By Dr George Venturini
1. A cast of characters
John Robert Kerr
John Robert Kerr was born in 1914 in Balmain, then a working-class suburb of Sydney. He was the son of Harry, a boiler-maker and Laura (née Cardwell), housewife. He went to high school in Sydney, won scholarships to the University of Sydney and graduated in law with first class honours and the University Medal, and was called to the New South Wales bar in 1938.
He became a protégé of Dr. H. V. Evatt, distinguished jurist and future judge of the High Court of Australia, the third President of the United Nations General Assembly from 1948 to 1949, when he helped to draft the Universal Declaration of Human Rights; Leader of the Australian Labor Party (and Leader of the Opposition) from 1951 to 1960; and Chief Justice of New South Wales from 1960 to 1962.
During the second world war, he was able to join the Directorate of Research and Civil Affairs, an Australian ‘intelligence’ organisation – a circumstance which later gave rise to many speculations. On demobilisation with the rank of Colonel in 1946, he became principal of the Australian School of Pacific Administration and the first Secretary-General of the South Pacific Commission.
He gained the reputation for being a former (?) ‘intelligence’ officer; the circumstance would lead some to believe his role in the dismissal was part of an ‘intelligence’ conspiracy.
Kerr returned to the bar in 1948, becoming a prominent lawyer representing trade union clients and a member of the Labor Party. He intended to seek Labor endorsement for a parliamentary seat at the 1951 election, but withdrew in favour of another candidate. In 1955, at the heights of the so-called cold war, the Labor Party split, everywhere in Australia, except in New South Wales. Kerr appeared disillusioned with party politics. He seemed to dislike what he saw as the leftward trend of Labor and to be attracted to the breakaway group, the Democratic Labor Party, which was fanatically anti-Communist.
During the decade of the 1950s, he joined the anti-Communist advocacy group established by the United States’ Central Intelligence Agency, the Association for Cultural Freedom, joining its Executive Board in 1957.
A Queen’s Counsel in the 1950s, in the 1960s Kerr became one of Sydney’s leading industrial lawyers.
Expert in navigating the narrows of the legal profession in Australia, in 1966 Kerr was appointed a judge of the Commonwealth Industrial Court and, later, to several other judicial positions. During this period his political views became more conservative. He became a friend of Sir Garfield Barwick, the ‘Liberal’ Attorney-General who became Chief Justice of the High Court of Australia in 1964.
Barwick’s true fame remains attached to several infamous cases on tax avoidance and tax evasion, almost always deciding against the taxation office. Led by Barwick himself in most judgments, the High Court subtly distinguished between avoidance – legitimately minimising one’s tax obligations, and evasion – illegally evading obligations. The decisions effectively nullified the anti-avoidance legislation and led to the proliferation of avoidance schemes in the 1970s – a result which drew much criticism upon the Court. (G. Venturini, ‘The Anglo-American ambush of the Whitlam Government – 11.11.1975 (Part 4)’,11 November 2015, theaimn.com).
By 1965 Kerr signalled a change in his political persuasion when he held talks with John Carrick, a leading member of the Liberal Party in Sydney, on the possibility of his standing as a Liberal candidate in the State election.
In and out of ‘intelligence’ organisations, Kerr became the first chairman of the Law Association for Asia and the Western Pacific – LawAsia, founded in 1966, and served in that position until 1973. In time LawAsia was to be unmasked as a C.I.A. agency.
In 1972 Kerr was appointed Chief Justice of New South Wales. He was knighted in the New Year’s Honours of 1974, and on 27 February of that year, amidst some surprise, was announced as Governor-General-designate.
As time would show, Whitlam had made a gigantic mistake in proposing Kerr, although neither man knew the other well.
Whitlam’s first choice had been that of Mr. Ken Myer, a well-known businessman and respectable citizen. But Myer declined. So Whitlam offered the post to Mr. Justice Kerr (as he then was), who accepted on condition that he could expect to have ten years in the office, and that he could represent Australia overseas as Head of State. Discussions commenced in September 1973. Kerr was announced as Governor-General-designate on 27 February 1974, by which time he had become Sir John Kerr, something which mattered very much to a populace of colonial habits.
The knighthood meant nothing to Whitlam, who most likely was concerned with finding a figurehead, one who would meet the acceptability of the haute bourgeoisie of Melbourne, Sydney and elsewhere. Knights have always been a target of laughter in proletarian pubs, but always of preferred selection and respect in the Philistine society which deals in business and assigns the levers of power.
On the other hand it is possible that Whitlam saw some kind of new Falstaff primarily a comic figure, who would embody a kind of depth common to Shakespeare’s major characters – a fat, vain, boastful, and cowardly knight, who would not mind spending most of his time drinking at the Boar’s Head Inn, associating with war criminals, corporate criminals, assorted parasites living on other people’s money. Whitlam, a fine arts connoisseur – at home with Shakespeare as with Verdi, might have thought of Falstaff, but one may wonder whether he knew that Verdi had contemplated a Cola di Rienzo.
Not to worry: Kerr had been knighted in the New Year’s Honours of 1974, on the advice of the Premier of New South Wales, Sir Robert Askin, a person of notorious corruption.
Whitlam had declined to endorse his predecessor William McMahon’s recommendation for that honour, that Hasluck had wisely held back pending the outcome of the December 1972 election.
In time Kerr would publicly display his immoderate drinking habits, and it was more than rumoured that he had a proclivity for traversing accepted sexual customs towards the young male flesh – only the reservedness of his hosts in Kuala Lumpur, Malaysia, at the first Lawasia convention in July 1968 spared Kerr what otherwise would be considered a scandal. But nothing spared him when he got so drunk at the Legal Convention held at the then Lakeside Hotel in Canberra in July 1975 that he proceeded to vomit on some of the guests who were being introduced to the Governor-General. Both qualities – a taste for young male flesh and passion for alcohol, somehow tolerated in Sydney’s ‘high life’, were frowned upon and would become the source of ridicule in a Governor-General, who was as s/he is by law the representative of the Hanoverian queen.
As for politics, Kerr had maintained his ambivalence by cultivating some prominent Labor people, and exploited his first wife’s friendship with Whitlam’s wife. Kerr’s wife Alison ‘Peggy’ Worstead was a fellow student of Margaret Whitlam during university days. In 1938 Kerr had married ‘Peggy’, with whom he had three children.
In the early seventies 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. Of the consequences of such a mistake, more will be said further on.
Kerr did not know Whitlam well, although they had shared legal chambers some years earlier, but he had remained friends with several ministers in Whitlam’s government, such as Jim McClelland and Joe Riordan. Whitlam trusted the view of some colleagues.
On 11 July 1974 Kerr was appointed by Queen Elizabeth II as Australian Governor-General.
Perhaps at this point, a short note on the Australian Constitution may help to clarify the legal position.
Australia’s political system is based on the ‘Westminster System’ as imposed by the invasion of the continent in 1788. ‘Westminster’ is the name given to ‘the system’ of parliamentary democracy used in countries such as Great Britain, Canada, Australia and New Zealand. It should immediately be noted that parliamentary does not necessarily mean representative democracy, which is fundamentally: one head, one vote, one value. The essential features of ‘The System’ are that the government is chosen by the democratically elected lower house. The government requires the continuing support of a majority of members of that chamber to stay in office; the head of government is the prime minister, who leads a Cabinet which is responsible to the lower house; a loyal Opposition exists, led by the leader of the party or parties with the second largest number of seats in the lower house; a constitutional monarch is part of the framework of ‘the system’, is supposed to be ‘above politics’ and to act on the advice of the prime minister; a career public service impartially serves the government of the day; the armed services are outside of politics and act on the instructions of the government; and – finally but most importantly – the ‘rule of law’ prevails, with an independent judiciary, subject to the constitution.
In brief, the ‘Westminster System’ is otherwise known as ‘responsible government’. Many assumptions are made in that formula.
In particular, Australia has a second chamber of Parliament, known as the Senate, the members of which represent the states of the Commonwealth, in fulfilment of the concept of federalism.
It is more than a matter of curious interest that the name of ‘The System’ derives from the London municipality of Westminster, which is home of the Houses of Parliament. The House of Commons and the House of Lords both meet in the Palace of Westminster. They are all based in the City of London, which is a city within London itself, colloquially known as the Square Mile – precisely 1.12 sq. mi. or 2.9 square kilometres.
Both of these terms are also often used as metonyms for the United Kingdom’s trading and financial services industries, which continue a notable history of being largely based in the City. The City is now only a tiny part of the metropolis of Greater London, though it remains a notable part of central London. It holds city status in its own right and is also a separate ceremonial county. The local authority for the City, namely the City of London Corporation, is unique in Great Britain and has some unusual responsibilities for a local council, such as being the police authority. It is also unusual in having responsibilities and ownership beyond its boundaries. The Corporation is headed by the Lord Mayor of the City of London, an office separate from, and much older than, the Mayor of London.
The City is a major business and financial centre. Throughout the nineteenth century, the City was perhaps the world’s primary business centre, and it continues to be a major meeting point for businesses – top in the Worldwide Centres of Commerce Index. The insurance industry is focused around the eastern side of the City. A secondary financial district exists outside of the City, at Canary Wharf, 2.5 miles or 4.0 kilometres to the east. The City has a resident population of about 7,000 but over 300,000 people commute to and work there, mainly in the financial services sector. The legal profession forms a major component of the northern and western sides of the City, especially in the Temple and Chancery Lane areas where the Inns of Court are located, of which two – Inner Temple and Middle Temple – fall within the City of London boundary. It makes it for the heart of Big Business, Great Britain and a dying Empire. Representative of that vanishing power in Australia is the Governor-General, appointed by the Hanoverian queen – to whom, alone, s/he owes her/his unquestionable loyalty. The Governor-General is only theoretically an ‘apolitical’ figure of position without power.
The Constitution, an Act of the Imperial Parliament, assigns to the Governor-General a number of specific functions. S/he represents the queen – sec. 2; appoints sitting times for Parliament, as well as being responsible for its prorogation and dissolution – sec. 5; appoints sitting times for Parliament, as well as being responsible for its prorogation and dissolution; may accept resignations of Senators and advise State Governors of such vacancies – secs. 19 and 21; may dissolve the House of Representatives – sec. 28.
With the Executive Council, the Governor-General may issue writs for House of Representatives elections – sec. 32, and may issue writs for by-elections for the House of Representatives – sec. 33.
The Governor-General can accept the resignation of the Speaker of the House of Representatives – sec. 35, and may accept resignations of members of the House of Representatives – sec. 37. S/he administers oath or affirmation of allegiance to members of the House of Representatives – sec. 42; recommends the appropriation of revenue or moneys to the Parliament – sec. 56; and may dissolve both houses of parliament in the event of a deadlock between them – sec. 57.
The Governor-General may assent, or withhold assent, to laws passed by Parliament, or reserve laws for the royal assent, or return laws to the Parliament recommending amendments – sec. 58. Should the sovereign disallow any law, or assent to a proposed law reserved for her pleasure, the Governor-General may by speech or message notify Parliament of her decision – secs. 59 and 60.
By section 61 the Governor-General exercises the executive power of the Commonwealth; by sections 62 and 63 s/he chooses and summons members of the Executive Council to hold office during his pleasure and to advise him in the government of the Commonwealth.
The Governor-General may appoint officers (the word minister is nowhere mentioned in the Constitution!) to ‘departments’ of State, such officers holding office during her/his pleasure – sec. 64. S/he may decide the number of such officers (ministers) of State, in the event of no provision by Parliament – sec. 65.
With the Executive Council, s/he appoints civil servants – sec. 67; and appoints Justices of the High Court, and also receives their resignations – sec. 72.
By section 68 the Governor-General is Commander in chief of the naval and military forces of the Commonwealth.
Under section 126 s/he may appoint person or persons to be her/his deputy or deputies, exercising such powers as s/he assign, subject to limitations or directions given by the queen.
Finally, by section 128, the Governor-General may submit a referendum proposal passed by only one house of parliament. S/he also gives assent to referendum results.
Most of these powers are exercised by the Governor-General on the advice of her/his ministers, through the prime minister of the day.
Even the word prime minister appears nowhere in the Constitution.
Those powers relating to the dissolution of parliament and the appointment of ministers are known as unwritten reserve powers and are the subject of convention – and controversy. Conventions ‘underpin’ the operation of the Australian Constitution and the Executive Government. A convention is an unwritten rule, not a law. It is an accepted way of doing something – ‘a gentleman’s way’. The ‘Westminster parliamentary system’ is built around these kinds of unwritten rules. Thus, whilst some sections are adhered to literally – and scrupulously, others operate by accepted practices – as defined, or violated, from time to time!
Continued Saturday – A cast of characters: John Kerr (part 2)
Previous instalment – The five pillars of financial crime (part 3)
Dr. Venturino Giorgio Venturini devoted some seventy years to study, practice, teach, write and administer law at different places in four continents. He may be reached at George.email@example.com.
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