July 15, 2020

Federal politics

The Queen’s cur

By Russell Marks

Governor-general Sir John Kerr escorts Queen Elizabeth II to her aircraft at Perth Airport, April 5, 1977. (Photo by Central Press / Getty Images)

On Kerr, the Palace Letters and the Crown’s silence

As Gough Whitlam predicted on November 11, 1975, nothing could save the governor-general. John Kerr, faced with continuing hostility from Labor’s members and supporters after he used his reserve powers to withdraw the prime minister’s commission, limped along in the role until he got sloshed at the Melbourne Cup in 1977 and Malcolm Fraser mercifully appointed him as ambassador to UNESCO. Mercifully, that is, to everyone except UNESCO. In any event Labor wasn’t interested in mercy. Bill Hayden called the posting “in every respect an affront” to the nation.

Of course, that’s rather similar to the way Fraser had been describing Whitlam’s government during the weeks leading up to the Dismissal. In the end, Kerr – possibly unwell, probably inebriated and certainly affronted by the iniquity of his pariah status among half the polity – didn’t take the ambassadorship. It was an ignominious end for a constitutional hero – self-styled – who had done what was necessary to save Australia’s democracy from deadlock, bankruptcy and ruin. Literally unable to go anywhere in the country without copping an angry diatribe of bitter invective, he retreated to London where, predominantly pissed, he eventually succumbed to a brain tumour in 1991. Labor was back in power by then, but such was the rage his mere name still invoked among them – the treasurer, Paul Keating, had been there at the end when Whitlam’s ministry collapsed in ’75 – Kerr’s family didn’t even announce his death until he was buried, so as to save the government from having to decide whether to offer a state funeral.

Kerr’s cur indeed, as Whitlam famously described him on the steps of Old Parliament House. The Dismissal was all the more galling for Labor because Kerr was one of their own, or had been. If his forefathers had been inside the kinds of gentlemen’s clubs he frequented in London, it was only to perform maintenance. His father, Harry, a boilermaker, had gone without pay for two months during the general strike in 1917. Kerr himself was an exceptional student and styled himself after H.V. Evatt, who become Australia’s youngest High Court judge in 1930. Kerr won a scholarship to Evatt’s old school, studied law at Sydney University, won the University Medal and went to the bar as an ALP member representing trade unions. In 1964 he volunteered to defend the editors of satirical magazine Oz in an obscenity prosecution; in 1972 he became Chief Justice of New South Wales.

Had this been all there was to Kerr, it would be easy to understand why Whitlam appointed him governor-general in 1974. But Kerr was, in fact, the one person in Australia that Whitlam should not have appointed. It wasn’t just that Kerr had drifted away from Labor after the 1955 split, or that he’d joined the CIA-backed Australian Association for Cultural Freedom, Quadrant’s publisher, while Whitlam liked calling colleagues “comrade”. It wasn’t even that Kerr had jailed the Maoist union leader Clarrie O’Shea in 1969, an action that sparked the biggest national strike in the postwar era. The reason was inherent in the very appointment itself. Why would a brilliant lawyer take on the largely ceremonial role of governor-general just two years after he’d become Chief Justice of the nation’s oldest supreme court?

Because for Kerr, the role of governor-general was even more powerful than his NSW gig. It was, for him, the most powerful role in Australia’s constitutional system. This was hardly a mainstream view, but it was also hardly a secret that Kerr held it. Kerr’s erstwhile idol, Evatt, had completed a doctoral thesis on the “royal prerogative”, which became the basis of a 1936 book, The King and His Dominion Governors. Evatt argued that the Crown retained pretty much all of the powers of the executive, notwithstanding parliamentary democracy. Between thesis and book had come NSW Premier Jack Lang’s dismissal by Governor Phillip Game in 1932, after Lang had withdrawn all of the state’s money from government bank accounts so as to prevent Joseph Lyons’ federal government from accessing it to repay public debt at the height of the Great Depression. Then in 1953, Pakistan’s governor-general sensationally dismissed Prime Minister Khawaja Nazimuddin’s government just two weeks after it had won the confidence of parliament, and the following year he dissolved the entire parliament in retaliation after it had changed the law to prevent the governor-general from acting except on the advice of his ministers. When Pakistan’s Federal Court considered the governor-general’s actions it found them lawful, and based its reasoning in part on Evatt’s book. As Zelman Cowen later wrote: “constitutional authority was vested in the governor-general to deal with the emergency situation”.

Kerr knew all this. Before accepting the role of governor-general from Whitlam he re-read Evatt’s book. While enjoying the trappings of high office, the jetsetting G-G was boasting to everyone from Elizabeth Reid to Clifton Pugh that he was the most powerful man in Australia. Kerr was looking for an opportunity to use his powers. Reid tried to warn Whitlam of Kerr’s plans, but he took no heed. Of the many factors that converged to eject Whitlam out of office, his own self-destructive inability to read people and situations was among the most important.

The history of the Dismissal has dribbled out in bibs and bobs since that gigantic crash in November 1975. Who met whom, when, and what was said – these questions have been the source of endless fascination and conjecture ever since. Between 2005 and 2012 the role played by Anthony Mason – who later presided over one of the High Court’s most “reforming” eras during the early 1990s – was sensationally revealed by Whitlam’s biographer, Jenny Hocking. Mason had only been appointed to the High Court for three years when, in September 1975, he convened a “seminar” at the ANU (where he was pro-chancellor) at Kerr’s request so that the governor-general could pick the brains of very smart people about the reserve powers. Kerr and Mason had been close friends since Mason had been Kerr’s junior counsel 20 years earlier. Significantly, these seminars (there were two) took place in the month before Fraser decided to block supply (though the possibility that supply would be blocked had been the source of speculation for some time – indeed, Whitlam had raised the possibility when he was Opposition leader in 1970). “No doubt the questions which you have in mind are presently hypothetical,” Mason wrote to Kerr, expressing discomfort at further involvement. “Unfortunately the hypothetical questions of today have a distressing habit of becoming the actual questions of tomorrow.”

Before yesterday, we knew that Kerr had approached not only Mason but also Garfield Barwick, the High Court’s chief justice, for advice, and neither he nor they had told Whitlam of those conversations before he was sacked. Both Mason and Barwick advised Kerr to inform Whitlam, but Kerr didn’t want to. He was, justifiably, afraid that if he told Whitlam he was considering sacking him, Whitlam would get in first and sack Kerr. Yesterday, perhaps the greatest remaining piece of the Dismissal puzzle was uncovered: the reams of correspondence between Kerr and Buckingham Palace itself. Queen Elizabeth had embargoed the documents’ release until at least 2027, and possibly indefinitely. Again it was Jenny Hocking who was responsible for their release, waging a four-year legal battle and winning, fittingly, in the High Court in May.

As early as September 1975, the released letters reveal, Kerr wrote to the Queen and explicitly raised his reserve powers. This was around the time Kerr and Mason had their ANU seminars, but it was well before Fraser had decided to block supply, which he finally did in mid-October following Rex Connor’s resignation over the Loans Affair. The Queen’s private secretary, Martin Charteris, wrote back to Kerr: “If supply is refused, it also makes it constitutionally proper to grant a dissolution.” By early October, Kerr had raised with the Palace – and apparently directly with Prince Charles – his fear that Whitlam might sack him (Kerr) first. And dated November 11 is the letter that reveals what we hadn’t known: Kerr had decided to sack Whitlam without first telling the Palace. “Under the Constitution,” he wrote, “the responsibility is mine, and I was of the opinion it was better for Her Majesty not to know in advance.”

God, or something else, did save the Queen. She and the Crown, as it turns out, have survived everyone and everything. Whitlam. Fraser. Kerr. Barwick. Even “God Save the Queen” itself, which was finally replaced as Australia’s national anthem in 1984. Keating’s political career. Mason’s judicial career. The Republic referendum of 1999. The prime ministership of the leader of the failed republican movement, Malcolm Turnbull. Even the political career of Tony Abbott, among her greatest supporters anywhere, the man who knighted Prince Philip and threatened to turn the whole show into a farce. Only Rupert Murdoch, who turned against Whitlam and kept right on galloping in the same general direction, has had Lizzie’s staying power.

Do the Palace Letters automatically, as some assert, boost the republican cause? It’s difficult to say, in part because it’s possible to interpret the Queen’s role in Australia’s Constitution in different ways. On the one hand executive power, which is vested in the Queen, is “exercisable by the governor-general as the Queen’s representative”, and ministers hold office only “during the pleasure of the governor-general”. On one reading – which Kerr preferred – this establishes a “trustee” model of representation in which the Queen has no direct power to, say, sack a government. On the other hand, had the Queen instructed Kerr to take particular action – and he certainly gave her every opportunity to do so – it’s difficult to imagine that Kerr would not have heeded those instructions. And elsewhere the Constitution gives the Queen direct powers, including to disallow legislation passed by both houses of parliament and given assent by the governor-general. By convention, it seems clear that the Queen was never actually going to intervene in 1975 one way or the other, including by stopping Kerr from what she could clearly see was his course: the Queen’s view seems to be that she shouldn’t be seen to have one, and that any exercise of the royal prerogative is a matter for her representatives alone. Ultimately – and this is the great paradox of power – the fact that the Queen has maintained her powers in Australia has depended in no small part on the fact that she’s never used them.

Not counting its brief, introductory visit along the eastern coast in 1770, the Crown has been a force in Australia since January 1788, when Arthur Phillip arrived and the British stayed. The Crown immediately assumed a protective role over Aboriginal people, while simultaneously providing cover for settlers and governors who massacred them and stole their lands. Under its auspices, courts were established, which introduced the fiction of terra nullius in the 19th century. Nearly three decades after that fiction was exposed in 1992, the Crown still controls a hell of a lot of land. And it remains the aggrieved party in every crime that happens here, which is imagined as an offence against the Crown (as represented by the state), not the victim. (Every crime, that is, except the biggest one: the original land theft.)  As a direct consequence of its assumption of total sovereignty, Aboriginal law and conflict resolutions are, even in 2020, still ignored. The Crown is the legal source of the alien culture that laid itself over this land and claimed a sovereignty that was never ceded by those who were here first.

None of this history would change if the role of the Crown and the person who wears it was simply to pass to an “Australian” head of state. In all likelihood, such a person would be representative of the same alien culture that continues to deny Aboriginal sovereignty over this territory. “Native title” and even “land rights” are very poor cousins to territorial sovereignty.

By disclosing something significant about the relationship between Australia’s political system and the Crown, the release of Kerr’s correspondence with the Palace nearly half a century ago gives us an opportunity to close the book, at long last, on “British” Australia, with its terra nullius and its Orwellian “protections” and its unwritten conventions and its denials of truth and justice. And we would then have the opportunity to begin a new book, one that takes a clear view of what has happened here and considers what we want our future to look like. If we’re to imagine a republic, it must be a meaningful republic.

Russell Marks

Russell Marks is a lawyer and an honorary research associate at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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