Letter by Sir John Kerr

Letter from Sir John Kerr to Sir Martin Charteris dated 20 September 1975.

In this letter, Sir John mentions talks he has had with the Prime Minister, Gough Whitlam MP during a visit to Port Moresby to celebrate the independence of Papua New Guinea.

The question of whether the Senate has the constitutional power to deny supply and whether Sir John should give or refuse Assent to money bills denied by the Senate was raised in these talks with the Prime Minister. Sir John confesses in this letter to Sir Martin “You will note that in what I have written I have expressed no view about what I may do in various contingencies. I think it better to keep my mind and my options open so that if the worst happens I can decide at the last moment what to do. I am however thinking hard.”

Very relevant to false claims that the Prime Minister was taken unawares by the eventual decision of Sir John to dismiss him is “Another point of importance put to me by the Prime Minister in Port Moresby was that if I were, at the height of the crisis, contrary to his advice to decide to terminate his commission … We were of course, talking on quite friendly terms in all of this.” And “One point is that if neither can get supply and public servants etc. are not being paid it is said that only an election can resolve the point and if Mr Whitlam will not advise one I may have to find someone who will.”

PERSONAL AND CONFIDENTIAL

Government House,
Canberra. 2600.

20 September 1975.

My Dear Private Secretary

I am still away from home but am keeping up with the constitutional crisis as well as I can. The Prime Minister and I had a detailed and important talk in Port Moresby. In addition to the possible confrontation which I previously mentioned he and his ministers have let it be known publicly and he has told me privately that he has another tactic in mind. Section 53 of the Constitution dealing with the Senate's power to deal with money bills is as follows:-

"Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws."

This was written into the Constitution in 1901 at a time when the Parliament Act (U.K.) of 1911 had not been enacted. It has always been thought by lawyers to leave the Senate with power to reject money bills but there has been a convention that it should not - a convention always observed until now. In 1974 there was not a rejection but only a threat to reject and the Prime Minister took up the challenge and advised a double dissolution. Supply was then granted. The Prime Minister, in Port Moresby, told me that he was minded if the Senate rejected the Appropriation Bills, to present them to me nevertheless for assent with advice that the Senate has no legal power to reject them. He asked me what I would do if he were to take this course. I rather parried this by saying that if he did this there would be an uproar but doubtless the High Court, assuming I did assent, would hear immediately a case to declare the resulting "Acts" invalid and he agreed. The Attorney-General has been reported as saying that the Senate has no legal cower to reject money bills but he has written to the Press denying that he said this.

In fact, if the Opposition does reject the Bills and the Prime Minister takes the suggested course backed by proper legal opinion, I may have to consider assenting. Money would probably not have run out at this stage. There would be a couple of weeks to test the point in the High Court. If the "Acts" were held to be valid, caedit quaestio, as we lawyers say; if as is more likely, they were declared to be invalid then supply would have been denied. The Prime Minister would on stated intention try again with the Senate. Mr Fraser's will power and the Prime Minister's would be being tested and the crisis very close. I should say that at the Dinner of the Order of Saint Michael and Saint George Sir Garfield told me he could not, for internal reasons in his Court, guarantee an early decision and expressed the view that the need for Senate acquiescence was quite clear. His opinion was that in the contingency under consideration I should refuse to assent but agreed that, alternatively I could leave the matter to them.

The Press is almost universally against Mr Fraser on all of this and, to give you the atmosphere, I enclose a few cuttings. You will see that my role is being openly canvassed.

Another point of importance put to me by the Prime Minister in Port Moresby was that if I were, at the height of the crisis, contrary to his advice to decide to terminate his commission at the time when the public service, defence forces, police and so on were not being paid he would have to tell me that Mr Fraser would not be able to get supply either because new legislation would probably be necessary and it would not pass the House of Representatives. He was, however, frank, saying that it may be legally possible for Mr Fraser to revive the Bills which have already passed the House and then have them passed in the Senate. We were of course, talking on quite friendly terms in all of this.

One point is that if neither can get supply and public servants etc. are not being paid it is said that only an election can resolve the point and if Mr Whitlam will not advise one I may have to find someone who will. My mind is at the moment open on this. In Port Moresby the Prime Minister said the unpaid people would have to rely on a promise for a while. He would, on this view, ultimately advise an election though he did not say he would. I suppose he would rather go to the people as Prime Minister after sheeting home responsibility to Mr Fraser. The latter would however have always said supply would be immediately granted if the Prime Minister would agree to go to the people. Who would be blamed would be a big question in the election.

Mr Fraser and Mr Anthony were both in Papua New Guinea but naturally I had no talks with them about the crisis.

You will note that in what I have written I have expressed no view about what I may do in various contingencies. I think it better to keep my mind and my options open so that if the worst happens I can decide at the last moment what to do. I am however thinking hard.

All of this has a very great element of bluff in it and the crisis will probably be avoided on the assumption that "something has to give". The better view is that it will probably be Mr Fraser's will power, or rather his inclination to succumb to pressure, but we really do not yet know. It may all be resolved by the time you get this letter. Of course Mr Fraser has not said he will reject supply. His public position is still the same. It is his refusal or failure to say categorically that he will not that has created the problem. Mr Whitlam has challenged him to do so but he has so far refrained.

As to the trip to London the Prime Minister is most anxious for it to go on and be announced on the basis that if supply is rejected before I leave it will have to be cancelled. Presumably the same would apply if the crisis were still unresolved by 3 November when we are due to leave. I hope you agree that it is better to proceed as planned.

A possibility is that only Canada would need to be cancelled. We still hope to be in London and to be received by The Queen and believe that this is the likely way that things will turn out.

Yours sincerely

SIGNED  John 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