In a letter to The Bulletin magazine in May 1993, Whitlam gave this account of the events of November 11:
Laurie Oakes (Bulletin, 11 May) challenges my memory and account of the events of 11 November 1975. The events took less than four hours. Your readers can readily check the sequence and times from the Hansard of that day and the official House of Representatives Practice (October 1981 and September 1989).
About 10 a.m. I ‘phoned Sir John Kerr for an appointment to advise him to call a half-Senate election. We agreed to meet when the House of Representatives rose at 1 p.m. At Government House at 1.01 p.m. Kerr, without discussion, handed me the letter of dismissal from which Oakes quotes. At 1.30 p.m. Kerr swore in Malcolm Fraser as Prime Minister.
At 2.34 p.m. Fraser informed the House of his appointment. He quoted his own letter to Kerr:
…In accepting your commission I confirm that I have given you an assurance that I shall immediately seek to secure the passage of the Appropriation Bills which are at present before the Senate.
I interjected “They have been passed.” Fraser continued to quote from his letter to Kerr:
… I further confirm that, upon the granting of Supply, I shall immediately recommend to Your Excellency the dissolution of both Houses of this Parliament.
Fraser then told the House:
Under the terms of the double dissolution the Bills that are in a double dissolution position will all be cited in that double dissolution.
At 3 p.m. I moved:
That this House expresses its want of confidence in the Prime Minister and requests Mr Speaker forthwith to advise His Excellency the Governor-General to call [Whitlam] to form a government.
The House carried the motion by 64 votes to 54 and the sitting was suspended from 3.15 to 5.30.
In appointing Fraser as Prime Minister Kerr knew that Fraser could give an assurance that the Senate would immediately pass the Appropriation Bills; the bills had been blocked in the Senate in accordance with an announcement by Fraser on 15 October.
Kerr, however, did not realise that the House of Representatives would immediately reject his appointment of Fraser. The Senate passed the Appropriation Bills at 2.23 p.m. and the House expressed no confidence in Fraser 50 minutes later. Kerr’s plot had miscarried.
Kerr decided to defy the House. He made an appointment for Speaker Scholes to see him at 4.45, an hour and a half after the sitting was suspended. In the meantime he procured Fraser’s signature, at 4.30, to a proclamation dissolving both Houses. Scholes arrived at the gates of Government House at 4.35. When the gates were opened for Kerr’s secretary to leave with the proclamation for Parliament House, Scholes was admitted.
As the sole grounds for the double dissolution the proclamation listed 21 other bills which the Senate had twice rejected. The grounds were doubly deceptive. Kerr knew that Fraser had promoted the rejection of the bills and that Fraser, if he won the election, had no intention of reintroducing the bills.
Oakes quotes Kerr. He goes on to describe the use of the 21 bills as “a technical means”; “they were relevant only because Kerr tried to be fair”. When Oakes’ memory was clearer he wrote of Kerr:
He treated the House of Representatives with contempt … He justified all this in a poorly argued statement which was both misleading and dubious in law. The way he carried out the Remembrance Day operation – cunningly and ruthlessly luring Whitlam into a well-prepared trap – showed purposeful, deliberate and thorough planning.
Later he describes Kerr’s conduct as “deceitful, particularly in a representative of the Crown”. The quotations come from his 1976 book, which he asked me to launch.
In the next few years, as Australia moves from a monarchy to a republic, the events of 11 November 1975 will often be quoted as an example of “the reserve powers” of a head of state. To quote Oakes again:
The most recent example of a British monarch dismissing a Prime Minister had occurred in 1834 when William IV dismissed Lord Melbourne.
The vice in the Australian monarchy is that the monarch plays no part. Scholes, who continued as Speaker, wrote to the Queen on 12 November 1975. On 17 November the reply came:
The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution.
When faults are exposed in the Constitution they can be removed by the electors at a referendum. The Senate was able to postpone votes on the Appropriation Bills because a Liberal Premier of New South Wales on 27 February 1975 and a National Party Premier of Queensland on 3 September 1975 sponsored non-Labor replacements for Labor senators elected on 18 May 1974. On 21 May 1977 the electors in all States, by a total of 5 477 771 votes to 1 992 963, altered the Constitution to ensure that a vacancy in the Senate should be filled by a person belonging to the same party to which the former senator belonged at the time of his election.
Similarly, the electors can alter the Constitution to ensure that no Governor-General or President can use “reserve powers” in a way that the Queen would never have acted and that none of her predecessors had acted for 141 years.
This article appears on the website of the Whitlam Institute.
