This is the text of Gough Whitlam’s Address to the National Press Club on the 20th anniversary of The Dismissal.
Mr President, Citizens
It’s always a great pleasure for me to return to the National Press Club, not only because of our long association but because of its importance as a forum. In my time, the party leaders wound up their campaigns here. Now, Labor Prime Ministers use the lunch to launch policies and Liberal leaders to launch themselves.
There must have been a certain inevitability in my being invited back around the time of the 20th anniversary of 11 November 1975. Media interest has been intense and I have had to limit my acceptance of requests for interviews and articles. One of the reasons, frankly, is that I am not preoccupied with the Dismissal. My chief interest in the events of October/November 1975, dramatic as they were, now lies in their relevance to the development of Australia as a Republic. That makes it doubly important that the Australian public should have an accurate understanding of those events and the motives of those who took part in them.
As to the actual events, nothing substantially new has emerged since I published my account in The Truth of the Matter which I launched here in February 1979. The book itself was, in part, a reply to Sir John Kerr’s version in Matters for Judgment published and extensively serialised at the end of 1978.
When you invited me here to launch The Whitlam Government, coinciding with the 10th anniversary of the Dismissal, I said that while there was no new story to be told, there might be new interpretations and revelations of hidden motives. The same holds true, another ten years on.
The relevance of fresh revelations, such as they are, lies in the light they may throw on motives rather than events. In that context, I refer today to two television interviews shown in 1994 and two books published in 1995, – the Barwick book; Paul Kelly’s book launched by the Governor-General this morning; and the ABC interview with Barwick in February last year and the SBS interview with Malcolm Fraser in November last year.
I should first indicate my awareness that, by now, these events truly belong to history for the great majority. Australians voting for the first time in 1975 are now nearly 40. Australians voting for the first time at the next election were either not born or not living in Australia. But that need be no bar at all against a proper understanding of the truth of the matter. Like most great dramas, the central plot is simple enough.
For a concise account, one cannot do better, even today, than refer to the very first book about it, by a journalist who wasn’t even in Canberra at the time. Donald Horne was in a Sydney hospital recovering from a painful eye operation and dashed off his book Death of a Lucky Country in three weeks – a unique kind of post-operative therapy. But he posed the simple question “what happened?” and wrote:
This: the Governor-General secretly made a decision, the effect of which was to support the political plans of the Liberal and National Country Parties.
Against all contemporary practice he did not discuss that decision with the government that was then in power. But having contemplated the decision secretly he secretly got for it the support of the Chief Justice … The Governor-General then mounted a time-tabled operation, for which the phrase “constitutional coup d’état” seems a useful description. It was an operation which had the general effect of leaving the Prime Minister with a false sense of security; then, without discussing any alternatives, kicking him out of office, installing the minority leader as Prime Minister, then dissolving Parliament. It all happened so quickly that no preventive action could be taken.
The two great insights of this passage are these:
- that what we call the constitutional crisis of 1975 was essentially a political crisis, fully capable of being resolved by political means
- and that the essence of the operation by which my government was dismissed – “kicked out”, as Donald Horne says – was secrecy.
Understanding these two points is the key to understanding everything.
I shall not go over again today the ground for my assertion that a political resolution was at hand – specifically, that the defection of even one Liberal senator would have resulted in the Senate being confronted, for the first time, with the direct choice of passing or rejecting the Hayden Budget; and that as many as five Liberal senators would have refused to reject the Budget outright. There was no imperative about 11 November itself. We had Supply until 30 November. All the evidence is that the necessary defections would have occurred that week. Kerr’s intervention pre-empted the political resolution. Bonner, Jessop and Withers confirmed all this on Four Corners.
It is important here to grasp the connection between the timing of Kerr’s intervention and his deception. Secrecy was the absolute condition for the success of the intervention. But we are talking about secrecy sustained against the elected government and the Governor-General’s constitutional adviser, the Prime Minister in unchallenged possession of the confidence of the House of Representatives. It is this aspect that those who come fresh to the matter find most unbelievable.
Kerr himself disclosed a reason which, far from justifying his deceit, condemns it – merely, that if I had got wind of his intention to sack me, I would have got in first and sacked him. In his book Matters for Judgment, he invents an absurd scene in the study at Government House which has me looking around wildly for the ‘phone to ring Buckingham Palace.
Did he think I was some disc jockey from Québec? Passing over this concoction, passing over his complaint to me on 19 October that the Australian editorial calling on him to act was intimidation, passing over his comment to me on 21 October that the notorious Ellicott memorandum was “bullshit”, I simply ask this question:
What judgement shall we pass upon a Governor-General who justifies his deception of a Prime Minister by fear of risking his own job?
I had, as most of you will know, authorised Kerr to consult with Fraser.
Paul Kelly’s great contribution has been to elicit contemporary official documents which prove that at the first interview, on 21 October, Kerr told Fraser that he could not give me an inkling of what he had in mind or I would be immediately on the telephone to London seeking his dismissal. The documents come from the man who headed the Prime Minister’s Department under both me and Fraser.
On the two occasions I have just mentioned, on the evening of 19 October and the morning of 21 October, Kerr himself had directly ‘phoned me concerning his own role; both times he wanted me to understand that his view of his role precluded the precise action he ultimately took.
Kelly’s book exposes Kerr’s paranoia about being dismissed himself. The published extracts and TV and newspaper commentaries, however, do not mention that on 16 October, before the Fraser and Ellicott pronouncements and the Razak dinner, Kerr had asked me to send him reports and recommendations on Governor Hannah’s outburst against my Government at a long business lunch on 15 October so that he could write to the Queen to have Hannah’s dormant commission terminated. Two days later Kerr ‘phoned me that I myself should write to the Queen. My letter was sent to her by courier and she cabled her consent on 28 October. Fraser refused to restore Hannah’s commission and the British Government refused Bjelke-Petersen’s request to extend his term as governor.
On the very day Kerr had this conversation with Fraser, 21 October, he had asked me to obtain an opinion on the Ellicott scenario from the Attorney-General, Kep Enderby, and the Solicitor-General, Maurice Byers. It was given to him on 4 November.
On 30 October I lunched with Kerr in company with his closest friend, Jim McClelland, then Minister for Labour. Did we talk about the weather? Is it any wonder that McClelland, more than any of us, can never forgive the betrayal? But again I ask:
What judgment shall we pass upon a Governor-General who justified his deception of a Prime Minister by confessing to the Leader of the Opposition his own cowardice?
Against this background, I am bound to acknowledge the accuracy of Fraser’s assessment in his interview with SBS, broadcast in November last year, to the effect that he understood Kerr’s psychology better than I did.
It is a revealing transcript. Relaxed at Nareen, Malcolm told the SBS interviewer:
I knew Sir John fairly well, something Whitlam had forgotten …I knew he would not act until the last minute. The last minute was when we could act and still have an election and get it all cleared up before Christmas.
The SBS interview continues:
He would ask me over occasionally to say, you know, what was the condition of the coalition, what was my mind, was it in my mind to alter our position, or alter our tactics, was I going to let Supply through.
And I would answer all those things in the conventional way and say “No, we weren’t going to alter our minds. Yes, we were going to stay very solid. And there might have been some people’s names mentioned in the press, but the press often doesn’t get it right.”
Perish the thought!
The significance of Mr Fraser saying that he answered “all those things in the conventional way” may be gauged by the exchange at Yarralumla when the “caretaker” Ministry was sworn in, on 12 November. One of your former colleagues Russell Schneider recorded that Kerr appealed to the new Deputy Prime Minister, Doug Anthony, to reassure him that “The Senate would never have caved in, would it?” Upon hearing which Senator Margaret Guilfoyle remarked to Withers: “That’s all he knows”.
I return to the SBS transcript: Kerr and Fraser met for the last time on Thursday 6 November. This time, Fraser added something to his conventional responses:
“Your Excellency, you know that if there’s not an election at the end of the day, I’m going to have to say something about what that means, and I regret it, but it will mean obviously saying something about this office. Because I believe that your duty requires you to provide an election and to make sure that there is an election. I think that’s very clear from the Constitution and from the historic precedents of the office.”
In short, Fraser threatened Kerr with a public denunciation for failing his duty.
Let me make it clear that I don’t blame Fraser for exploiting Kerr’s weaknesses. Nor did I expect Kerr to report the discussions I had approved. But when Fraser purported to give constitutional advice, when he claimed that, in his words, “very clearly from the Constitution and from the historic precedents of the office of Governor-General” it was Kerr’s duty to dismiss my government, a line of propriety was crossed. Beyond question, the Governor-General had a duty to inform his official adviser, the Prime Minister, about the Leader of the Opposition’s advice on the Constitution. After all, Kerr had sought and received my protection from the intimidation by the Australian newspaper. He succumbed to Fraser’s intimidation, dressed up as constitutional practice. Yet now I am told, 20 years later, that he “felt he could not discuss the situation with me”!
While I had approved Kerr’s consultations with Fraser, Kerr’s consultations with Barwick occurred against my advice and without my knowledge. He had asked me whether he should consult with Barwick on 19 October. I gave him specific reasons of precedent and propriety and prudence why he should not. Kerr did not demur at my response and did not renew his request.
When Kerr terminated my commission at Government House on 11 November, I rose to leave. He also rose and added: “The Chief Justice agrees with this course of action”. I said: “So that is why you had him to lunch yesterday. I advised you that you should not consult him on this matter”. He shrugged his shoulders and merely said: “We shall all have to live with this”. I am told that I was naive to believe that a Governor-General and a Chief Justice would be honourable men.
Kerr did not tell me that he had had a letter from Barwick. He did not reveal that fact or that text till a week later, after Enderby had released his and Byers’ contrary opinion. After a lapse of another eighteen years, Barwick revealed in his television interview that Kerr asked him to show the letter to two other justices, Sir Anthony Mason and Sir Ninian Stephen, later Chief Justice and Governor-General respectively. I do believe that Chief Justice Mason and Governor-General Stephen were honourable men.
Here again contemporary official documents provide the explanation. On 24 February 1975 Kerr was shaken when the High Court heard a challenge to Hasluck’s right to grant a Double Dissolution in April 1974 on the ground that the Senate had twice rejected the Petroleum and Minerals Authority Act and Hasluck’s right to submit the bill to the joint sitting in August. On 24 June Barwick announced that he himself and Justices Gibbs, Stephen and Mason had overruled Hasluck. The justices, however, did not publish their reasons.
Barwick spent July at the Privy Council. We now learn from his book that at the Order of St Michael and St George dinner on 20 September Kerr spoke to him about his situation. The reasons were published on 30 September.
Meanwhile, in May the Court heard a challenge to another bill passed at the joint sitting, the Senate (Representation of Territories) Act. On 10 October the Court upheld Hasluck but did not identify the justices in favour or publish their reasons. The reasons were published on 17 October. Kerr was embarrassed to find that Barwick was in the minority, having lost Mason. That explains Kerr’s call to me on 19 October about consulting Barwick.
In May the Court also heard a challenge to the Australian Assistance Plan. On 17 October it announced its decision in favour of my Government but again did not identify the justices in favour or publish their reasons. The reasons were delayed till 29 October. Again Kerr was mortified to find that Barwick was in a minority, having this time lost Stephen. Accordingly, on 10 November Kerr wanted to ensure that not only Barwick but also Stephen and Mason would be on his side in any challenge to the action he had resolved to take against my Government.
In 1976 Kerr asked Fraser for additional funds so that he could appoint some lawyers to his staff. Fraser wrote back that a Governor-General’s legal advisers were the Attorney-General and the Solicitor-General, Ellicott and Byers.
The full significance of Barwick’s letter of 10 November was largely lost in the rush of events after 11 November. No one was prepared for the full force of the Barwick doctrine developed in his book this year.
Barwick’s theory of the Australian Constitution boils down to the proposition that, to be legitimate, an Australian Government must have a majority in both Houses of Parliament, the Senate as well as and as much as the House of Representatives.
In his letter to Kerr of 10 November 1975, Barwick stated:
A Government having the confidence of the House of Representatives but not that of the Senate, both elected Houses, cannot secure Supply to the Crown.
For 20 years, most Australians would have limited the application of this assertion to the 1975 situation when the Appropriation Bills had been delayed but never rejected. But in his new book, Barwick goes much further, and writes (page 284):
During the life of a Parliament the Ministry must continue to have the confidence of the Parliament.
For Barwick, this means the confidence of both the Representatives and the Senate.
He then lists three grounds on which lack of confidence might be expressed:
- A resolution of no-confidence by the House of Representatives
- Failure to pass a legislative proposal vital to the execution of a major policy of the Ministry
- Failure to carry the annual budget.
You should note, ladies and gentlemen, that none of Barwick’s three grounds existed on 11 November. My Government never lost the confidence of the House of Representatives. After the Budget was passed it won eight divisions in the House. As to the second ground, Barwick surely cannot mean the 21 bills which had been rejected by the Senate and which formed the spurious condition on which Kerr commissioned Fraser as Prime Minister. Kerr made it a condition of appointing Fraser that Fraser would then advise him to dissolve both Houses of Parliament on the ground that the Senate had twice rejected 21 bills which were not in the Budget. If Kerr had really believed for a minute that this was a genuine ground for a double dissolution, he would have secured an undertaking from Fraser that, if he won the election, he would reintroduce and support the 21 bills. As to Barwick’s third ground, I repeat: whether or not the government could carry its Budget still remained to be tested; – and tested, not in the mind of Fraser, the anxieties of Kerr or the opinion of Barwick, but on the floor of the Senate.
There has been some speculation and belated advice that my Government could and should have rejected the Appropriation Bills in the Senate on 11 November. Paul Kelly says my tactics should have been twofold – to deny Fraser Supply and then move a motion of no confidence in him in the House. Last Saturday the Melbourne Herald Sun opined:
If the Labor senators had done what the coalition had been doing for the previous month, – use their numbers in the deadlocked chamber to block a vote on Supply, then Mr Fraser too would have lacked Supply.
My Government’s objective throughout was to have the Senate pass or reject the Appropriation Bills. That remained our objective. If Ken Wriedt, Leader of the Government in the Senate, Doug McClelland, Manager of Government Business in the Senate, Deputy Prime Minister Frank Crean, Leader of the House Fred Daly and I had again considered the issue during the luncheon adjournment on 11 November we would all have pressed on with the same objective. The sole question before the Senate on 11 November was to pass the Appropriation Bills. They were passed without a division. If Labor senators had voted against the Bills they would have been defeated by 31 votes to 26. We would have failed to block Supply and we would have been discredited in the process.
Throughout October and November Cleaver Bunton and Steele Hall voted in favour of passing the Appropriation Bills. The last vote in the Senate in 1975 was on the second last sitting day, Thursday 6 November, on a proposal to defer the Appropriation Bills. That question was carried by 29 votes to 28. The 26 Labor senators were supported by Bunton and Hall. If on 11 November the 29 Coalition senators had voted to pass the bills and the 26 Labor senators had voted to reject them Bunton and Hall would again have voted to pass them.
After the Senate passed them there were eight divisions in the House of Representatives. The House censured Fraser as Leader of the Opposition, it repudiated Fraser as Prime Minister, it requested Speaker Scholes to advise Kerr to call me to form a government. The first division was carried by 63 votes to 55, the last four by 64 votes to 54.
In a later passage, Barwick pushes his doctrine to its extreme and reveals the full extent of his hatred of my government and his contempt for the House of Representatives. He puts forward the astonishing proposition that I should have resigned the moment the Liberal party in the Senate told me to!
You will recall that, acting on Fraser’s orders on 15 October, the coalition Senators passed the first of a series of resolutions refusing to consider the budget unless I agreed to advise an election for the House of Representatives. That was always as far as the Senate ever presumed or dared to go; even in that “tainted Senate”, in Steele Hall’s phrase, a motion to reject the budget could not have succeeded. They never had the numbers.
Yet of this motion, couched in terms of a purely partisan and political character, Barwick writes on page 288:
It could be properly said, therefore, that as from 14 October (sic) the ministry had been unable to obtain Supply; it had lost the confidence of the Parliament, though it still had the confidence of the House of Representatives. It then came under a parliamentary obligation to resign or advise a dissolution. From that date it had no legitimate claim to govern.
Here then is the Barwick doctrine in all its starkness, absurdity and irresponsibility. The confidence of the House of Representatives is scarcely more than an incidental; I should have resigned or advised a House of Representatives election on the mere say-so of the opposition senators. I should have departed gracefully on the day on which they first told me. According to the Barwick doctrine, the last Fraser Government lost its legitimacy when it lost its Senate majority on 1 July 1981; the Holt, Gorton, McMahon, Whitlam, Hawke and Keating Governments were never legitimate. None of them had Senate majorities. Nor, indeed, did the first Australian Government; the Barton Government was outnumbered two to one in the Senate. According to Barwick, Australian government was born illegitimate.
Yet we can now see that Barwick’s advice was absolutely crucial in confirming Kerr in the course which, as Barwick asserted in his letter of 10 November, he had already resolved to take. Kerr swallowed the Barwick doctrine entire.
Barwick’s views on responsible government should be discarded as decisively as his views on interstate trade and tax avoidance have been discarded.
There is no greater myth than the portrayal of Kerr as the hapless victim of the intransigence of Fraser and Whitlam. That, for instance, is the version attempted in the first TV series, The Dismissal. If there was any pressure on him, it came from Fraser and Barwick between 6 and 10 November. But even as early as October, a New South Wales judge remembers as a young barrister being seated next to Barwick on a flight from Canberra and being told “Old Silver ought to sack them but he hasn’t got the guts to do it”. But there was a simple way for him to extricate himself. As is usually the case in great politics, it was the plain way of decency and honour. All Kerr had to do was his duty – his duty to be open, frank and honourable in his dealings with the Prime Minister. But that way there could have been no ambush; and without the ambush, there could have been no coup.
Ladies and gentlemen,
In one sense, I suppose we should all be grateful to Barwick. However perverse, his doctrine exposes starkly the true nature of the political and constitutional crisis of October/November 1975. He expresses perfectly the attitude of those who sought the destruction of my government by denying Labor’s legitimacy from the beginning, despite the victory of ’72, despite the victory of ’74. Above all, he brings into focus for a new generation the central issue at stake 20 years ago. The role of the Governor-General became an issue only because of the ambush and the coup. The real issue before 11 November was the right of the elected government, the government having the confidence of the House of Representatives, to govern. That is an issue as relevant today as it was 20 years ago. It will become increasingly relevant as it becomes more likely that no Australian government will meet the condition which Barwick sets for its legitimacy, a majority in the Senate. At stake is the sovereign principle of representative government in our parliamentary system. At the Adelaide Convention in 1897 a great Chief Justice and the first Australian Governor-General, Sir Isaac Isaacs, handed down “the incontrovertible axiom that responsible government is the keystone of the Federal arch”.
My colleagues and I fought for that principle 20 years ago and sought to establish it beyond challenge for all time. I am invincibly confident that the current generation of Australians, citizens of the Australian Republic, will succeed where we failed, because upon that principle depends the success of Australia’s parliamentary democracy.
Mr President, Citizens, I thank you.