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| Birth Name(s) : John Kerr |
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Full John Kerr Biography
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 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 eary 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 that 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.
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.
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.
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.
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. |
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