Twentieth Anniversary: Maintain Your Rage And Enthusiasm

On the 20th anniversary of the Dismissal, Whitlam spoke at a commemorative dinner at the now Old Parliament House in Canberra.

The speech deals with many of the constitutional and political issues raised by the Dismissal, including the role played by the High Court Chief Justice Sir Garfield Barwick.

“Maintain your rage and your enthusiasm through the campaign for the election now to be held and until polling day.”

Ladies and gentlemen,

I refer emphatically to the next Federal election.

The ultimate answer to those who sought to deny the legitimacy of a Labor Government, not just in November 1975, but from the beginning, after December 1972, will be a Labor victory in 1996.

In quoting myself from my impromptu remarks out there on the steps, I want to be understood in a thoroughly contemporary sense.

The younger generation, whose votes will determine the result of the next election, gives “rage” an entirely new meaning. Even the ABC devotes 10 hours a week, between midnight and dawn every Friday and Saturday, to a music program called “Rage”. I gather it means verve, vigour, and exuberance. And that is the spirit we all should bring to the coming campaign, not looking back to 1975, three-quarters through the 20th century, but forward to the 21st century.

So tonight I might mention some matters I hope to see on the agenda for the next Keating Government.

It’s appropriate, however, that, by way of clearing the decks, I should deal briefly with a couple of matters relating to 11 November, which might be deemed fresh or new.

First, the Four Corners program last Monday. From our point of view, the most significant things in the program were the statements by Senators Bonner and Jessop, confirmed, however indirectly, by Reg Withers, the architect of the strategy to use the Senate to block Supply – not by rejecting it, but merely refusing to vote on it.

Both former senators said explicitly that they had decided to cross the floor and vote to pass the Budget. Neville Bonner said that the crisis would have ended “in a matter of hours”.

We have always known that. The anecdotal evidence has accumulated for 20 years. On 12 November, when the caretaker ministry was sworn in, Margaret Guilfoyle overheard Kerr appealing to Doug Anthony “the Senate wouldn’t have caved in would it” and said to Reg Withers next to her: “That’s all he knows”.

Even before the 11th, Don Jessop and Alan Missen were reported as saying that they would not vote to reject the Budget, whenever that became the direct question. Presumably, Fraser was referring to them when, on his own admission, he told Kerr “in the conventional way” that names had appeared in the press, but the press didn’t always get things right.

[Townley, Marriott, Bessell; Drake-Brockman, Laucke]

In that “tainted” Senate, he used Steele Hall’s description, one defection, one decent Liberal, would have been enough to bring the matter to a vote – pass or reject the Budget. Two such would have been enough to pass it.

Now it is on the permanent public record, from indisputable sources, that there were certainly two and probably five ready that very week, perhaps that very day or the next, to act honourably, end the charade and pass the Budget.

In short, Kerr’s intervention prevented the political solution of the political crisis. He pre-empted the resolution which had been the whole and sole objective of our fight since 16 October.

Kerr’s action was not only wrong. It was totally unnecessary.

Secondly, I deal with a point urged by Paul Kelly in his new book. He suggests that the Labor Senators lost the chance to spike Fraser and spite Kerr by going into reverse and voting against our own Budget. The implication, of course, is that I was remiss in not devising this as a contingent strategy.

Set aside, for the sake of the argument, that such a somersault would have totally discredited the case which we had pursued with such passion and with such success for the past month – the turnaround of public opinion; the mounting evidence of imminent Liberal defections; the Bulletin about to publish an edition with the cover of Fraser “The Man in the Muddle” – the whole edition had to be pulped.

Set all that aside; and still, there is an absolutely conclusive reason why we should not have voted against our own Budget.

Simply, it would not have worked.

It would have achieved nothing.

They didn’t have the numbers to reject the Hayden Budget; nor did we.

Throughout the crisis, Cleaver Bunton and Steele Hall voted with us to pass the Appropriation Bills. They consistently voted against the Coalition resolution.

While it is true that Bunton’s appointment by the Lewis Government in New South Wales was the first gross breach of convention in ’75, he always voted to pass Supply.

Steele Hall was then sitting as an Independent. It was Hall who hit the mark when he said on day one of the crisis, 16 October, – the day Barwick now says I should have resigned – that “the Opposition was marching on the sleazy road to power over a dead man’s corpse”.

This, of course, was a reference to Bjelke-Petersen’s appointment of the unfortunate Albert Field after the death of Bert Milliner. Field, incidentally did not sit or vote during the crisis, because his appointment was being challenged before the Senate Privileges Committee.

But the point is that there is no way Bunton or Hall would have altered their vote. Nor should they have. If we had voted to reject our own Budget, it still would have been passed by 31 votes to 26. We would have lost both the vote and our credibility.

Thirdly, I suppose I have to deal, however cursorily, with this idea, central to Paul Kelly’s book and his Four Corners program, that I misjudged Kerr’s psychology, or, at least, Fraser judged and exploited his weaknesses and insecurities better than I.

I suppose different Prime Ministers deal differently with Monarchs or their representatives. Queen Victoria, for instance, used to complain that Gladstone spoke to her as if he were addressing a public meeting. But she knew she always had to act on his advice in the end.

By contrast Gladstone’s great rival Disraeli was blunt about it: “When it comes to Royalty, lay it on with a trowel”.

But even Disraeli knew where to draw the line. When he was on his death-bed, Victoria wanted to pay him a last visit. He refused to see her and said: “What’s the point? She’d only ask me to take a message to Albert”.

Now, with her great-great-granddaughter … it’s true that I had once to make her an apology – for appointing John Kerr.

But, as I said at the National Press Club, why should I apologise for being so naive as to believe that the Governor-General and the Chief Justice were honourable men?

Kerr, a former Chief Justice of NSW, and Barwick, the Chief Justice of Australia, were guilty of sharp practice. More than the sum total of all other factors, their conduct has been responsible for the great lack of respect which many people of all ages, of all origins, of all walks of life feel and show for Australian lawyers.

Contrast the account of his conduct which Barwick gave to his brother judges on 12 and 14 November 1975 with the account he gave on ABC TV in February last year and in his book this year. On 14 November 1975 Lionel Murphy wrote to him:

I have received your memorandum dated 12th November 1975 and the copy of your letter dated 10th November to the Governor-General advising him on the dismissal of the Prime Minister, who had the confidence of the House of Representatives, his replacement by the Leader of the Opposition, who did not, and the calling of an immediate election.

As your memorandum might now, or in the future, be taken as associating the court with your advice to the Governor-General, I wish to make my attitude quite clear.

In my view, a Chief Justice, or any other Justice, of this court should not act as a constitutional adviser to the Governor-General on a subject such as this, which would always be intensely controversial and involve the whole country in an extreme degree of political partisanship.

I am not discussing the question of a Chief Justice giving advice to a Governor-General, in any circumstances, only on extremely political events, and particularly where he knows that the advice he is giving to the Governor-General is in direct opposition to that being given to the Governor-General by the Prime Minister.

The advice itself was, in my opinion, wrong and, by its disregard of options open to the Governor-General, seriously prejudicial to one side in the political controversy.

I disassociate myself completely from your action in advising the Governor-General and from the advice you gave.

On 14 November Barwick wrote back:

I received your note this morning. You have entirely misconceived my purpose in informing the members of the court of my actions on Monday, November 10.

I did so merely out of courtesy and not in any sense to seek support or acquiescence. I need neither. I do not regard any Justice as having confirmed or approved my action.

I note your remarks. I fundamentally disagree with them, both as to any legal opinion they involve and as to any matter of the propriety of my conduct. I see no need to discuss with you either question.

I now quote the ABC interview:

Bruce Donald: Did Kerr seek the views of any other High Court judges at the time?

Garfield Barwick: Oh well, I didn’t consult anybody else. I acted on my own, because I was doing something personal. But Kerr did ask me would I ask Tony Mason who had been Solicitor-General what he thought, and at Kerr’s request I did, and Tony Mason said that what I was doing was right.

Bruce Donald: So this was before the dismissal took place?

Garfield Barwick: It was after I’d written the letter but before it was delivered, but I don’t remember at what time I told Kerr that I’d spoken to Mason.

One cannot believe Barwick from one year to the next. In his book he gives another account of “what actually happened in that connection”:

After I had returned to chambers when the court rose, I received a telephone call from Sir John Kerr. He acknowledged receipt of my letter and he then said that he was curious to know what the former Solicitors-General would have thought of the matter. He said he knew what one of them, Robert Ellicott, thought because he had publicly stated his views. But he would like to know what the other retired Solicitor-General, Sir Anthony Mason, thought. He asked me would I mind asking him. I said I did not mind doing that and after I had concluded the conversation I went downstairs to Sir Anthony’s chambers. Sir Anthony had been sitting with me during the afternoon though he was then unaware of what had passed between Sir John and myself earlier that day. I told him what had occurred and I told him the substance of my letter. I told him that Sir John had asked me to ask him his view and I was now doing so. He said he quite agreed with the view I had expressed and I may say he did so without any reluctance. I returned to my chambers and phoned Sir John and informed him of what had passed between Sir Anthony and myself.

Kerr made it easy for Fraser to be commissioned as Prime Minister. He had David Smith type up the letter to me, the letter to Fraser. The idea for the double dissolution and all the documents for the double dissolution had all been prepared for Fraser. Sir Ninian Stephen learned from the experience but Fraser did not.

In his ABC interview Barwick implicates other Governors-General:

Governors-General seem to have had the idea that they can get advice from the Chief Justice. … I remember Hasluck applied to me to look through a paper he was writing on the Constitution. Would I tell him whether it was right?

In the book this passage reads:

Later Mr Hasluck, when he was Governor-General, asked me to read an article he proposed publishing about his office and advise him it if was correct.

In January last year Sir David Smith also asserted that not only Sir Paul’s successor but Sir Paul himself and five other Governors-General had been given advice by Chief Justices. The only subject on which Sir Paul sought advice was the illuminating and impeccable Queale Lecture of 24 October 1972. The subject on which Sir Paul’s predecessor sought Barwick’s advice was the succession to Prime Minister Holt. A grossly partisan letter had to be retrieved from Holt’s briefcase after he drowned; the text appears in W.J.Hudson’s biography, Casey (Oxford, 1986). It is reassuring to note that at his first press conference the Governor-General designate, Sir William Deane, stated:

I cannot envisage any circumstances in which I would seek the advice of the Chief Justice or any other member of the High Court.

In his book Barwick does not repeat the reference he made to Stephen on the ABC:

I showed my letter, actually, to Ninian Stephen some days later when he happened to be in my chambers, and all he said was that’s a very good letter. So, I don’t know what Ninian thought about it.

It is surprising that during his many appearances in the last week Fraser has not been asked about the next double dissolution. It was granted after lunch but not during lunch on 4 February 1983. Let me remind you that Fraser again arrived just before lunch at Yarralumla. He had prepared all the documents for Stephen to grant a double dissolution based on 13 bills which had been twice rejected in 1981. He expected Stephen to read them and sign them at once. Stephen told him to come back after lunch. Over lunch another Labor leader was sacked. After lunch Stephen signed the documents for Fraser. Thereafter Fraser did not speak in the House or even on the steps.

Fraser had been caught with his pants down. He was next seen in Memphis, with not even a top-hat to cover his shame.

Which brings me back to the Republic.

All Australians must come to terms with the fact that, if our Constitution remains in its present form, Australia’s next Head of State will be King Charles III. This is the effect of the oath or affirmation of allegiance which the Constitution requires every member of the Australian Parliament to take after election or re-election “before taking his seat”. There is only one proviso, – that he remain a member of the Church of England as required by the English Act of Settlement 1700.

Charles’ birth is his only qualification for Head of State. If he were not the eldest son of our Head of State nobody, monarchist or republican, would seriously consider him as the most suitable Head of State. Some Australians presume to require better standards of their Head of State in waiting than of their Heads of Government in retirement.

In England there is no requirement that the King or the Prince of Wales should be faithful or chaste. The standard was set in 1737 when Queen Caroline, on her deathbed, urged George II to re-marry. He tearfully reassured her: “No, no, my dear. I shall have mistresses”. With her last gasp, she replied: “Good God, that won’t stop you getting married”.

The love of Prince Charles’ life is the granddaughter of Edward VII’s acclaimed maîtresse en titre, Alice Keppel. She was married to a descendant of Arnold Joost van Keppel, who came to England as a 20 year old page to the gay warrior-king, William III, and for his various services was created Earl of Albemarle. She was a singularly charming woman. When some ladies took the liberty of referring to her relationship at a weekend house party she won them over: “I will have you know that I am not the first Keppel to share the bed of a king of England”. Charles II was equally lucky in his last companion. The citizens of London had jeered his Catholic mistresses as they passed through the streets in the royal coach. They cheered the pretty, witty Nell Gwyn when she lowered the window of the coach and called out “I am the Protestant whore!”.

As I said on an occasion like this in Melbourne last year: “When we of the Labor Party commemorate the Dismissal, we celebrate the coming Australian republic”.

It may seem a paradox that a dishonourable Governor-General, acting in a way the Monarch could and would never have done, should have given such momentum to the cause of the Republic.

But he exposed a fundamental flaw in the Constitution – that it enshrines a monarchical system of which the Monarch is not a part.

Ever since 1975 the people have become increasingly aware that the preservation of an Australian democracy and the development of an Australian identity leads inexorably to an Australian Republic.

It’s one thing to have a generalised public sentiment; it’s another thing altogether to give it form and substance, to raise it to the level of practical politics.

That’s been Paul Keating’s achievement.

We are still waiting to hear John Howard’s policies; but this much is clear: the Liberals want to retard the Republic. They acknowledge that the Republic is inevitable. They will use every device and distraction to slow the process down. So it’s a very clear issue for 1996.

We have to make sure that the debate is not side-tracked from the main issue, the creation of the Republic itself, or hijacked by those who really want to bury the issue, for example, those who call for a Convention on the Republic when they really mean prevention of the Republic.

The point – or rather the pointlessness – about a Convention is that it could achieve nothing. A convention cannot put a proposition to the people. Only the Federal Parliament can make a proposal and only the Federal government can put proposals to the people.

Nor can governments put alternative proposals. A referendum on the Constitution is not an opinion poll.

That is very relevant when we come to consider the secondary issues such as the method of appointment of the President.

That’s an important question; but we shouldn’t be distracted by it from the main game.

It’s true that the polls suggest that at present a big majority favour popular election of the President. But when you test the reasons for this response, you almost invariably get the answer: “We don’t want a politician”.

The fact is, of course, that if you want to guarantee absolutely that the President will always be a party politician, you make it an elective office.

There’s nothing wrong with that. But the people should be very clear about this inevitable consequence of having an elected President. If that turns out to be the method of appointment, the great parties will always run candidates and one of the party candidates will always win.

The important thing is to strengthen our parliamentary democracy. This will best be achieved by ensuring that the Constitution makes the President a constituent part of the Parliament, as indeed the Monarch is part of the Parliament under the present Constitution.

The great principle of responsible government, the government answerable to the people’s House, the House of Representatives, took a battering on 11 November 1975. Let’s ensure that the Australian Republic enshrines the principle and strengthens Australia’s parliamentary democracy.

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