat similar fashion. I have also been challenged publicly to answer questions which, in my opinion, it would be most improper and unwise to answer. However, bearing in mind the distortion and lies that were being told about the factors operating in my mind, it seemed a permissible step, with the Chief Justice's approval, to publish his opinion, We both considered the effect of the publication on his Court but he had no doubt at all that he wanted it published.

The result has been to raise the constitutional issue again although it was by no means dead. But it has been given some new life. I enclose three clippings indicating the way in which the matter is being debated. One, the editorial page of today's "Age", 20th November, two a report in today's "Canberra Times" of an address given yesterday by Professor Geoffrey Sawer, and three a rather amusing article published in last Wednesday's "Bulletin" written by Mr Peter Samuel and describing what happened on November 11th as though it were a kind of western movie.

I feel in all the circumstances that I should make clear the psychology of the situation as it existed on November 11th.

As you know, when the Senate launched upon its tactic of deferring supply I became concerned that the two parties were on a collision course which, if maintained could cause enormous chaos and even political disaster.

The two leaders were both stubborn and proud men. This feeling of mine became accentuated day by day especially as Mr Whitlam, in effect, challenged Mr Fraser's manhood and said something along the lines that he would in the end not have "the guts" to deny supply in fact.

As you know, and I will not go into the details again, I did my best to try to arrange some kind of compromise.

The Senate denied supply for the third time during the week after the Melbourne Cup. Zero hour was getting closer and closer. It was known, and indeed Mr Whitlam told me himself, that if there were to be an election before Christmas the 13th December was the last practical date.

Keeping things going in this way was an example of brinkmanship on both sides. Mr Whitlam believed that the Senate would give in but its third denial of supply showed continuing determination.

I believe that apart from a high order of brinkmanship on other matters, Mr Whitlam made a fundamental mistake in believing, as he apparently did, that I would let him do exactly what he advised and let him govern without supply and without going to the people.

At all times during the crisis he stated in the clearest terms that he intended to govern without supply and would never recommend a dissolution of the House or a double dissolution whilst supply was denied. He said both publicly and privately that it was his intention to break the power of the Senate over money bills forever.

There could be no doubt, and I had no doubt, of the absolute irreversibility of this decision. Mr Whitlam was engaged in a crusade based upon a single minded determination to destroy the power of the Senate on money bills. No one talking to him privately at that time could come to any other conclusion. The matter was not discussable. He was prepared and said he was prepared to take the country through makeshift banking arrangements, if he could achieve this, over Christmas and on into the new year - governing without supply.

As to the gambit to get a kind of pseudo supply from the banks there was a meeting with the Banks at which no decision was made but I was told before my decision was made that at least some of the banks regarded the scheme as highly dubious legally as an attempt to avoid the constitutional requirement of parliamentary appropriation and most dubious on grounds of banking policy. I was later sent copies of legal opinions obtained by the Banks. My opinion at the time of the decision was that no real substitute for supply would be available through the Banks.

My own view was that he could not make even remotely satisfactory banking arrangements; that in any event, they would cover only part of the problem; and that the chaos and confusion would be enormous. Mr. Whitlam towards the end, as I have told you, whilst implacably maintaining his policy, said that there could only be one way in which an election could be obtained and that was by his dismissal - if I were willing "to do a Sir Philip Game". [Game was a former Governor of NSW (1930-1935) who sacked John Lang the premier] This was very revealing, because although I have no doubt he believed I would not dismiss him, he was taking into account the possibility that I might just conceivably exercise the reserve power. Being of the opinion that I would not be strong enough to do it, he was warning me of the likely consequence - execration - if I did. I made no comment.

I should say that in my last talk with Mr Fraser he told me that the last moment was arriving when the reserve power of the Crown could be exercised and that, with the greatest respect, he would be constrained to say publicly that if I did not exercise it, it would have been a grave blow to the powers of the Crown, which everyone of substance admitted to exist, but which if not used in the present crisis would be destroyed forever. This statement was not given by way of advice but really by way of warning and it, like Mr Whitlam's reference to Sir Philip Game, had an element of threat about it.

There is one other statement that Mr Whitlam has made to me during the crisis. As you know from earlier letters, on occasions, sometimes jocularly, some times less so, but on all occasions with what I considered to be underlying seriousness, he said that the crisis could end in a race to the Palace to see who could get there first. Of course, though I did not say this to him, only he had to go to the Palace. I could act, if necessary, directly myself under the Constitution. I am sure that he would have known this and the talk about a race to the Palace really constituted another threat.

I have referred in an earlier letter to the conversation with Mr Whitlam at the point of dismissal. The issue has arisen here as to whether I should have given him say twenty-four hours to consider whether, after being told of my intention to dismiss him, he would advise a dissolution of the House of Representatives or a double dissolution and go to the people himself. History will doubtless provide an answer to this question but I was in a position where, in my opinion, I simply could not risk the outcome for the sake of the Monarchy. If in the period of say twenty-four hours, during which he was considering his position, he advised The Queen in the strongest of terms that I should be immediately dismissed, the position would then have been that either I would in fact be trying to dismiss him whilst he was trying to dismiss me, an impossible position for The Queen, or someone totally inexperienced in the developments of the crisis up to that point, be it a new Governor-General or an Administrator who would have to be a State Governor, would be confronted by the same implacable Prime Minister. This assumes that there would be no alternative in the Crown's hands but to comply with the demand for instant dismissal. If the Crown delayed I would still be here with the same problem but impotent or with much more serious decisions to make.

It may be argued that Mr Whitlam conceivably could have gone back on his oft-repeated, unqualified statement of his intentions to break the power of the Senate and so on. As often happens in these historical moments the man with the discretion has to make up his mind. I have done so and taken some odium from the decision although there has been a remarkable amount of relief and support, in many quarters, for what I did.

I hope in this way that I have got the country into a position where, when things settle down, there will be an orthodox if bitter election campaign.

You will know by now that there have been a couple of letter bombs, doubtless produced by a madman, and I hope that this kind of un-Australian activity will not be repeated. I believe the Labor Party is trying to keep street violence and other forms of unsavoury demonstrations at low ebb.

I should say that, although elections are not fought in as tough a manner here as they are in America, the "big lie" is used. I have, of course, no idea whether any dirty attack will be made on me during the campaign, particularly towards the end. The dirty side of politics is one reason why I gave up long ago any desire to participate in a direct party way.

Attached is a cutting which has just arrived from our High Commissioner in New Zealand which indicates interest there in our constitutional crisis. The New Zealand Governor-General has sent me a very kind and supportive private letter.

After some doubt and much careful consideration I have decided to attach a copy of a letter I have received from Sir Robert Menzies marked "Personal for himself". I do this on the basis of confidentiality of the complete kind. I should not like even Sir Robert to know that I have sent it because I have not had an opportunity to clear it with him, though I know that he understands that I report fully and with complete frankness to The Queen. Doubtless you will hear through other channels of Sir Robert's views. I send the letter with due humility, because it may help you in your assessment of the situation here, and in some embarrassment about his unduly kind words about myself.

As I have said in my other letters I have attempted to act in what I believe to be the interest of the Monarchy and I trust Her Majesty understands my continued motives of loyalty and humble duty.

Yours sincerely,

SIGNED: J R KERR

Lieutenant Colonel the Right Honourable Sir Martin Charteris, K.C.B., K.C.V.O., O.B.E.,
Private Secretary to The Queen,
Buckingham Palace,
LONDON ENGLAND