Kerr, Whitlam and the Supremacy of the Parliament

Peter O’Brien

In a recent piece in The Australian, concerning the proposition in the 1970s that the then Prince Charles might become Governor-General of Australia, Paul Kelly made the following observation concerning the dismissal of Gough Whitlam by Sir John Kerr:

Kerr always knew the prime minister had the constitutional power to remove him.

Certainly, both Kerr and Whitlam believed this. And technically it is probably correct, but the only constitutional force it has is by virtue of convention. That possibility was a major concern for Sir John Kerr and was the main reason he never explicitly warned Gough Whitlam that he might be dismissed. My belief is that he thought this would be a provocative move and, furthermore, he believed that it was unnecessary because Whitlam himself had adverted, on a number of occasions, to this possibility. The most notable of these came during a State dinner at Yarralumla to honour Malaysian Prime Minister Tun Adbul Razak, Whitlam famously said that events might come down to a race to the Palace.

Kerr wanted to avoid this, not only because he did not relish being sacked, but because he was determined that Her Majesty should not become embroiled in a political crisis in Australia.

The first point to make is that the Prime Minister did not have the power to remove Kerr. The most he could do was to recommend to Her Majesty that she withdraw Kerr’s commission. Whitlam told Professor David Flint, well after the dismissal, that this could be done by simply recommending a new Governor-General. It would be up to the Queen to accept or reject this recommendation.

Kerr was alive to this possibility and prior to the dismissal he asked his Official Secretary, David Smith, to sound out the attitude of the Palace on this issue. Sir Martin Charteris, the Queen’s Official Secretary at the time, advised Smith that a telephone call from Whitlam would not suffice and that a written case would have to be made, but in the end Her Majesty would have to act on Whitlam’s advice.

I am not a lawyer, and I am going to go out on a limb here. I am going to suggest that Kerr, Whitlam and Charteris all got it wrong. If not in practice, then, at least, in theory or logic.

In my book Villain or Victim – a defence of Sir John Kerr and the reserve powers, I argue that the Governor-General is analogous to a regent. A regent is someone who is monarch in all but name, such as the future King George IV when, as Prince of Wales, he exercised all the royal prerogatives that then remained to the Monarch, during the debilitating mental illness of his father King George III.

Section 61 of our Constitution states that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative.’ There is no caveat to this provision. This means the Monarch has no power that he/she may exercise in Australia, other than appointment and removal of the Governor-General (which is covered in Section 2). The Governor-General is the Monarch’s representative, but he is not his/her deputy. In 1953, Neville Shute published a novel, In the Wet, which postulated that Britain abolished the monarchy and the new Queen Elizabeth came to live in Australia. If that were to happen today, King Charles III would have no powers other than those that derive from Section 2.

In the Westminster system there is a convention that ‘the Crown acts on the advice of its Ministers’. This refers only to matters of government policy, legislation, regulation and so on. It is upon this convention that Charteris based his belief that the Queen would ultimately have had to acquiesce in Whitlam’s demand (had it been made) that Kerr be recalled. I would argue that the Prime Minister of Australia has no such relationship with the Monarch. The only person to whom he can give advice that must be accepted, i.e., advice relating to government policy legislation etc, is the Governor-General.

There is nothing in the Constitution about the appointment or removal of the Governor-General. And neither is there any mention of the office of Prime Minister. Section 64 of the Constitution stipulates that Ministers of State are appointed by the Governor-General and hold office during his pleasure. This is the reserve power which allowed Sir John Kerr to constitutionally withdraw the commission of Gough Whitlam as Prime Minister.

The appointment of a Governor-General is not the gift of the Prime Minister. By convention in Australia, it is the Prime Minister who recommends a person to the Monarch to be his/her representative. Once that recommendation is accepted, the future of the Governor-General is the sole province of the Monarch as Section 2 states:

A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign him.

In my view, a recommendation to the Monarch to terminate a Governor-General can only be based on the premise that he/she is no longer a fit person to represent the Monarch, for example through incapacity or malfeasance. There can be no justification for a Prime Minister to arbitrarily, and self-interestedly, recommend recall of a Governor-General, particularly while he/she is in the process of executing Constitutional prerogatives that may impact the Prime Minister him/herself. The Governor-General is duty bound to uphold the constitution. In 1975, Whitlam was intending to flout the Constitution either by governing without Supply (defaulting on government payments) or by spending money that had not been properly appropriated by Parliament.

I may be wrong in law in my contention above, but I believe my logic is correct.

The Glorious Revolution of 1688 established the doctrines of Parliamentary Supremacy and responsible government. The government (the Executive) is responsible to Parliament. It was Parliament that dispensed with the services of Charles I. It was Parliament that restored Charles II and eventually replaced James II with William and Mary. It was Parliament that determined in 1936 that Edward VIII could not marry Wallis Simpson and remain King.

It was Parliament that Whitlam was defying in 1975. It was Whitlam who threatened the doctrine of responsible government, not Kerr, as Paul Kelly claims. Like it or not, the Senate had, and still has, the power to block Supply. The Chief Justice of the time, Sir Garfield Barwick, held that denial of supply was the Senate’s vote of no confidence in the government. In his view, and that of others, this meant that Whitlam had either to offer his resignation or advise an election.

The fact that Sir John Kerr feared that Whitlam would recommend his recall to the Palace constrained him from explicitly warning he would act on his reserve power were his hands to be forced. This failure, or discretion as I prefer to call it, is the only substantive criticism that can be levelled at Sir John.

That could have been avoided if the threat of arbitrary removal had not hung over Kerr’s head. A recommendation for recall of the Governor-General should only be made by Parliament and only for reasons of incapacity or malfeasance. Certainly not because the government of the day finds him/her troublesome.

That could be legislated today. You might argue that a Governor-General immune to the government of the day, might feel empowered to exercise his/her reserve powers capriciously. To which I would respond that we would have to rely upon the integrity and discretion of the Governor-General, the integrity of the Parliament itself and a convention or legal provision that the Governor-General should take independent advice, possibly from the Chief Justice.

Peter O’Brien’s latest book, Villian or Victim? A defence of Sir John Kerr and the Reserve Powers, can be ordered here