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Sir John Kerr was an eminent lawyer. He was the 13th Chief Justice of the Supreme Court of New South Wales and the 18th Governor-General. He is best known for being the controversial figure at the centre of the dismissal of the Labor government of Gough Whitlam on 11 November 1975, an event which sparked the most significant constitutional crisis in Australian history. On that day Kerr dismissed Prime Minister Whitlam and appointed Malcolm Fraser to form a caretaker government, pending elections. The dismissal was the most dramatic event in the history of Australian federal politics.
For the first time since Federation, the unelected representative of the Queen had removed a government which commanded a majority in the House of Representatives. The Dismissal, as it is known, remains a highly controversial event in Australian political history. Kerr was born in 1914 in Balmain, a then working-class suburb of Sydney, where his father was a boiler-maker.
After studying at Fort Street High School he graduated in law from the University of Sydney and became a barrister in 1938.
At Fort Street, Kerr met Dr H V Evatt, later to become a High Court judge. As a prominent lawyer, Kerr was known for representing trade union clients and had strong ties to the Australian Labor Party. At one stage, in the 1950s, he even intended to stand for parliament as a Labor candidate. In the 1960s Kerr was promoted to other judicial positions (as well as working for a government intelligence agency), and in this period his political leanings became more conservative.
He became close with Sir Garfield Barwick, the Liberal Attorney-General who had become the Chief Justice of the High Court in 1964. Kerr was appointed Chief Justice of New South Wales in 1972, and when Sir Paul Hasluck retired as Governor-General in July of 1974, Prime Minister Whitlam recommended to the Queen that Kerr take up the position.
It has been said that Whitlam seemed to have faith in Kerr’s political reliability due to his former membership in the Labor Party. However, Kerr’s political views had changed over time and he had come to see the role of governor-general in a different way from Whitlam. The Whitlam Labor Government had come to power in December 1972 after 23 years of Liberal/Country Party coalition rule. Campaigning on the slogan ‘It’s Time’, the ALP seemed to have the support of the nation, although in reality their margin of victory was relatively narrow. Whitlam was the first of a new type of Labor prime minister. He put in place a number of progressive legislative proposals, implementing free education policies, reaching out to Asia and breaking with the US on foreign policy. His approach, however, did meet with some resistance.
The Senate, with great determination opposed and rejected some of Whitlam’s key legislative proposals. This included Bills designed to institute a free health insurance system; to provide Senate representation for the Australian Capital Territory and the Northern Territory; to reform the organisation of electorates; and to allow the government to oversee the mining of oil and minerals. The repeated rejection of Whitlam’s bills led to the calling of a ‘double dissolution’ election, in which all members in both Houses are up for re-election. A political ‘scandal’ also forced the election. Prior to the double dissolution election, Whitlam maneuvered to create an extra Senate vacancy in Queensland by offering a sitting senator, Vince Gair, an ambassadorship. Whitlam hoped Labor could win the vacant seat and take control of the Senate.
The so-called ‘Gair Affair’ infuriated the Opposition, who threatened to ‘block supply’ in the Senate, which meant exercising its power to reject or defer appropriation or ‘money bills’. It is a constitutional necessity that the government be allocated money by the parliament through the passing of annual appropriation bills. These bills give the government the money it needs to govern the country and to run parliament for the financial year. In response to these blockages and hoping to secure his position with a strong re-election, Whitlam went to the then Governor-General Hasluck, and gained the double dissolution election which was held in May of 1974. The Whitlam government was re-elected, although with a reduced majority, and the Senate continued to present an obstacle the agenda of the government. During 1975, the Government also was involved in the ‘Overseas Loans Affair’. The Whitlam government had a number of plans it needed funded.
These included the construction of a natural gas pipeline, the electrification of interstate railways and a uranium enrichment plant. Some of Whitlam’s ministers seeked to raise an overseas loan of $4 billion to fund these projects, but rather than go to the usual American and European sources, they seeked financing from the oil-rich Middle East. A Pakistani broker was used to secure the loan and the entire process was considered questionable by members of the government, media and public. In the end, no loan was ever gained and no broking commissions paid, but Whitlam’s government was made to look reckless and foolish. In the face of economic difficulties and the political impact of the Loans Affair, Whitlam remained vulnerable throughout 1975. After a series of resignations in 1975, Opposition Leader Malcolm Fraser announced that the Opposition would use its numbers in the Senate to block supply until Whitlam called another election.
Whitlam refused, and this confrontation was followed by several weeks of constitutional crisis, which raised a number of crucial questions about Australian democracy and the roles of the House of Representatives and Senate in the Australian system. Governor-General Kerr took an active interest in the crisis and became convinced of the need to dismiss Whitlam from office. In a later statement, Kerr said he believed that it was the democratic and constitutional solution to dismiss a prime minister who could not guarantee ‘supply’ and to let the Australian people decide the conflict. Kerr sought the advice of his friend Chief Justice Barwick, who endorsed the legality of the action on Monday, 10 November 1975. On Tuesday 11 November 1975 (Remembrance Day), Whitlam proposed calling a half-Senate election, but the Governor-General rejected this proposal and instead, officially dismissed Whitlam from power. Fraser was asked to step in as a ‘caretaker’ prime minister.
A double dissolution election was held on 13 December of that year. Although the House of Representatives passed several motions of confidence in the Whitlam Government and instructed the Speaker, Gordon Scholes, to send this message to Kerr, the governor-general was steadfast in his decision. Scholes subsequently wrote to the Queen, who replied that there was no place for her involvement or interjection in an internal Australian political conflict. At the 13 December election, Fraser’s Liberal-National coalition was elected with a large margin. For Whitlam’s supporters the events of November 1975 were shocking and an abuse of the governor-general’s power. In Kerr’s statement of reasons for the dismissal, he made the case that he was simply doing his job to uphold democracy, stating that ‘The decisions I have made were made after I was satisfied that Mr Whitlam could not obtain supply. No other decision open to me would enable the Australian people to decide for themselves what should be done’.
In the wake of the Dismissal, Kerr remained a controversial figure for the rest of his life. Due to a public problem with drinking he was later forced to resign as the Australian Ambassador to UNESCO (United Nations Educational, Scientific and Cultural Organization). He lived in England for some years and died on 7 April 1991. After another defeat in 1977, Whitlam resigned from parliament. Malcolm Fraser went on to be Prime Minister for almost eight years until his defeat by Bob Hawke in 1983. The Dismissal remains a controversial subject in the history of Australian politics, and is particularly relevant to happening debates about Australia becoming a republic and further empowering the Head of State. The constitutional and political effects of the Dismissal remain of importance to anyone interested in Australian politics and the structures of power in Australia.
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