By Dr George Venturini
As already noted, the Australian Constitution makes no mention of the prime minister, of ministers, of the Cabinet, or political parties. There is no rule which says that the Prime Minister must be a member of the House of Representatives. A literal reading of the Constitution suggests that the Governor-General runs the government.
When the Governor-General is a person of honour there are no problems which cannot be solved in free, open and cordial discussion; otherwise one encounters the most dishonourable abuses of the Constitution as it happened in November 1975.
On a literal reading, Section 64 of the Constitution states: “The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.”
In practice, the Prime Minister is the person who leads the party with the majority in the House of Representatives, and the ministers are chosen by the Prime Minister who advises the Governor-General of the names and portfolios to be allocated to them.
It was this section of the Constitution that Governor-General Kerr abused to dismiss the Whitlam Government in 1975, secretly and deceitfully. This is the only instance in Australian federal political history of the Governor-General exercising the so-called reserve powers in this way. Such powers are un-codified and are quite ‘flexible’, for want of a better word.
As far as his position in ‘the system’ – the Westminster System – Kerr might have been self-impressed by the importance and consequences of his oath of allegiance to the monarch. An affirmation may suffice but is no less important.
In Australia such an oath is required to be made to the monarch of Australia – who resides in London. This is the very first oath by any governor-general; that of loyalty to the people of Australia comes second – almost as if it were of secondary importance.
In several sections of the Australian Constitution the Governor-General’s powers and role are expressed.
Notably, Section 2 provides that:
“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 to him.”
Does this mean that the relationship is the same as that of a principal and agent?
Additionally and importantly, Section 61 of the Constitution provides that:
“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
In addition to being The Queen’s representative in Australia, the Governor-General also has specific constitutional and statutory powers. In fact, since the passage of the Australia Act in 1986, the only action performed by The Queen under the Constitution is the appointment of the Governor-General, on the advice of the Australian Prime Minister.
In 1975 the then Commonwealth Solicitor-General, Mr. – later Sir – Maurice Byers Q.C. gave the following legal opinion in relation to the powers of the Governor-General:
“The Constitution binds the Crown. The Constitutional prescription is that executive power is exercisable by the Governor-General although vested in The Queen. What is exercisable is original executive power: that is, the very thing vested in The Queen by Section 61. And it is exercisable by The Queen’s representative, not her delegate or agent. The language of Sections 2 and 61 had in this respect no contemporary parallel…”
In other words, the Constitution does not describe the Governor-General’s power, it prescribes it. (‘Governor-General’s Role | Governor-General of the Commonwealth of Australia …, ’ Last updated 13 June 2017).
In addition, all members of the Australian Parliament are required to make, before taking their seat in Parliament, an oath or affirmation of allegiance to the monarch before the Governor-General of Australia. The requirement to take the oath is set out in section 42 of the Australian Constitution and the wording of the oath and affirmation are set out in the Schedule to the Constitution. The oath is: “I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. So help me god!”
The affirmation is similar: “I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law”.
For “A.B.” is to be substituted the name of the person swearing or affirming. The Schedule provides that for the reference to Queen Victoria is to be substituted the name of the current monarch of the United Kingdom.
So, those who profess themselves to be republican, either commit perjury in pectore, as it were, or ‘walk on both sides of the fence’ with sovereign indifference to what they are saying.
One example of such easy prêt-à-porter attitude will be seen shortly.
On 9 September 1974 ‘Peggy’ died after a long illness, aged 59. In April 1975 Kerr married Annie Dorothy Robson, née Taggart, who had recently divorced her first husband, Hugh Robson Q.C., a New South Wales judge and former colleague of Kerr’s. Through her, Kerr acquired two stepchildren.
Whitlam and others later accused the second Mrs. Kerr of having played a Lady Macbeth role in the crisis which would develop in November – an accusation that Kerr and his wife deeply resented.
During the seventies Kerr had been busy piling up acronyms after his name: already a C.M.G. – Companion of the Order of St. Michael and St. George since 1 January 1966, on 1 January 1974 he was made a K.C.M.G. – Knight Commander of that order. In 1974 he was made a Knight of the Order of St. John of Jerusalem. On the establishment of the Order of Australia on 14 February 1975 as governor-general Kerr was made A.C. – Principal Companion of the Order.
Kerr thought of himself as ‘a better one’ and took up wearing striped trousers and a top hat!
When the category of Knight was added by the usurper Fraser to the Order on 24 May 1976, he was made A.K. – Principal Knight of the Order. In 1976 also Kerr became G.C.M.G. – Knight Grand Cross of the Order of St. Michael and St. George – G.C.M.G. He had asked Whitlam for this appointment shortly after becoming Governor-General in 1974, but was rebuffed; it was Labor Party policy not to recommend knighthoods.
On 30 March 1977, already a publicly disgraced and abused figure of fun, Kerr was appointed G.C.V.O. – Knight Grand Cross of the Royal Victorian Order, an award within the personal gift of the Sovereign, for well deserved ‘services as Governor-General’. The award was made by the Queen during an official visit to Australia, and was conferred on board the Royal Yacht Britannia in Fremantle Harbour.
He was appointed as P.C.- Privy Counsellor in 1977 on the instigation of Malcolm Fraser, no doubt for good service as governor-general. This was another appointment he had unsuccessfully sought from Whitlam in 1974. The formal recommendation went through the United Kingdom Prime Minister James Callaghan, who felt unable to support Fraser’s other recommendation, that Kerr be elevated to the peerage.
When Kerr attended the 1977 Melbourne Cup it was almost exactly two years since he had dismissed the Whitlam government. He was dapper in a three-piece suit, and he appeared awfully drunk.
His obvious inebriation, combined with his thicket of white hair and his studiously aristocratic bearing, made him seem more suitable for a Palace courtier position than as the holder even of a governor-generalate.
The crowd hissed as he swayed through his speech. Defensively he proclaimed: “Any little noises that you may happen to hear are only static.” he proclaimed. “It’s just something wrong with the system. … Cheers from a small minority! However, life is wonderful for all of us.”
In the memory of those few in Australia who remember anything, Kerr would remain associated with Malcolm Fraser’s opprobrium in Whitlam’s words at the official announcement of the Royal Ambush in 1975: “Kerr’s cur.”
Following the Ambush, public reaction to Kerr was generally hostile. He announced his decision to retire at the end of 1977.
Early the following year the Fraser government announced that Kerr would be appointed Ambassador to U.N.E.S.C.O., but hostile public reaction caused Kerr to relinquish the appointment.
As any good Englander who can afford it would, Kerr went ‘home’ – London, of course.
He also moved there to escape the frequent public abuse, and in London, according to historian Phillip George Knightley, he “could be seen most days, usually the worse for wear, at one or other gentleman’s club.”
He died in 1991.
Much has been written on the so-called crisis, to which reference was made before as the Royal Ambush.
If this may seem partisan – and there is nothing wrong with that – perhaps the views of more conservative writers may help.
Some documents released many years later indicate that Hasluck and senior officials at ‘the Palace’, and by implication the Queen, shared the view that, while Kerr had the constitutional right to act as he did, he should have handled it more skilfully in order to achieve a political solution and avert a constitutional crisis.
In a manner which would later be regarded as contravening the doctrine of the separation of powers, he had relied heavily on Mason’s confidential discussions, Barwick’s written advice, and the opinions of some legal authorities, instead of seeking counsel from previous governors-general or other non-judicial sources.
Kerr claimed that he had used his ‘reserved powers’. And what are they?
In the colonial fog, the meaning, extent and application of ‘reserved powers’ would be left to sound judgement and moral decision – qualities both conspicuously absent in Kerr’s personality and behaviour.
Kerr argued that his action protected the Queen – and this appeared of paramount importance to him – from involvement in an Australian political crisis, but others concluded that he “should have spoken frankly with his Prime Minister from the start … [and] should … have warned wherever and whenever appropriate.” (P. Kelly and T. Bramston, The Dismissal: In the Queen’s Name, Penguin Random House, Melbourne, 2015, at 301).
In 1977, in discussion with the Queen’s private secretary, Hasluck said: “If … Kerr had been diligent and attentive to the duties of his office, [and] … had established in Whitlam’s mind some greater respect for the office of Governor-General and … greater confidence in his [Kerr’s] own trustworthiness and wisdom, there would never have been a crisis.” (G. Bolton, Paul Hasluck: A Life. Crawley, WA: University of Western Australia, 2014, at 464-5).
Perhaps, in considering Kerr’s life and career one should not incommode great writers, such as Shakespeare. It does not matter that Kerr rose from working-class roots. His rising to the summit of the legal profession was based on considerable legal, political, administrative, ‘diplomatic’ ability – nut more importantly his dexterity with salamelecchi (an Italian word which actually comes from the Arabic As-salāmu alaykumi – a greeting which means “peace be upon you”). It is not complimentary and could be rendered into English as ‘bowing and scraping.’ Kerr did that with considerable energy, dedication and success.
By the time he became governor-general, his ambition, vanity, and search for honours, and life-style had overcome his sense of duty, and his good judgement. Caught between two practitioners of politics – albeit substantially different in quality – Whitlam and Fraser, and certainly of different moral stature, (John Malcolm Fraser was born in affluent Toorak, Victoria, in a family of the squattocracy – a bilge of privilege, naturally to be enriched by speculation and defended in politics) Kerr failed to give the strong leadership that the situation required. Had he shown greater moral courage from the outset, he might well have averted the crisis which divided the nation, possibly damaged the office of governor-general, and most certainly and fatally undermined his own reputation.
How did Kerr see his duties? How did he see his position vis-à-vis the monarchy? Did he identify with ‘The Family’? With ‘The Firm’? It is hard to say conclusively.
After the Royal Ambush Kerr explained that Whitlam represented ‘something that perhaps I might have been, had I stayed in the party as he did.’ What he meant is this: John Kerr dreamed of becoming prime minister. (‘John Kerr ‘dreamed of becoming PM’, Daily Telegraph, 6 April 2013).
There is a view that the Ambush was as much a case of a thwarted ego seeking his place in history, despite the adverse circumstances of the time, and as victim of the unfounded accusation that Whitlam mismanaged the economy.
After Kerr’s death, his former close friend, but later deeply embittered Senator James McClelland, who had been a cabinet member, claimed that Kerr had long aspired to be “top dog in Australia”; that Kerr had once made a pass at him; and that the dismissal – particularly the way it developed – could only be fully understood if Kerr’s alleged repressed homosexuality was considered: an infatuation with Whitlam had become one for Fraser. (Australian Biography, Series 4: James McClelland, Film Australia, Director: Frank Heimans, 1995; P. Adams, ‘Hidden Identity’, The Australian, 25 November 2006).
Suppositions did not help Whitlam.
Maybe there is a simpler, yet more prosaic explanation of the events: by calling Fraser “Kerr’s cur” – apart from the appreciation of the first moment, Australians thought that Whitlam had been ‘rude’, in the sense of ill-mannered, discourteous, or insulting. As any ‘ordinary’ Australian would say: “Bloody hell, he was rude to the Queen, rude to the Governor-General and rude to the Prime Minister.” The press – particularly that of Rupert Murdoch – did not help. Australians – at least those who were born here, with all the implied advantages – have a special meaning for words such as ‘loyalty’ and ‘respectability’.
Just about from the original occupation, to be ‘middle-class’ (and most Australians see themselves as ‘middle-class’) and to be recognised as ‘respectable’ has been a burning aspiration. Yes, only recently it has become a sign of social distinction to have descended from a convict. But not many Australians have bothered about such new fashion. Fewer most surely have read Shakespeare, or would be familiar with Falstaff. And anyway, that would be theatre. And that is what Whitlam played with that memorable ‘lack of respect’.
The result is that Whitlam might have been funny, at that moment, but was later seen as rude to the Prime Minister, and to the Governor-General – who represents the Queen. Come to think of it: Whitlam was rude to the Queen. That is an unpardonable offence, and to a largely non-religious populace almost an unpardonable sin.
Loyalty to a distant, foreign monarch is at the top of that preoccupation for ‘respectability’. And that is also the measure of real-Australians’ Philistinism.
On 5 September 2008 Ms. Quentin Alice Louise Bryce, née Strachan, took the oath of loyalty to the Queen. It had a particular significance, in that she was the first to break the chain of males at Yarralumla. She said the words: “I, Quentin Alice Louise Bryce, do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law. So Help Me God!” (Commonwealth of Australia, Gazette S181, 10 September 2008).
Ms. Bryce would hold office to 28 March 2014. She was the first woman to have held the position, and was previously the Governor of Queensland from 2003 to 2008. Presumably she had taken a similar oath for that position.
In November 2013 Ms. Bryce delivered the annual A.B.C. Boyer Lecture. Still the governor-general, Ms. Bryce stated that she would like to see an Australia where: “people are free to love and marry whom they choose […] And where perhaps, my friends, one day, one young girl or boy may even grow up to be our nation’s first head of state.” (‘Governor-General Quentin Bryce backs gay marriage, Australia becoming a republic in Boyer Lecture,’ A.B.C. News, 22 November 2013).
Her comments drew severe criticism, not merely for their support of a republic while still serving as the Queen’s representative, but because the role is supposed to be strictly non-partisan – where the key-word is ‘supposed’.
Apart from leftovers of English invented but now sclerotic ‘traditionalism’ and middle-class ‘respectability’, there is often a preoccupation with ‘the rules’ – that hardly anybody knows correctly. But it does not matter.
The governor-general of the banana monarchy – a terribly insecure sycophant of a man, plagued by fear for his past connections with ‘Intelligence’ agencies, both within and outside Australia, and by his recurrent battle with alcohol which since his appointment in July 1974 had already necessitated at least two un-publicised recoveries into hospital for detoxifications, who was rumoured to have ‘indifferent sexual tastes’ and to have consumed ‘young flesh contacts’ as recently as the Lawasia conference at Kuala Lumpur in 1968 – had looked at ‘the rules.’ And he found that Whitlam had not played by them – heaven knows how and why. As said, it did not matter: Kerr had read ‘the rules’ and decided what they entailed.
If such was a conclusion, it was coming from a sovereignly indifferent populace, not well known for reading and reflecting – and rather uncaring to understand. They are stupid – stupid in the famous words by John Cleese, the English actor and comedian:
“I think the problem with people like this is that they are so stupid that they have no idea how stupid they are.
You see, if you are very, very stupid how can you possibly realise that you are very, very stupid? You would have to be relatively intelligent to realise how stupid you are.
There is a wonderful bit of research piece by a guy called David Dunning at Cornell, who is a friend of mine I am proud to say, who has pointed out that in order to know how good you are at something requires exactly the same skill as it does to be good at that thing in the first place, which means, this is very funny, that if you are absolutely no good at something at all then you lack exactly the skill that you need to know that you are absolutely no good at it.
And this explains not just Hollywood but almost the entirety of Fox News.”
Continued Wednesday – A cast of characters: The Monarchy (part 1)
Previous instalment – A cast of characters: John Kerr (part 1)
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.firstname.lastname@example.org.
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