EVIDENCE, MEMORY AND THE DISMISSAL

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the-dismissal

The Dismissal: In The Queen’s Name

by Paul Kelly and Troy Bramston

Viking, 2015
ISBN: 978 0 670 07920 9
RRP: $39.99

dismissal sybil nolan cover

The Dismissal: Where were you on November 11, 1975?
edited by Sybil Nolan

MUP, 2005, second edition 2015
ISBN: 0 522 85199 1
RRP:$ 29.99

dismissal jenny hocking cover

The Dismissal Dossier: Everything you were never meant to know about November 1975
by Jenny Hocking

MUP, 2015
ISBN: 978 0 522 86918 7
RRP: $ 16.99

 

Reviewed by Gerard Henderson

Not much has happened in Australian national politics since Federation in 1901. No war of independence, no civil war, no political assassinations. It’s been relatively quiet on the political home front – except for Governor-General Sir John Kerr’s decision to dismiss Gough Whitlam’s Labor government on 11 November 1975. Liberal Party leader Malcolm Fraser was commissioned to head a caretaker government pending a double dissolution election on 13 December 1975 – which the Coalition won with the biggest majority in the modern era.

So it came as no surprise that the fortieth anniversary of The Dismissal saw the publication of two new books – one by journalists Paul Kelly and Troy Bramston and one by academic Jenny Hocking. A collection of essays edited by journalist Sybil Nolan on the thirtieth anniversary was re-published with a new foreword.

Paul Kelly and Troy Bramston have been admirers of Gough Whitlam – albeit not uncritical ones. The Dismissal: In The Queen’s Name is critical of the three key players in the event – but the authors maintain that the final responsibility for the outcome can rest only with Kerr as governor-general. This substantial, and well researched book, is a credit to two journalists who have busy day jobs at The Australian.

Jenny Hocking is an academic who has not worked in, or near, government. In recent decades, she has become the taxpayer funded biographer of such leftist heroes as Gough Whitlam (two volumes), Lionel Murphy and Frank Hardy. Dr Hocking has carried the flag for the Whitlam government over the years – following Whitlam’s evocation of four decades ago that his supporters should “maintain the rage” against The Dismissal.

And then there is Sybil Nolan. Her edited collection The Dismissal: Where were you on November 11, 1975? is the fairest account of The Dismissal since it presents a plurality of views. In his chapter in this collection, Gerard Henderson cited a letter published in The Age on 4 December 1975 by Hugo Wolfsohn (a professor of politics at La Trobe University) and Rufus Davis (a professor of politics at Monash University). Both men were Jewish Australians of European background who knew a crisis when they saw one. In their letter, Wolfsohn/Davis hit out at the left’s hyperbolic stand taken on The Dismissal:

We wish to express concern about current pronouncements by academics in the newspapers, as media commentators or authors of handbills and pamphlets circulating in tertiary institutions. Alarming statements about a “crisis in Australian democracy”, the “end of Australian democracy” abound, not to mention the more dramatic allegations of a “coup d’etat” by the Governor-General and the comparisons with Chile and the rise of Hitler.

Australian democracy is neither in crisis nor has it come to an end. Coups d’etat are not usually followed by elections and the learned comparisons with Chile and Nazi Germany, offered by “professional” historians and other “experts’, would be merely comic were it not for the fact that these people are occupying responsible teaching positions in our universities.

The good news is that practical commentators like Kelly and Bramston have come to accept this view. In the Epilogue of The Dismissal: In The Queen’s Name they write:

Contrary to many dire predictions, the political, parliamentary and constitutional system recovered and proved its resilience. None of the major powers exercised has been cancelled. The Senate can still block or reject supply bills. The governor-general can still dismiss a prime minister. A High Court chief justice can still furnish the governor-general with advisory opinion.

In other words, as Wolfsohn and Davis predicted, The Dismissal did not result in a crisis in Australian democracy. The Coalition won the early election of December 1975 – which had the effect of cutting Labor’s expected term of office by about 18 months (since Labor would surely have lost the election scheduled for around May 1977). Labor, under Bob Hawke’s leadership, was back in office by March 1983 – thus restoring the normal political balance in Australia.

While Kelly/Bramston have accepted that Australia’s political system survived the shock of 11 November 1975, Dr Hocking – from the bowels of Monash University and with the support of many taxpayer funded handouts from the Australian Research Council – is still maintaining the rage. Her latest book contains a hyperbolic endorsement by author Anna Funder:

The Dismissal Dossier is shocking, compelling, and profoundly important. It is a constitutional horror story, in which democratic process is the victim, and the perpetrators got away with it. Jenny Hocking’s impressive research and analysis should dispel a forty-year fiction perpetrated on the Australian public: that the Prime Minister didn’t have a political solution, and that Sir John Kerr acted alone. Instead, Kerr acted with the foreknowledge and implied consent of the Queen, and in concert with the Chief Justice of the High Court of Australia, another High Court Judge and the Leader of the Opposition to oust a democratically elected government. That these actors in the drama were able to conceal the true history is shocking. Hocking’s book is an important reminder about the vulnerability of democratic process, a revelatory account of the events of 1975 and, hopefully, a wise contribution for when we draft the constitution of the Republic of Australia.

Anne Funder writes fine novels. But she is out of her depth when it comes to Australian political history. In fact, there is nothing new in The Dismissal Dossier – which is only to be expected since the matter has been researched and written about for four decades. As Kelly/Bramston document, there is no evidence that The Dismissal had the consent of Elizabeth II – implied or otherwise. Nor is there anything new in the comment that the then Chief Justice Sir Garfield Barwick and the then High Court Justice Sir Anthony Mason advised Kerr about The Dismissal.

In her introduction, titled “Uncovering A Hidden History”, Hocking makes the following comment about her earlier book Gough Whitlam: His Time.

The revelation about the role of Sir Anthony Mason, first published in Gough Whitlam: His Time in 2012, was just one of several defining aspects of the dismissal of the Whitlam government that had been variously overlooked, concealed, or simply forgotten as the history took shape. A powerful mix of political imperative, historical amnesia and deliberate distortion had generated lasting confusion and ignorance about some of the most critical elements. Without them, our knowledge and understanding of the dismissal remains incomplete.

This is simply incorrect. As Kelly/Bramston acknowledge:

It was Sir Garfield Barwick who first revealed Mason had a role in the dismissal in an interview with Bruce Donald on the ABC in January 1994. Gerard Henderson soon after disclosed that Kerr had told him some years earlier than he had sought Mason’s advice prior to the dismissal, and that they had engaged directly.

Sir Anthony Mason’s involvement in The Dismissal was first revealed by Gerard Henderson in an article in the Sydney Morning Herald on 8 January 1994 – over two decades ago. It is true that full details were not exposed until Jenny Hocking reported in detail on the Kerr Papers, which were deposited in the National Archives of Australia. But Henderson did point out in his SMH column that Kerr regarded Mason’s advice as more significant than that professed by Barwick. So Hocking’s claim in The Dismissal Dossier that in 1994 Mason’s role was still seen as “relatively minor” before the publication of her book Gough Whitlam: His Time simply does not stand up.

It seems that leftist academics like Hocking did not take up the story about Mason two decades ago because he was regarded as a progressive chief justice presiding over a progressive High Court – who was much admired by Gough Whitlam, among others.

The Dismissal Dossier is a naïve book. Hocking seems unaware that some politicians – like some academics – do not tell the truth. Moreover some politicians – like some academics – have memories of events that never happened.

In building her case against Sir John Kerr, Hocking is prepared to accept the accounts/recollections of everyone who is useful to her thesis – despite the lack of supporting evidence. It is widely known that former Liberal Party prime minister Malcolm Fraser and William McMahon were consistently untruthful.

Yet Hocking accepts, without question, what Fraser told one-time Labor front bencher Clyde Cameron in an interview conducted for the National Library of Australia in 1987. She also accepts what Liberal Senator Reg Withers (who fell out with Fraser) told Cameron about Fraser and Kerr in 1995. Interviews given on the understanding that they will not be made public until after the interviewee’s death are worthless as historical accounts – since there is no way of subjecting the person concerned to cross-examination. Both Fraser and Withers spoke to Cameron many years after 1975 – and Fraser always acknowledged his memory was “notoriously fallible”.

Also, Hocking accepts what the notoriously untruthful McMahon said in 1979 that he told Kerr in 1975. Again, this is useless – since there is no evidence to support McMahon’s account.

The point of the Fraser and Withers quotes was to support Hocking’s case that Kerr tipped off Fraser in advance of his intentions to dismiss Whitlam. The point of the McMahon reference was to indicate that there was opposition to blocking supply within the Liberal Party room.

The truth is that Hocking believes what she wants to believe. Even to the extent, at times, of even making things up. For example, Hocking refers to an “elaborate lunch” which Kerr and Barwick had at Admiralty House on 10 November 1975. How does she know it was elaborate?

Then Hocking asserts that, on the day of The Dismissal, Kerr “drank gin and tonic” before lunch and “consumed large amounts of alcohol” at lunch. She then describes him as “obviously drunk”. It is not at all clear who this was obvious to. No one else has made this claim.

Certainly Kerr’s performance during the afternoon of 11 November 1975 indicates that he was well in control of his faculties – and much more focused on the task at hand than Whitlam. For the record, Hocking’s “evidence” of Kerr’s alleged drunkenness on 11 November 1975 is based on the recall of a guest at the lunch some four decades after the event. It’s surprising that the Australian Research Council so readily funds this kind of “research”.

Unlike The Dismissal Dossier, The Dismissal: In The Queen’s Name contains considerable evidence. Certainly Kerr is held primarily responsible for the events of 11 November 1975. Yet it is possible to read this book and come to another conclusion. Namely that what occurred in late 1975 was that an arrogant and determined Fraser was intent on blocking supply and an arrogant and determined Whitlam was intent on governing without supply. The Governor-General was the only person capable of resolving this deadlock – and he did.

While Kelly-Bramston carefully weigh all the evidence, there is still a level of naivety involved in their assessment. Take, for example, the nature of the phone call which took place between Kerr and Whitlam on the morning of 11 November 1975.

Kerr always maintained that he merely called Fraser to check if the Opposition was still intent on blocking supply and that Fraser replied in the affirmative. Initially Fraser supported Kerr’s account – which is supported by Kerr’s contemporaneous record dated 16 November 1975. However, Fraser told Philip Adams for his book Fraser: A Biography, which was published in 1987, that Kerr effectively tipped him off Whitlam’s pending dismissal by asking him whether he would accept certain conditions for presiding over a caretaker government.

Fraser Note

Kerr always maintained that the conditions were put to Fraser at a meeting at Government House, later that day, after Whitlam had been dismissed. Kelly/Bramston put it this way:

Kerr may have a note dated 16 November [1975] but Fraser had a note dated 11 November [1975], made at the time of the call, verified by several witnesses.

But did he? Even a brief glance of the note – which Fraser said in the 1980s he had mislaid but which he recovered sometime in the early 2000s – indicates that the writing at the top of the note is dramatically different from that at the bottom of the note. Indeed it seems that when dating the note Fraser wrote a “7” over an “8” – suggesting that he first dated the note “1985” but corrected it to “1975”. It’s quite possible that Fraser dated the note in 1985, ten years after the event. Fraser was certainly capable of back-dating a document. The note, which is published in The Dismissal: In The Queen’s Name, is reproduced below. At the very least, Fraser’s note should be subjected to a forensic examination before it is accepted at face value.

Kelly/Bramston also show signs of naivety by accepting the post-mortem testimonies of both Withers and Fraser and also accepting without question the veracity of a statutory declaration made by Fraser in 2006 about events of 1975 but not released until after his death. This is worthless “evidence” since it relies on the recall of a man who declared that he had a bad memory and who issued a statutory declaration which was released after his death when there could be no penalty for swearing false evidence.

In any event, both Kelly/Bramston and Hocking misunderstand this matter. Kerr had no reason to assure himself that Fraser would accept his conditions for presiding over a caretaker government, pending an election – since Fraser had no option. Having railed for over a month that Whitlam should advise an election or be dismissed, Fraser would have been a ridiculous figure if he rejected the governor-general’s terms of appointment as caretaker prime minister pending a double dissolution election.

The problem which Kerr experienced is that Fraser turned against him sometime after he ceased being prime minister. This meant that both Whitlam and Fraser attempted to discredit Kerr – albeit for different reasons – and that both lived for over two decades beyond Kerr, who died in 1991.

Unlike Jenny Hocking, Paul Kelly and Troy Bramston have written a scholarly book. But they overlook the fact that, according to the extant evidence, only John Kerr and Garfield Barwick left contemporaneous notes about their involvement in The Dismissal. Kelly/Bramston rely on the recall of Fraser and Withers and Liberal MP Vic Garland along with that of Fraser staffers David Kemp and Dale Budd. All this group, living or dead, left memories but not contemporaneous notes. The same appears to be the case with respect to Sir Anthony Mason. Memory is a very unreliable historical tool.

That’s why it is intriguing that so many commentators – including Kelly/Bramston and Hocking – have ignored Anton Hermann’s Alan Missen: Liberal Pilgrim (Poplar Press, 1993). But it is quoted in Sybil Nolan’s edited collection.

The Victorian Liberal Alan Missen was the senator most likely to lead a revolt in the upper house over Malcolm Fraser’s determination to block supply. Missen – unlike Fraser or Withers or Garland or Kemp or Budd – left a diary note. It reveals that Missen had no intention of crossing the floor in the Senate to support the passing of supply unless a solid core of colleagues were prepared to support him. In his contemporaneous diary note – dated 14 October 1975 – Missen wrote that “nobody” would do so.

In other words, Fraser would hold the Opposition’s numbers in the Senate. Meanwhile Whitlam had no intention of backing down in the House of Representatives. Kerr understood the reality – and acted to resolve the deadlock. But he did not strike the first, or even the retaliatory blow.

In recent years Dr Paul Kelly, Troy Bramston and Dr Jenny Hocking have brought new material to the debate about The Dismissal. Some of it contemporaneous and, consequently, fresh. Some of it based on the recollections of players decades after the event and, consequently, unreliable. The most important revelation in the recent books is the documentation in Kelly/Bramston that in December 1975 Gough Whitlam wrote to British prime minister Harold Wilson saying that he would have got the Queen to remove John Kerr as governor-general had he been aware of Kerr’s intention to dismiss him as prime minister. This confirms Kerr’s belief at the time.

However, there has been no compellable challenge to the contemporaneous account left by Sir John Kerr in Matters of Judgement: An Autobiography (Macmillan, 1978) and the monograph and book by Sir Garfield Barwick respectively titled Sir John did his Duty (Serendip Publications, 1983) and A Radical Tory (Federation Press, 1995).

All that is absent from Kerr’s autobiography was the identity of “the only person other than the Chief Justice” whom he consulted before The Dismissal. Sir Anthony Mason was revealed as “the person” in January 1994, shortly after Kerr’s death. Clearly Kerr did not want to out Mason while he was still on the High Court with prospects of becoming Chief Justice.

No doubt more will be written about 11 November 1975. But the new accounts are unlikely to change the story as it was understood four decades ago.

Dr Gerard Henderson is executive director of The Sydney Institute, a columnist with the Weekend Australian and author (most recently) of Santamaria – A Most Unusual Man (MP 2015)