Whitlam Comments On Barwick’s Letter To Kerr

Gough Whitlam commented in detail on Sir Garfield Barwick’s letter to Sir John Kerr in a speech to The Sydney Institute in 1997.

On November 10, 1975, Barwick tendered legal advice to Sir John Kerr that approved of Kerr’s intention to dismiss Whitlam.

Text of Gough Whitlam’s speech to The Sydney Institute.

I am doubly indebted to Gerard Henderson; first, for inviting me to address the Sydney Institute; and secondly, for providing me, albeit unwittingly, with the text for these introductory remarks.

More than that, Gerard has set down one of the main reasons why I chose to spend a considerable part of the past couple of years writing a book.

I refer to his column in the Sydney Morning Herald of 10 June last. He begins:

“Three cheers for the written word.”

He continues:

“Without it, debate and discussion can be unnecessarily confusing.”

Having pursued for half a century vocations in which the word, spoken and written, is of the essence, I endorse the propositions wholeheartedly.

The particular issue which Mr Henderson discussed in his 10 June column was the payment of compensation under the Prime Minister’s 10-point plan in the wake of Wik. I may make a general comment myself later. In his column, however, Mr Henderson wrote:

The familiar tactic of running different lines to different audiences may be clever politics. However, in time, the issue will have to be clarified. It would be best done now, in writing and for public release. Only then can all Australians make a considered assessment of the coalition’s response to the Wik decision. It’s time for a general epistle.

I make no claim to copyright over “It’s Time…”

This book, Abiding Interests, may however be regarded as my general epistle to the Australians.

Tonight, I do want to put the case for the written word, the responsibility those who have been privileged to hold prominent positions in Australian public life to provide some sort of permanent, contemporary record.

In particular, I maintain the higher claim of the written word over what is increasingly seen as its substitute, the so-called oral history. The important thing is that one can be checked, challenged, verified or refuted; the other is intended to be swallowed whole by an unsuspecting posterity, when such checks are no longer available.

Historians should be alert to the dangers of attaching undue authenticity to these voices from the grave. In this book, I give a striking example of the pitfalls. It relates to the appointment of Senator Lionel Murphy to the High Court in February 1975. I am able to correct the version contained in the five volumes of transcriptions lodged with the Australian Archives, the progeny of 18 months of oral intimacy between Sir Garfield Barwick and Clyde Cameron in 1981 and 1982.

My point here is that it was possible for me to challenge their secret discussions on Murphy only because Sir Garfield chose to preview them in this book, A Radical Tory. (A very good Sydney Institute kind of term, if I may say so.). Otherwise they are embargoed until the year 2006.

So three cheers for the written word.

In fact, Sir Garfield Barwick’s book, as distinct from his tapes, provided the main basis for the relatively brief discussion of my government’s dismissal in my own book, barely a tenth of the whole.

I give two reasons for that brevity:

first, my chief interest in the events of October-November 1975 now lies in their relevance to Australia’s advance towards the Republic; and

secondly, in the 22 years since, nothing has emerged to invalidate my basic contentions: that the crisis of November 1975 was not a true constitutional crisis, an insoluble deadlock between the two houses of Parliament, but a political crisis, fully capable of being resolved by political means; and that, but for Sir John Kerr’s action, it would have been resolved – quite quickly – in my government’s favour.

Nevertheless, until Barwick published his book in 1995, I confess I had not realised the full significance of his letter to Kerr dated 10 November 1975. Nor was I totally aware of important circumstances surrounding the letter although a vital clue had been uncovered by Gerard Henderson, in his ABC interview with Barwick in February 1994.

You may recall that Barwick’s letter supporting “the course Your Excellency has already resolved to take”, 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”.

In his book, Barwick expands this assertion into a full-blown constitutional doctrine. Not only does he assert that I was constitutionally obliged to resign immediately the Opposition in the Senate decided to stall the Budget, i.e. 16 October; but he denies legitimacy to any government not having a majority in the Senate – that is, a series of Australian governments from Barton to Howard.

When he handed me his letter dismissing my government, Kerr did not tell me that he had a letter from Barwick. I had expressly tendered him advice, based on precedent and prudent practice, that he should not consult with the Chief Justice on matters that might ultimately come before the High Court. Kerr did not release the Barwick letter till a week later, after Attorney-General Enderby had released an authorised and different opinion from Solicitor-General Maurice Byers and himself, given on 4 November in accordance with Kerr’s request on 21 October.

It was only after a lapse of 18 years, in an ABC interview with Gerard Henderson, that Barwick revealed that, at Kerr’s request, he showed his letter to two other justices, Sir Anthony Mason and Sir Ninian Stephen, later Chief Justice and Governor-General respectively.

In this book, I examine in some detail Kerr’s fears about challenges to the High Court in 1975, in particular a challenge to the Petroleum and Minerals Authority Act 1973. The Senate’s rejection of this legislation had formed one of the grounds on which Sir Paul Hasluck granted the double dissolution in April 1974. The Victorian, New South Wales, Queensland and Western Australian governments appealed on the ground that the PMA Act had not been rejected a second time by the Senate and therefore should not have been accepted by the Governor-General as the basis for a double dissolution and should not have been passed at the joint sitting of Parliament in August 1974.

This was in fact the only legislation of my government ever invalidated by the High Court; but it shook Kerr to find that the decision of a Governor-General to grant a double dissolution could be reviewed, indeed repudiated, by the High Court. In November 1975, he wanted Barwick to use his influence with Mason and Stephen to ensure that they would not again find against a Governor-General, as they had in June. In his book Barwick confirms that Kerr was especially keen to know Mason’s opinion because he had formerly been Solicitor-General.

Gerard Henderson has related elsewhere that Barwick was offended by Kerr’s request for Mason’s opinion; Barwick thought that Kerr should have been satisfied with his opinion alone. Barwick does not tell us whether Kerr informed him of Solicitor-General Byers’ opinion.

One key fact emerges from these revelations, evinced by both the written and the spoken word – books and television -, but all part of the contemporary public record: Kerr was worried about a possible rebuff from the High Court.

And these fears had substance, unlike his fear, real or imagined, that I would seek his dismissal first. Both help explain the ambush.

I emphasise, however, that the events of 1975 form a quite small proportion of this book, Abiding Interests. My contribution to the historiography of the period rests on two previous publications, The Truth of the Matter and The Whitlam Government. There’s been no reason to revise the first or revisit the second. This new book is partly autobiographical, but deals with issues – continuing issues facing Australia – rather than events.

To the extent that it is a work of history, I suppose I can say with Churchill, to quote his preface to The World Crisis, his account of the First World War, “It is a contribution to history strung upon a fairly strong thread of personal reminiscence”. I daresay, too, that in all my political writings, I have shared Churchill’s confidence in the favourable verdict of history, especially, as he said, “I propose to write the history myself”.

I do trust, however, that my present successor as Prime Minister will not accuse me of re-writing history for partisan purposes.

You will recall Mr Howard’s words in his Playford Memorial Lecture in Adelaide just one year ago:

One of the more insidious developments in Australian political life over the past decade or so has been the attempt to re-write Australian history in the service of a partisan political cause. No one should be in any doubt that this process has been a systematic and deliberate one.

This is an extraordinary charge from a conservative leader who had just won an historic victory. Conspiracy theories are normally the obsession of the extreme left.

I have resolutely resisted – and do so again in this book – attempts to explain my government’s dismissal in terms of a conspiracy theory. It is just unnecessary. And the same applies to the contemporary debate on political issues, even when they involve dubious interpretations of history.

In one respect, I can understand the Prime Minister’s exasperation. As John Wesley said: “Why should the Devil have all the best tunes?” His response, however, was not to curse the legions of Hell but to write some tunes of his own and set his brother Charles to work writing more. And it’s true that Labor has the best writers and historians.

The Labor Party may owe more to Methodism than Marxism; but that doesn’t mean a monopoly on history. Why blame Labor diligence for liberal dereliction?

In his Playford Lecture – itself a relatively rare honour for former conservative leaders – the Prime Minister took Paul Keating to task for abusing Sir Robert Menzies who, he said, “had no opportunity to answer back”. I should have thought, with Edmund Burke on Marie Antoinette, that for the Liberal Party and the memory of Sir Robert Menzies “ten thousand swords must have leaped from their scabbards to avenge even a look that threatened insult”. Are we to suppose that all the vast resources of the Liberal Party were impotent, against a single antagonist, however redoubtable?

Although I do recollect that when the Fairfax Press embarked on its posthumous demolition of Sir Robert Askin, the only persons to come his defence were his former driver and press secretary.

It is not the fault of the Labor Party, or Labor historians, much less a conspiracy, that 31 years after his retirement and 19 years after his death, there is still no adequate biography of Sir Robert Menzies. The first volume of the official history leaves Menzies defeated and disillusioned in 1941.

In the same lecture, the Prime Minister coupled the “insidious re-writing of history” with his claim that “a pall of censorship” had “stifled voices of dissent”. Both claims are illusory; but I fear the second has proved far more damaging to Australia. If it was not exactly a message in code, it was certainly taken as a signal.

Paul’s pall pales before the perils of Pauline.

The Prime Minister has given a reason for his failure to repudiate the member for Oxley promptly and authoritatively; he believed, he says, that a Prime Ministerial response would only give publicity to a non-issue. If this was his assessment, it is just the most recent and most damaging instance of a proposition I put forward in my book. Indeed, it is a theme throughout the book: that the last two decades provide abundant examples of the folly of ignoring or postponing a problem in the hope that it will disappear or diminish.

Mr Howard’s failure was the more lamentable in that the Liberal Party itself had acted promptly and honourably by disendorsing its candidate in Oxley, just as the Labor Party had, to its clear political cost, disendorsed the member for Kalgoorlie. I believe those facts highlight the Prime Minister’s miscalculation on this issue.

Some commentators have speculated that the Prime Minister’s initial coyness sprang from a belief that, for historical and demographic reasons, the issue would prove more damaging politically to the Labor Party than to the Coalition parties. I would be reluctant to accept that explanation for Mr Howard’s conduct.

I do suggest, however, that any such calculations represent a gross misreading of the meaning of Labor history; and equally, a misreading of the character and aspirations of the overwhelming majority of the supporters of the Liberal Party – or the Sydney Institute. It is true that White Australia was the fundamental plank in the platform of the Labor Party from its foundation more than a century ago. It is also true that it was enshrined in legislation by the first Federal Government under Barton and Deakin. Even in 1942, Curtin used the curious expression “the British-speaking peoples” to define the Allied cause. These are facts of our history. But the great matter of pride for us all is the way in which an undeniably racist society has been transformed in the last third of this century, under successive governments. To defend and advance this remarkable Australian achievement involves no re-writing of history, and no stifling of dissent. It does involve standing up for Australia’s deepest and most abiding interests.

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