Warriors still maintain rage

• by: Troy Bramston
• From: The Australian
• October 15, 2012 12:00AM

NEARLY 40 years after governor-general John Kerr dismissed the Whitlam government, Graham Freudenberg -- Gough Whitlam's speechwriter, adviser and confidant -- is still angry. 

But now his anger is tempered by regret and quelled by the revelations in Kerr's papers confirming the dismissal was conceived in deceit and executed by ambush. "It is my great regret," Freudenberg tells me for this column, "that in all the speeches and statements I drafted for Gough during the crisis, I didn't write something about the governor-general's role in our system of government. If I had, it may have influenced the way Kerr acted."

David Smith, the governor-general's official secretary, who read the proclamation dissolving parliament on the steps of Parliament House, drawing the crisis to a close, confirms via correspondence that he remains steadfast in his view that Kerr acted correctly in discharging his responsibilities.

Last week's three-part series on the Kerr papers -- unpublished handwritten notes, typed memos, correspondence and a secret journal co-written with Paul Kelly and published in The Australian -- has generated a strong response from several important figures involved in Australia's greatest political crisis. Kerr feared being replaced by a compliant governor-general who would follow the prime minister's wishes. He believed this was Whitlam's "strategy".

He told Buckingham Palace of this fear. However, he was counselled that the Queen would follow Whitlam's advice. He used this knowledge to keep his thoughts and plans secret from Whitlam. Kerr told the palace that Whitlam was an inflexible and unreasonable man. He canvassed dismissal before November 11. Later, he justified his actions by arguing Whitlam was planning to remove him.

He also told opposition leader Malcolm Fraser that he feared recall and that he would consider using the reserve power of dismissal. For Fraser, whose strategy was based on Kerr acting to resolve the crisis, this was valuable information. Fraser denies being told this. But after this discussion with Kerr, he argued publicly that Kerr had an independent role to play and he would accept Kerr's decision if he intervened. "The prospect of recalling Kerr was never on our mind," Freudenberg says. "We never canvassed recall because we never calculated that Kerr would act deceitfully."

Whitlam maintains that if he had recalled Kerr, he would be as vilified as the governor-general later was.
Kerr reveals -- a fact not disclosed until this column -- that it was Fraser who urged him to read a legal opinion written by Liberal MP Bob Ellicott. That opinion argued Kerr should use the reserve power to dismiss Whitlam. Fraser organised for Kerr to get a copy of the document.

Freudenberg regrets that Whitlam never strongly countered the Ellicott view, which was being advocated by Fraser to Kerr, with a different interpretation of the governor-general's powers. "In speeches, I avoided the argument about an independent role for the governor-general because Kerr had never indicated to Whitlam that he thought there was an independent role," he says.

Arguments on the reserve powers prepared by solicitor-general Maurice Byers were largely left out of the prime minister's speeches. Attorney-general Kep Enderby delivered to Kerr what was supposed to be a joint opinion between him and Byers urging caution in exercising the reserve powers. But when he presented it to Kerr, he did not sign it, scrawled "draft" across the top and crossed out Byers's signature. "There was no joint opinion," Smith insists, "and in reality there was no opinion at all given to the governor-general."

Kerr, who had firm views about the reserve powers, sought advice and assurance elsewhere. He describes an influential "arch of advice". High Court judge Anthony Mason was the "keystone", who counselled Kerr extensively in secret. The arch included Ellicott and chief justice Garfield Barwick, who gave Kerr formal advice on the reserve powers.

Kerr's papers implicate another High Court judge, Ninian Stephen, as a party to the dismissal. Kerr writes that Stephen knew of the dismissal in advance and sighted Barwick's advice. Stephen denies this."If these judges were convinced of the integrity and propriety of their actions, then why didn't they reveal their role at the time?" Freudenberg asks. Given many of Kerr's confidants, like himself and Whitlam, came from the Sydney Bar, Freudenberg says: "The Sydney Bar did over one of their own."

The Kerr papers reveal a second crisis in the afternoon of November 11, which threatened to unravel the dismissal. Before Kerr dissolved parliament for an election, Clarence Harders, the secretary of the Attorney-General's Department, questioned Kerr's exercise of the reserve powers given that the house had voted no-confidence in Fraser. A week later, Harders eyeballed Kerr and told him the dismissal was unjustified.
"Harders the private person and Labor supporter may not have approved of the dismissal," Smith says, "but in the afternoon of November 11, Harders the law officer advised that what the governor-general was doing in dissolving parliament and ordering an election was lawful. Harders changed his mind between November 11 and November 17, but never said why."

Earlier, in the Senate, supply was passed. A note prepared by the Senate liaison officer outlines how, if Labor did not move that supply be passed, it could have been delayed until the following day. This would mean Fraser had failed to fulfil the terms of his commission as caretaker prime minister. If Whitlam had thought about contingency planning in the event of dismissal or had acted quickly on November 11 to consider what actions he could take to thwart Kerr, the dismissal could have unravelled that afternoon. But Whitlam misjudged the nature of the crisis. He misread Kerr's psychology. He did not counter Fraser's political strategy. He undertook no contingency planning. And, when there may have been an opportunity to undo the dismissal that afternoon, he did nothing.

"We were like stunned mullets," Freudenberg concedes. "We were completely useless. We didn't pay any attention to the Senate. We should have been considering our options." The crisis was as much about the Constitution and convention as it was about personalities, politics and power. For the ageing warriors of the dismissal, the controversy of Remembrance Day 1975 will never fade.
                                      _______________  |  ______________