I saw it all – Sir John Kerr’s move strengthened democracy

The action of the governor-general resolved an administrative gridlock and political stalemate.

The first thing to be said about the Dismissal is that it was not something that happened on a single day. It was a series of decisions, actions and events that occurred over a period of almost nine weeks. My role on Malcolm Fraser’s staff meant I was a participant in many of those events or a close first-hand observer.

The start was the decision by the opposition parties on October 15, 1975, to refuse to pass the supply bills through the Senate. Their intention was to force the government to resign and to hold an election for both houses of parliament. The conclusion of these events was that an election was indeed held, on December 13, at which a Coalition government was elected with the largest majority ever recorded: 91 seats to 36, a majority of 55. The Coalition also won a clear majority in the Senate.

What happened during these weeks came to be described as a constitutional crisis, but this was a misnomer. It was a political upheaval, not a crisis affecting the Constitution.

The Dismissal resolved a political stalemate and administrative gridlock, not in the way some people liked but in a manner that did not involve the use of military force or damage the institutions of the federal government. It is properly termed the Dismissal and should not be called a constitutional crisis.

Prime ministers need to deal with – or avoid – political crises all the time. Gough Whitlam totally failed to manage this one.

During the weeks leading to the Dismissal there was a great deal of public argument, with extensive media reporting and commentary. There were many private meetings and discussions.

The governor-general, Sir John Kerr, took advice from the chief justice, Sir Garfield Barwick, and another High Court judge, Sir Anthony Mason. Many people – politicians, journalists and others – took sides.

Prime Minister Malcolm Fraser, Governor-General Sir John Kerr and Deputy Prime Minister Doug Anthony leaving Government House in Canberra after the swearing in of Malcolm Fraser’s cabinet in November 1975. Picture: National Archives of Australia

Since 1975 there has been a very large amount of published analysis of what happened at the time of the Dismissal. Much of that analysis has been valuable; some of it less useful. Many facts have been put on the public record, but some myths have also become part of folklore.

Fifty years later, it is useful to review what is fact and what is myth, and to make some comments after the passage of time. Some facts and myths have become tangled and need to be unravelled.

The first myth is that the Coalition set out to have the prime minister dismissed by the governor-general.

As stated above, what they wanted was an election. Whitlam could have called that election, at which he would have campaigned as incumbent prime minister. It was his decision not to do so.

The immediate trigger for the opposition’s decision came on October 14 with the resignation, forced by the prime minister, of minerals and energy minister Rex Connor for his attempts to raise funds for the government from a dubious foreign intermediary. An untrue statement about these activities had caused the prime minister to mislead parliament.

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Since becoming opposition leader in March 1975, Fraser had repeatedly been asked if the opposition would use its Senate majority to force the resignation of the government. His invariable response was that this would happen only in “reprehensible circumstances”.

Now these circumstances had arisen.

As the “crisis” progressed, Whitlam proposed to resolve the situation by calling a half-Senate election, which he hoped would provide public endorsement of his position.

The opposition’s view was that a half-Senate election would be inadequate because of a change in the composition of the Senate that was about to take effect. The new territory senators from the ACT and the Northern Territory could distort the composition of the Senate until the following July 1. It was this possible distortion that concerned the opposition.

While the opposition’s rejection of a half-Senate election was firm, it was the Connor resignation that was the determining factor in the decision to block supply and to force an election for both houses of parliament.

A key fact is that it was not Fraser who broke with convention in blocking supply. The ALP had voted in the Senate to oppose “measures of an economic of financial nature, including taxation or appropriation bills” on 169 occasions between 1950 and 1970, according to a list tabled by senator Lionel Murphy in 1970.

Malcolm Fraser, Sir John Kerr and Doug Anthony in 1975.

In the same year Whitlam stated in parliament that “any government which is defeated by the parliament on a major taxation bill should resign”.

In 1974 the Whitlam government had done just that. In April 1974 the opposition flexed its muscles in the Senate; Whitlam advised the governor-general to call a double dissolution, which saw him re-elected. There had been a somewhat similar case in Victoria in 1947, when the upper house blocked a state budget. Premier John Cain went to an election, which he lost.

In 1975 it was Whitlam who broke with convention by trying to continue to govern without having funds for expenditure authorised by parliament.

Some myths started circulating very early during the period that led to the Dismissal. At least two of them encouraged Whitlam to continue on his course of holding on to government without supply.

One myth was that Coalition members were “about to crack”. It is true that members and senators were uneasy. Their electors were telling them that they wanted to see the situation resolved. With the exception of senator Alan Missen, they held very firm. I saw this first hand. Fraser was an outstanding leader, and he and his senior colleagues held the Coalition members and senators together throughout the whole period.

I might say that Fraser’s staff, and the staffs of his colleagues, never had any doubts about the course we were following.

The second myth was that Fraser had been admonished by the governor-general. During the period of political confrontation Kerr called in the two leaders, Whitlam and Fraser, separately, on several occasions.

Dale Budd, former private secretary to Malcolm Fraser. Picture: Supplied

The first such occasion for Fraser was on October 21. I recall Fraser heading into this meeting not knowing what to expect. He returned relieved, telling his staff that the governor-general had mainly listened. No doubt Whitlam had the same experience. But the story was put out that Kerr had scolded Fraser. Such a report, which had no basis in fact, gave unfounded reassurance to Whitlam.

Another myth is that the Dismissal came like a bolt from the blue. When it came it was a surprise to many people, including Whitlam and his supporters, but in fact the possibility of this action was widely known. Shadow attorney-general Bob Ellicott publicly stated on October 16 that Kerr would have a duty to dismiss Whitlam if he attempted to remain in office without supply. A dismissal should have remained an active possibility in the minds of those involved in events as they unfolded.

Yet another myth is that the Dismissal affected the way the Fraser administration behaved – the way it governed – while in office. Some commentators, and indeed some insiders, have claimed that the Dismissal cramped the style of the government. I disagree. I had no sense of any such inhibition.

The Fraser government was conscious of its huge majority and did not want to appear to be throwing its weight around. It could have done more between 1975 and 1980 when it had a Senate majority, but because of this caution it failed to do so. It is worth remembering that even with a majority in both houses, our federal system means that a commonwealth government does not have unfettered power.

Fifty years on, three aspects remain valid issues for discussion.

1 Would the opposition have done better if it had not blocked supply, instead letting Whitlam govern until the next election was held? Most likely the Coalition would have won the next election and Labor would have returned to the opposition benches without Whitlam becoming a martyr. Would this have made a difference to the course of history? Probably negligible. Fraser went on to win two more elections, and the factors that led to his defeat in 1983 had nothing to do with the events of 1975. But those who have been obsessed by the Dismissal for 50 years would have been denied the cause they have cherished.

Was Fraser given an unfair advantage over Whitlam by being phoned on the morning of November 11 by the governor-general about the terms of a possible caretaker government? Picture: National Archives of Australia

It has to be said that this is a theoretical suggestion that was not really an option at the time. The political temperature in 1975 was so high that the opposition had no practical alternative but to block supply. The government was a slow-moving train wreck. Treasurer Jim Cairns had tried to seek loans from overseas through an unlikely intermediary; Connor had done the same. In both cases normal processes had been bypassed. Parliament was twice misled and both had to resign. The abrupt departure of deputy prime minister Lance Barnard, appointed as ambassador to Sweden in mid-1975, had been followed by a by-election with a spectacularly bad result for the government; the seat of Bass was lost with a 17 per cent swing.

After becoming opposition leader Fraser was repeatedly asked by the media: Was the latest event “sufficiently reprehensible”? Not to have acted on October 15 would have destroyed his credibility.

2 The second and more interesting question is: Should Kerr have warned Whitlam that if he continued his course in October 1975, he would be dismissed? Kerr was advised to give a warning, not least by High Court justice Mason.

This question has been thoroughly canvassed. Kerr did not do so because he feared he would be dismissed himself. Whitlam claimed later that he never seriously contemplated such an action, but he certainly joked about the possibility, and that was enough to alarm the governor-general. The prime minister had the power to dismiss him by recommending that action to the queen, and such dismissal could take effect almost instantaneously.

Kerr’s fear of dismissal was real. Whitlam’s statements and correspondence show that it was at least a possibility, although earlier in the political stalemate rather than later. In the event, Whitlam did contact Buckingham Palace shortly after he was dismissed (at 4.15am London time), seeking to be recommissioned as prime minister, but it was too late.

It is interesting to note that in 1932 NSW governor Sir Philip Game warned premier Jack Lang that he would have to sack him, before he took this action. The circumstances in 1932 were very different from those of 1975.

One wonders if some protection could be devised for a vice-regal representative contem­plating a dismissal, enabling them to issue a warning without prejudicing the security of their office.

Such a provision would enable them to avoid being placed in a position, real or perceived, of deceiving a prime minister or premier. It is easy to conceive of such protection but much harder to define a legal provision that would not upset the basis on which vice-regal representatives are appointed and hold office. The issue of the lack of a warning remains real after 50 years. Should there be another equivalent situation, it would again be an important decision for the governor-general.

3 A third and less important question is: Was Fraser given an unfair advantage over Whitlam by being phoned on the morning of November 11 by the governor-general about the terms of a possible caretaker government?

Fraser was warned of what might be about to happen while Whitlam was not. The call gave Fraser a couple of hours’ notice, during which he could plan what had to be done later in the day.

His first action after being appointed caretaker prime minister was to tell his senators to pass the supply bills, clearing the way for the dissolution of parliament shortly afterwards.

Whitlam was confounded by Kerr’s action. He went to lunch and neglected to tell ALP senators what had happened. If they had known of the Dismissal they could likely have delayed the passage of the supply bills, thereby delaying the dissolution of parliament. This would not have affected the eventual outcome.

One can only conclude that although Kerr’s call gave Fraser a minor tactical advantage, Fraser had long been alert to the possibility of the Dismissal while Whitlam had ignored it.

The most important reflection on the Dismissal is this. Did it threaten democracy? Or did it affect it? No. On the contrary, it strengthened it.

The Dismissal was a blunt instrument but it demonstrated that a government cannot spend money without the authorisation of parliament. And it was a reminder to both sides of politics that this kind of brinkmanship had its consequences. The events of 1975 have not been repeated or threatened in the past 50 years.

There have been many elections since 1975. Prime ministers and governments have come and gone, as have governors-general. It is clear that democracy has flourished.

A final point. Attitudes can change in 50 years. Later in their lives, after politics, Whitlam and Fraser became friends. They were both big men, in their thinking as well as physically. They would meet from time to time to talk. According to The Sydney Morning Herald, they were bound together in shared agreement that their old parties had moved away from what they had once believed, and what they still believed.

When Whitlam died in 2014, Fraser was quoted as saying: “I valued my friendship with him. He always had an independent mind … He was a very important person in Australia’s life. Whether one’s a great proponent of Gough or an opponent, he was a very great Australian who contributed enormously to this country.”

It is a great thing that these two men, once political opponents, found common ground.

Dale Budd was Malcolm Fraser’s chief of staff between 1970 and 1971, when Fraser was defence minister, and between 1975 and 1978, when Fraser was prime minister of Australia.