Lawyer and administrator, born in Sydney, New South Wales, SE Australia. He studied at the University of Sydney, was admitted to the bar in 1938, and became a QC in 1953. He was made Chief Justice of New South Wales in 1972, and was appointed Governor-General of Australia in 1974. In 1975, his actions as governor-general made Australian constitutional history: the Coalition opposition had refused to pass the Labor government's budget bill unless a general election was called. To resolve this impasse he exercised the regal reserve powers and sacked the elected prime minister, Gough Whitlam, asking leader of the Liberal opposition, Malcolm Fraser, to form a caretaker government and call a general election. Stepping down as governor-general in 1977, he was named Australian ambassador to UNESCO in 1978, but the ensuing controversy forced him to resign without taking up the appointment.
| The Rt Hon Sir John Kerr | |
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| 18th Governor General of Australia | |
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In office 11 July 1974 – 8 December 1977 |
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| Preceded by | Sir Paul Hasluck |
| Succeeded by | Sir Zelman Cowen |
| Born |
24 September 1914 Sydney |
| Died |
24 March 1991 Sydney |
The Rt Hon. Sir John Robert Kerr, AK, GCMG, GCVO (24 September 1914 - 24 March 1991), 13th Chief Justice of the Supreme Court of New South Wales and 18th Governor-General of Australia, dismissed the Labor government of Gough Whitlam on 11 November 1975, marking the climax of one of the most significant constitutional crises in Australian history.
Kerr's career
Kerr was born in Balmain, a working-class suburb of Sydney, where his father was a boiler-maker.
Kerr returned to the bar in 1948, becoming a prominent lawyer representing trade union clients and a member of the Australian Labor Party.
In the 1960s Kerr became one of Sydney's leading industrial lawyers and a QC.
In 1966 Kerr was appointed a Judge of the Commonwealth Industrial Court, and later to several other judicial positions.
Kerr was appointed Chief Justice of New South Wales in 1972. Kerr did not know Whitlam well, but he had remained friends with several ministers in Whitlam's government, such as James McClelland and Joe Riordan. Whitlam seems to have believed that because of Kerr's former membership in the Labor Party he was still politically "reliable," without realising that Kerr's political views had changed and that he had come to see the role of Governor-General differently from Whitlam. Shortly after Kerr took office his wife died.
Kerr as Governor-General
The Whitlam Government had won a second term in May 1974, but failed to win control of the Senate, where the balance of power was held by two independents. Kerr disagreed fundamentally with this view, arguing the Constitution very clearly set out the Governor-General's powers.
Kerr had made a study of the reserve powers through his earlier professional relationship with Evatt, the author of the standard work on the reserve powers as they applied to the British Dominions, The King and His Dominion Governors (1936). Kerr was familiar with this book, and re-read it before accepting Whitlam's offer of the Governor-Generalship. Kerr took an activist view of the role of Governor-General.
The 1975 crisis
In October 1975 the Liberals used their Senate majority to defer voting on the supply bills until Whitlam agreed to hold an election for the House of Representatives, and a political crisis resulted.
Opposition backbenchers began calling on Kerr to dismiss Whitlam during October: it is not clear if they had Fraser's approval for these remarks. Whitlam said later that he intended these remarks to protect Kerr, by making clear his view that the Governor-General had no power to intervene. But Kerr apparently saw them as an attempt to intimidate him, and also as expressing a view of the reserve powers that he did not share.
Kerr saw himself as an active player in the unfolding political drama. On 30 October he proposed a compromise solution to Whitlam and Fraser, which would have in effect meant a backdown by Fraser, but Fraser rejected this. On 2 November Fraser offered to pass the budget if Whitlam would agree to call an election before the middle of 1976, but Whitlam in turn rejected this. It appears that Kerr, on the basis of discussions with Fraser, had a hand in this proposal, and that he thought it a reasonable compromise. When Whitlam rejected it, it seems, Kerr decided that Whitlam was being intransigent.
Kerr's personal relationship with Whitlam by this stage was not strong, he had been upset by suggestions that the Federal Executive Council had acted improperly during the Loans Affair, and moreover he was suspicious that if Whitlam knew he was contemplating dismissing the Government, he (Whitlam) would react by immediately advising the Queen to dismiss Kerr instead. Whitlam for his part assumed with characteristic confidence that Kerr was in full sympathy with the Government's position and would do nothing to act against him. He therefore made no effort to convince Kerr of the validity of his position and did not think to consult with him during the crisis.
The dismissal
Kerr had another meeting with Fraser (with Whitlam's approval) on 6 November. At this meeting Fraser increased the pressure on Kerr, advising him that the Opposition would not back down and would not accept any compromise, and warning him that if he did not take action against Whitlam then the Opposition would begin to make direct public criticism of him, for having "failed in his duty." Fraser urged Kerr to bring about an election before the end of 1975. Fraser privately told journalists after this meeting that he was certain that Kerr would dismiss Whitlam.
On 9 November Kerr consulted the Chief Justice of the High Court of Australia, Garfield Barwick. Kerr asked Garfield to advise him on whether he had the constitutional power to dismiss Whitlam, and Barwick advised him, in writing, that he did. Since the advice Barwick gave Kerr became central to subsequent events, it is important to note that this advice was entirely informal and personal. The High Court does not issue advisory opinions, and in any case Kerr did not consult the court as a court, only the Chief Justice. Whitlam later claimed he specifically prohibited Kerr from seeking advice from Barwick;
Kerr appears to have made up his mind on 9 November to dismiss Whitlam. He did not advise Whitlam that this was his intention, indeed actively concealed his intention from Whitlam and his ministers. His justification for this was that he feared that Whitlam would advise Queen Elizabeth II (Australia's head of state) to terminate Kerr's commission as Governor-General if he gave any warning of his intention. In acting in this way, Kerr ignored the most recent precedent, that of Sir Philip Game, the Governor of New South Wales who in 1932 dismissed Jack Lang's government.
On the morning of Tuesday 11 November, Whitlam phoned Kerr and arranged to see him in the afternoon, after the Remembrance Day ceremonies. He intended to advise Kerr to call an immediate half-Senate election as a means of breaking the deadlock. After this conversation Kerr phoned Fraser and (according to Fraser's recollection) asked him whether, if he was commissioned as Prime Minister, he would
Pass the budget bills, Call an immediate double dissolution election for both houses of Parliament, Make no appointments, initiate no new policies and conduct no inquiries into the previous government, before such elections.In his memoirs, Kerr denied making this phone call to Fraser, but Fraser has been adamant in all subsequent accounts that he did. This means that Fraser knew that Kerr intended to dismiss Whitlam, but Whitlam did not. Kerr and Fraser had in effect entered into a conspiracy to deceive the Prime Minister. In an article in Quadrant Magazine (March 2005, Volume 49, Number 3) Smith (the closest to what could be considered and independent observer) asserted that Whitlam knew of Kerr's intentions, the Queen had already made her position of non-intervention known to Whitlam and Kerr, and Kerr had called a double dissolution in order to be fair to both candidates, sincerely beleiving that Whitlam could win back goverment with the necessary majority in both houses. Whitlam and Kerr met alone in Kerr's study, and each has given different accounts of what was said. This seems to be the most likely scenario: Whitlam began to tender his advice to Kerr that there be a half-Senate election. Kerr interrupted him and asked him directly whether he was prepared to advise an immediate House of Representatives election. When Whitlam answered "No," Kerr advised him that he was terminating his commission, and handed him a letter to that effect. From that moment Whitlam was no longer Prime Minister, and could take no action to frustrate Kerr's intention to commission Fraser and call an immediate double dissolution.
When Whitlam had left, Kerr summoned Fraser and again asked him the questions he had (according to Fraser) put to him on the phone that morning. When Fraser again answered affirmatively, Kerr then commissioned him as Prime Minister, and Fraser then immediately advised Kerr to dissolve the Parliament and call a double dissolution election for 13 December, which Kerr then did.
Kerr later put forward five propositions to justify his actions:
The Senate had the right under Section 53 of the Constitution to block supply. Over the following weeks Kerr was the subject of intense denunciations by angry Labor supporters, led by Whitlam who made a series of eloquent speeches attacking Kerr. In retrospect Whitlam's decision to focus his attack during the campaign on Kerr rather than on the Liberal Party was seen by Labor strategists to have been a mistake.Kerr gained vindication of a sort when Fraser won an overwhelming victory in the December elections. Since Whitlam had campaigned almost exclusively on the issue of the iniquity of Kerr and Fraser in plotting the downfall of his government, he could not then deny that the election results represented an endorsement by the electorate of Kerr's actions.
For the rest of his term as Governor-General Kerr was rarely able to appear in public without encountering angry demonstrations against him. Fraser offered Kerr a post as ambassador to UNESCO, an offer which he subsequently withdrew under public pressure. After leaving office Kerr lived mainly in Europe until his death in Sydney in 1991.
Further reading
John Kerr, Matters for Judgement, Sun, 1979 Gough Whitlam, The Truth of the Matter, 1979 Paul Kelly, November 1975, Allen and Unwin, 1995| Government Offices | ||
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Preceded by: Sir Paul Hasluck |
Governor-General of Australia 1974–1977 |
Succeeded by: Sir Zelman Cowen |
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