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Matters for Judgement - John Kerr - Hardback

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Matters for Judgement - John Kerr - Hardback

Matters for Judgement - John Kerr - Hardback

Matters for Judgement : An Autobiography - Sir John Kerr

Used hardback: .1978 edition ex -library book good condition some tears in dustcover -

The view of history and his role in the dismissal of the Whitlam Goverment in 1975

About the Author John Kerr

Sir John Robert Kerr AK, GCMG, GCVO (24 September 1914 – 24 March 1991) was the 13th Chief Justice of the Supreme Court of New South Wales and 18th Governor-General of Australia. He dismissed the Labor government of Gough Whitlam on 11 November 1975, marking the climax of one of the most significant constitutional crises in Australian history.

Kerr's career

Kerr was born in Balmain, a working-class suburb of Sydney, where his father was a boiler-maker. He entered the prestigious selective high school Fort Street High School. He won scholarships to the University of Sydney and graduated in law with first class honours and the University Medal, being called to the New South Wales bar in 1938. At Fort Street, he met Dr H.V. Evatt who later became a judge of the High Court of Australia, and became a protege of his for many years. In 1938 Kerr married Alison Worstead, with whom he had three children. He spent World War II working for an obscure Australian intelligence organisation, the Directorate of Research and Civil Affairs, a fact which later gave rise to many conspiracy theories. In 1946 he became principal of the Australian School of Pacific Administration and the first Secretary-General of the South Pacific Commission.

Kerr returned to the bar in 1948, becoming a prominent lawyer representing trade union clients and a member of the Australian Labor Party. He intended to seek Labor endorsement for a parliamentary seat at the 1951 elections, but withdrew in favour of another candidate. After the Labor split of 1955, however, he became disillusioned with party politics. He disliked what he saw as the leftward trend of the Australian Labor Party under Evatt's leadership, but was not attracted to the breakaway group, the Democratic Labor Party. In the 1960s Kerr became one of Sydney's leading industrial lawyers. In the 1950s he had become a QC . In 1964 he was one of a group of lawyers (which also included future NSW Premier Neville Wran) who lent their expertise to the defence of the publishers of the satirical magazine Oz when they were prosecuted for obscenity. In 1966 Kerr was appointed a judge of the Commonwealth Industrial Court and, later, to several other judicial positions. During this period his political views became more conservative. He joined the Association for Cultural Freedom, a conservative group (later revealed to have received Central Intelligence Agency funding) and became a friend of Sir Garfield Barwick, the Liberal Attorney-General who became Chief Justice of the High Court of Australia in 1964. Kerr was the first chairman of the Law Association for Asia and the Western Pacific (LawAsia), founded by Hon Justice Paul Toose QC CBE and John Bruce Piggot CBE in 1966. Kerr served as chairman of that organisation until 1970.

Kerr was appointed Chief Justice of New South Wales in 1972. Sir Paul Hasluck retired as Governor-General in July 1974. The Prime Minister, Gough Whitlam, offered Sir John the post. Kerr did not know Whitlam well, but he had remained friends with several ministers in Whitlam's government, such as James McClelland and Joe Riordan. Kerr's first wife Alison was a fellow student of Margaret Whitlam during University days. Whitlam seems to have believed that because of Kerr's former membership in the Labor Party he was still politically "reliable," without realising that Kerr's political views had changed and that he had come to see the role of Governor-General differently from Whitlam. Shortly after Kerr took office in July 1974, his wife died. He later married Anne Robson.

Kerr as Governor-General

The Whitlam Government had won a second term in May 1974, but failed to win control of the Senate, where the balance of power was held by two independents. During 1975 the government was enveloped by a series of ministerial scandals (the "Loans Affair"), which resulted in the sacking of two senior ministers, Rex Connor and Deputy Prime Minister, Jim Cairns. The Liberal Opposition Leader, Malcolm Fraser, decided to use the Senate to block the government's budget bills, thus forcing an early election for the House of Representatives (this is called "blocking supply"). Fraser was able to do this only because two ALP Senators were replaced by non-ALP Senators, against established constitutional convention, that did not support the incumbent Whitlam government. Their appointment by the Premier Lewis of NSW and Premier Bjelke-Petersen of Queensland was highly controversial and without precedent. It broke the established constitutional convention that a departing Senator would be replaced by a nominee of their party. A subsequent constitutional referendum was passed to ensure that senators can only be replaced by those of the same political party.

By 1975 the office of Governor-General had come to be seen by most as almost entirely ceremonial. Nevertheless, the Australian Constitution gave the Governor-General wide-ranging reserve powers, including the power to appoint and dismiss Ministers and to dissolve Parliament. Whitlam and others held the view that the Governor-General had no discretion in the exercise of these powers; that they must always be exercised on the advice of the Prime Minister and never otherwise. Kerr chose to disagree fundamentally with this view, arguing the Constitution very clearly set out the Governor-General's powers. Kerr chose to make a study of the reserve powers through his earlier professional relationship with Evatt, the author of the standard work on the reserve powers as they applied to the British Dominions, The King and His Dominion Governors (1936). Kerr was familiar with this book, and re-read it before accepting Whitlam's offer of the Governor-Generalship.

The 1975 crisis

In October 1975 the Liberals used their Senate majority to defer voting on the supply bills until Whitlam agreed to hold an election for the House of Representatives, and a political crisis resulted. Whitlam refused to back down and call an early election, Fraser also would not back down and allow the budget bills to pass. If this impasse had gone on indefinitely, the government would have run out of money and been unable to meet its financial obligations. It was estimated that it would be late November before this occurred. Whitlam was confident that at least some of the Liberal Senators would back down if he held out long enough. He also thought that public opinion was swinging back his way as a result of Fraser's tactics, and that at an opportune moment he could call a half-Senate election (at which the government would not be at stake) as a means of breaking the deadlock. Fraser was also aware of these considerations. He knew that several Liberal Senators were indeed uneasy about the blocking of supply, and might not prove reliable for much longer. After the dismissal Liberal Senator Reg Withers confirmed this. He also saw evidence in the opinion polls that the public was unhappy about the use of the Senate to block supply. For this reason he was keen to bring the crisis to an early climax. The most expeditious way for this to happen would be for the Governor-General to intervene.

Opposition backbenchers began calling on Kerr to dismiss Whitlam during October: it is not clear if they had Fraser's approval for these remarks. On 16 October, however, a Liberal frontbencher, Robert Ellicott (a former Commonwealth Solicitor-General) published with Fraser's approval a legal opinion which he had prepared for the Shadow Cabinet, arguing that the Governor-General had both the right and the duty to dismiss the government if it could not obtain supply. On 17 October Whitlam told an interviewer that the Governor-General could not intervene in the crisis because he must always act on the advice of his Prime Minister. Whitlam said later that he intended these remarks to protect Kerr, by making clear his view that the Governor-General had no power to intervene. But Kerr apparently saw them as an attempt to intimidate him, and also as expressing a view of the reserve powers that he did not share.

Kerr saw himself as an active player in the unfolding political drama. He made it clear in several conversations with ministers that he did not accept the view that the Governor-General could play no role in the crisis until supply actually ran out: he saw it as his duty to help prevent things from getting to that stage. On 30 October he proposed a compromise solution to Whitlam and Fraser, which would have in effect meant a backdown by Fraser (Kerr suggested Fraser pass the Budget in return for Whitlam abandoning plans to call an early Senate election), but Fraser rejected this. On 2 November Fraser offered to pass the budget if Whitlam would agree to call an election before the middle of 1976, but Whitlam in turn rejected this. Under Westminster convention it is the Prime Minister who determines the timing of an election and not the Leader of the Opposition. It becomes clear that Kerr had considerable discussions with Fraser against the specific advice of the Prime Minister. When Whitlam rejected Fraser's proposal, it seems, Kerr decided that Whitlam was being intransigent. n Kerr's personal relationship with Whitlam by this stage was not strong, he had been upset by suggestions that the Federal Executive Council had acted improperly during the Loans Affair, and moreover he was suspicious that if Whitlam knew he was contemplating dismissing the Government, he (Whitlam) would react by immediately advising the Queen to dismiss Kerr instead. Whitlam for his part assumed with characteristic confidence that Kerr, acting in the established manner of all previous vice-regal representatives, was in full sympathy with the Government's position and would do nothing to act against him. He therefore made no effort to convince Kerr of the validity of his position and did not think to consult with him during the crisis.

The dismissal
Kerr had another meeting with Fraser (with Whitlam's approval) on 6 November. At this meeting Fraser increased the pressure on Kerr, advising him that the Opposition would not back down and would not accept any compromise, and warning him that if he did not take action against Whitlam then the Opposition would begin to make direct public criticism of him, for having "failed in his duty." Fraser urged Kerr to bring about an election before the end of 1975. The provisions of the Electoral Act, meant that the last date on which a 1975 election could be announced was 11 November. Kerr therefore had five days to make up his mind. Fraser privately told journalists after this meeting that he was certain that Kerr would dismiss Whitlam. On 9 November Kerr consulted the Chief Justice of the High Court of Australia, Garfield Barwick. Kerr asked Garfield to advise him on whether he had the constitutional power to dismiss Whitlam, and Barwick advised him, in writing, that he did. He also advised him that another High Court Justice, Sir Anthony Mason, concurred in this view. Since the advice Barwick gave Kerr became central to subsequent events, it is important to note that this advice was entirely informal and personal. The High Court does not issue advisory opinions, and in any case Kerr did not consult the court as a court, only the Chief Justice. Barwick could not issue advice in his capacity as Chief Justice, only as an individual. In any case, Barwick's impartiality in this instance was open to question, as he was a former Attorney-General in a Liberal Party government. Whitlam later claimed he specifically prohibited Kerr from seeking advice from Barwick; a claim that Kerr denied.

Kerr appears to have made up his mind on 9 November to dismiss Whitlam. He did not advise Whitlam that this was his intention, indeed actively concealed his intention from Whitlam and his ministers. His justification for this was that he feared that Whitlam would advise Queen Elizabeth II (Australia's head of state) to terminate Kerr's commission as Governor-General if he gave any warning of his intention. In acting in this way, Kerr ignored the most recent precedent, that of Sir Philip Game, the Governor of New South Wales who in 1932 dismissed Jack Lang's government. Game warned Lang in advance that if he, Lang, did not withdraw certain regulations, then he, Game, would dismiss him. This allowed Lang to seek Game's dismissal if he dared, which he did not.

On the morning of Tuesday 11 November, Whitlam phoned Kerr and arranged to see him in the afternoon, after the Remembrance Day ceremonies. He intended to advise Kerr to call an immediate half-Senate election as a means of breaking the deadlock. After this conversation Kerr phoned Fraser and (according to Fraser's recollection) asked him whether, if he were commissioned as Prime Minister, he would

* Pass the budget bills,
* Call an immediate double dissolution election for both houses of Parliament,
* Make no appointments, initiate no new policies and conduct no inquiries into the previous government, before such elections.

Fraser answered yes to all these questions.

In his memoirs Kerr denied making this phone call to Fraser, but Fraser has been adamant in all subsequent accounts that he did. Since Fraser has no reason to lie about this, it seems probable that the conversation did take place. This means that Fraser knew that Kerr intended to dismiss Whitlam, but Whitlam did not. Kerr and Fraser had in effect entered into a conspiracy to deceive the Prime Minister. This is disputed by Sir David Smith, the secretary to the Governor General. In an article in Quadrant Magazine (March 2005, Volume 49, Number 3) Smith claimed that Whitlam knew of Kerr's intentions, the Queen had already made her position of non-intervention known to Whitlam and Kerr, and Kerr had called a double dissolution in order to be fair to both candidates, sincerely believing that Whitlam could win back government with the necessary majority in both houses.

Whitlam arrived at Government House at 1pm. Fraser had already arrived and was shown into another room. Whitlam and Kerr met alone in Kerr's study, and each has given different accounts of what was said. This seems to be the most likely scenario: Whitlam began to tender his advice to Kerr that there be a half-Senate election. Kerr interrupted him and asked him directly whether he was prepared to advise an immediate House of Representatives election. When Whitlam answered "No," Kerr advised him that he was terminating his commission, and handed him a letter to that effect. From that moment Whitlam was no longer Prime Minister, and could take no action to frustrate Kerr's intention to commission Fraser and call an immediate double dissolution. In his memoirs Kerr claimed Whitlam then announced he would call the Palace and began frantically looking for a phone. Whitlam has always vigorously denied this. When Whitlam had left, Kerr summoned Fraser and again asked him the questions he had (according to Fraser) put to him on the phone that morning. When Fraser again answered affirmatively, Kerr then commissioned him as Prime Minister, and Fraser then immediately advised Kerr to dissolve the Parliament and call a double dissolution election for 13 December, which Kerr then did. This rendered void Whitlam's attempt that afternoon to overturn his dismissal by having the House of Representatives pass a motion of no confidence in Fraser's government.

Kerr later put forward five propositions to justify his actions:

* The Senate had the right under Section 53 of the Constitution to block supply.
* The Government had an obligation to obtain supply through Parliament.
* If the Government could not obtain supply, it had either to resign or call an election.
* If the Government refused to do either of these things, the Governor-General had a right and a duty to act to intervene.
* Since the Prime Minister could at any time advise the Queen to terminate the Governor-General's commission, the Governor-General had a right to dismiss the Government without advance warning of his intention to do so.

After the Dismissal
The news that Whitlam had been dismissed spread across Australia during the afternoon, triggering immediate protest demonstrations. Over the following weeks Kerr was the subject of intense denunciations by angry Labor supporters, led by Whitlam who made a series of eloquent speeches attacking Kerr. In retrospect Whitlam's decision to focus his attack during the campaign on Kerr rather than on the Liberal Party was seen by Labor strategists to have been a mistake.

Kerr gained no vindication of any sort when Fraser won an overwhelming victory in the December elections. The result of the election was not a verdict on Kerr but on the Whitlam government. Kerr was not forgiven by the Australian public. Countless demonstrations occurred against him for years. He found the personal attacks on him and his wife (whom Whitlam and others accused of having been a sinister influence) deeply wounding, though they can hardly have been a surprise. A number of Kerr's oldest friends never spoke to him again. The residents of the street in Balmain where he had been born posted him thirty pieces of silver (a reference to Judas Iscariot).

For the rest of his term as Governor-General Kerr was rarely able to appear in public without encountering angry demonstrations against him. On one occasion his life was endangered when he was unable to leave a speaking engagement in Melbourne except by having his car drive through an angry crowd. Labor MPs refused to accept his legitimacy as Governor-General, shunning all official functions where he was in attendance. There is ample evidence that this situation took a toll on Kerr's nerves. There is evidence to suggest that he increasingly turned to alcohol to deal with his situation. He made three long trips overseas during the remainder of his term. He already had a reputation as a drinker, and this tendency appears to have become more pronounced. When he presented the 1977 Melbourne Cup, for example, he was visibly drunk. Concern about his health may have been one reason why he cut short his five-year term and resigned leaving office in December 1977. In fact his resignation had already been proposed during the visit of The Queen as early as March 1977. He was an embarrassment to all concerned. Fraser wanted him gone. Fraser offered Kerr a post as ambassador to UNESCO, an offer which he subsequently withdrew under enormous public pressure. Bill Hayden, then leader of the opposition and leader of the parliamentary labor party and future Governor-General, was one of the critics against the UNESCO appointment. In the Australian Parliament he stated, "The appointment of Sir John Kerr as Ambassador ... is not just an indecent exercise of the rankest cynicism. It is in every respect an affront to this country." After leaving office Kerr lived mainly in Europe until his death in Sydney in 1991.

Matters for Judgement : An Autobiography - Sir John Kerr


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