Whitlam dismissal what-ifs--(2) Whitlam dismisses Kerr?

Someone on soc.hstory.what-if asked some years ago: "WI Whitlam strikes first, by Advising the Queen to dismiss Kerr as G-G, before Kerr has a chance to dismiss Whitlam as PM?"

My response:

***

I am no expert on Australian constitutional law, so I will just quote David
Butler's discussion of this question on pages 320-321 of Howard R. Penniman,
ed., *Australia at the Polls: The National Elections of 1975* (Washington
DC: American Enterprise Institute 1977) in his "Appendix A: Politics and
the Constitution: Twenty Questions Left by Remembrance Day":

"(12) Can a Prime Minister Secure the Dismissal of a Governor General? There
has been only one recorded instance of this happening: in 1932 Eamon de
Valera, the newly elected prime minister of Ireland, asked the Crown to
change the governor general of Ireland who had been appointed on the advice
of the previous government and who had protested publicly about being treated
with discourtesy. But the opinion is strongly held that the Queen ought to
accede promptly to almost any request from a Commonwealth prime minister for
the dismissal of a governor general. It is open to question whether
'promptly' means that if Whitlam had been able to get to the phone at 1 p.m
on November 11, he could have insisted that the Queen (at 2 a.m. English
time) should have agreed on the spot to his request and taken immediate
action. If she had asked for time, the governor general could, of course,
have dismissed Whitlarn in the interim (though she might have asked for a
truce while she considered the matter).

"She would have been in a great difficulty in seeking advice. Her British
ministers and the British high commissioner in Canberra would be scrupulously
anxious to keep out of an Australian domestic concern. The Australian high
commissioner in London could only speak as the mouthpiece of the Canberra
government. Her own palace advisers, skilled though they may be about British
politics, would hardly be able to help on the Australian scene. The natural
contact, the governor general, though he might have a right to give his side
of the story, could hardly guide her on the proper action. She would be under
great pressure to give a speedy answer--and it is hard to see how she could
prudently refuse such a request.

"But if that is so, it raises a specter to hover over any future Australian
crisis. Will every governor general carry a letter of dismissal in his hand
when he confronts a prime minister? Will every prime minister carry a radio
telephone with an open line to Buckingham Palace?

"It makes nonsense of any picture of the governor general as an umpire, if he
can be first dismissed by any batsman whom he thinks of declaring out. But
there is, of course, a qualification to this picture. Even if the prime
minister technically has the power to get rid of an uncooperative governor
general, from a political point of view it would usually be very rash to
invoke such a power. Certainly if Whitlam, after dismissing Cairns and
Connor, were to have dismissed the governor general, his own appointee, the
howls of indignation, the innuendos of dictatorship, would have been
overwhelming. Despite his remarks on November 11 about contacting the Queen
(quoted on page 321 [1]) Whitlam himself later indicated that in the last
resort he would have chosen an election.

"But it is worth pursuing the question of what might have followed if Whitlam
had secured the dismissal of Sir John Kerr. To provide for the absence of a
governor general, it has been customary for some of the state governors to be
entrusted with a dormant commission to act as governor general. Until ten
years ago the task seems always to have been allotted to the senior of the
governors of New South Wales and Victoria largely because of geographical
convenience, and only these two governors held a dormant commission. Although
practice has changed somewhat, it seems that in 1975 the task would naturally
have fallen to Sir Roden Cutler, governor of New South Wales since 1966. But
it could have been transferred to, say, Sir Mark Oliphant of South Australia,
a Labor-appointed governor [2] Yet there can be no certainty that he or any
other governor would have proved more cooperative with Whitlam than Sir John
Kerr--if each in turn was obdurate, are we to envisage the successive
dismissal of one acting head of state after another? Even to outline this
fantasy underlines the hazardousness, perhaps even the unlikelihood, of an
actual dismissal of the governor general."

[1] "The governor general dismissed Whitlam summarily, it seems, because he
thought that any other course would lead to his own dismissal and a
continuance of the crisis. There is no doubt that Whitlam had given some
grounds for such a belief. His whole approach to the governor general had
been truculent and uncompromising. He had spoken in jest perhaps, of the
governor general as 'My Viceroy'; on October 17 he said 'Unquestionably the
Governor-General takes advice from his Prime Minister and no one else.' He
had moved swiftly to get the Queen to revoke the dormant governor general's
commission from Sir Colin Hannah on October 23 after the governor of
Queensland had publicly sided with the Senate. And in his press conference
on November 11 he was to say, when asked if he would contact London, 'The
Governor-General prevented me getting in touch with the Queen by just
withdrawing the commission immediately. I was unable to communicate with the
Queen, as I would have been entitled to if I had any warning of the course
the Governor-General was to take."

[2] In a footnote, Butler adds here, "It can readily be argued that the
process of appointing a new governor general would involve no more delay than
the routines of swearing in an acting governor general and that Whitlam could
in a matter of hours have got into office some immediately available
outsider. But that is by no means certain."
 

Riain

Banned
The GG serves at the PMs pleasure. If in the days leading up to the Dismissal the PM contacted the Queen and advised her that he wanted to replace Kerr with someone else she would have little choice but to do so. However I think that the 10th would be the latest this would work, by the 11th the wheels of the Dismissal were already in motion.
 
Kerr in his autobiography claims that he accepted that the famous joke Whitlam made at a state dinner in, I think September, about rushing to fire the G-G before the G-G could fire the govt, that that was merely a jolly jape ("we all laughed"). But I'm inclined to believe Paul Kelly's view that Kerr was actually pretty cut up about it all, particulary if it happened to be that he was the only one not laughing.

Prince Charles apparently wanted the Palace to ignore Whitlam, but that's a Edward VIII-level screw-up. The Queen had more sense.

Paywalled.

Otherwise, if it's the same broad story, what I have here is Jenny Hocking in her Whitlam biography writing that Prince Charles, when he met Kerr at the PNG independence ceremonies on around 16 September, apparently declared offhand "surely the queen should not have to accept advice that you should be recalled at the very time, should this happen to you when you were considering having to dismiss the govt"; also, perhaps more significantly, that Sir Martin Charteris, QE2's private secretary, wrote to Kerr a week before the Coalition blocked supply (presumably Oct 8-ish) that should '"the contingency to which you refer" arise, the queen would "try to delay things" although, [he] acknowledged, in the end the queen would have to take [Whitlam's advice]. Neither Kerr nor the palace ever revealed that, weeks before any action in the senate had been taken, the G-G had already conferred with the palace on the possibility of the future dismissal of the PM, securing in advance the response of the palace to it.' Chapter 10, pp 16/17, Hocking, 'Gough Whitlam His Time', MUP (Hocking draws on Kerr's journal and his private papers at the national archives.)

But I actually think it's a moot point; I think that just as Whitlam didn't instruct Labor's senators to assume the mantle of obstructionism on November, 11th, immediately upon the newly created PM Fraser instructing his own Coalition senators to finally let the bills through, Gough would never do the similar ultra-hardball thing of firing Kerr...

...At least not in any instance where the G-G remained as discreet about his very own personal, ahem, non-govt agenda, as he did in OTL.

(This thread is an improvement on the last time this question was asked; I seem to recall that was mostly about people actually avoiding the W-I, because apparently their own non-OP related observations were what really mattered for the discussion.:D Though I plead guilty to that off-topicness.)
 
The GG serves at the PMs pleasure. If in the days leading up to the Dismissal the PM contacted the Queen and advised her that he wanted to replace Kerr with someone else she would have little choice but to do so. However I think that the 10th would be the latest this would work, by the 11th the wheels of the Dismissal were already in motion.

No, he doesn't: the GG serves at the Queen's pleasure. The Crown appoints and can dismiss GGs, the PM can neither appoint nor dismiss a GG.

The PM can advise the Crown that an individual be appointed/removed as GG, and the Crown usually takes the PM's advice, but it's not automatic and not immediate: the Crown can overtly refuse to dismiss or just ignore the PM's advice.

If in the days leading up to the Dismissal the PM contacted the Queen and advised her that he wanted to replace Kerr with someone else she would have little choice but to do so.

It's more nuanced than that: she could have made herself unavailable, refused to do so, pretended she hadn't heard him, told him to f**k off, or just sat on her hands.
 
The PM can advise the Crown that an individual be appointed/removed as GG, and the Crown usually takes the PM's advice, but it's not automatic and not immediate: the Crown can overtly refuse to dismiss or just ignore the PM's advice.

No, not in the modern era under discussion here. Not unless we're talking about some WWIII martial law scenario or whatever.

I'm not certain there was ever any time in the history of the Australian federation when the sovereign could have done what you suggest, though the nomination of Isaacs by the govt tested the power of Canberra in the face of the palace. That's 1931.

It's more nuanced than that: she could have made herself unavailable, refused to do so, pretended she hadn't heard him, told him to f**k off, or just sat on her hands.

I address this in my above post; the evidence points to this having been secretly discussed, very secretly, because the Queen's private secretary knew there was essentially no room to play games in the modern era of the Australian monarch, where she is expected to follow the explicit advice of her ministers if they have lost confidence in her vice-regal representative.
 
Up to a point, Lord Copper

I address this in my above post; the evidence points to this having been secretly discussed, very secretly, because the Queen's private secretary knew there was essentially no room to play games in the modern era of the Australian monarch, where she is expected to follow the explicit advice of her ministers if they have lost confidence in her vice-regal representative.

You did indeed address it: I started to write my reply before you had posted your post, and had I read it my reply would have been slightly different. Additionally, I agree that HMQ is expected to follow the PM advice. But "expected to follow advice" is not the same as "constrained to accept command".

No, not in the modern era under discussion here. Not unless we're talking about some WWIII martial law scenario or whatever.

I'm not certain there was ever any time in the history of the Australian federation when the sovereign could have done what you suggest, though the nomination of Isaacs by the govt tested the power of Canberra in the face of the palace. That's 1931.

I bow to your superior knowledge of Australian affairs, but we will have to agree to disagree on this. Despite the caveats ("modern era"), the situation remains that the PM proposes but the Crown disposes - the passage of time has not changed the rules.

If push had come to shove, with PM insisting that Kerr was dismissed, and Kerr insisting that he (Kerr) had not been dismissed until the Crown says so, and then dismissing PM in his turn (I assume we're both thinking of the "Crimson Tide" scene at this point), then constitutionally, Kerr would have been right and Whitlam wrong.

I believe the popular consensus in Australia is that I am wrong on this, but the popular consensus is wrong.
 

Cook

Banned
I believe the popular consensus in Australia is that I am wrong on this, but the popular consensus is wrong.

No, Magnaic is correct; from the moment the Prime Minister made public that he was informing the Queen that the Governor General no longer had his support, Kerr would have been considered dismissed and powerless, whether the queen had received the notification and responded or not. Kerr's own meticulously kept diary shows that he was fully aware of this, having consulted High Court Justice Sir Anthony Mason and Chief Justice Sir Garfield Barwick on the matter; both were very clear that if Whitlam got a whiff of what Kerr was planning, it would simply be a race to see who dispatched a message to Buckingham Palace first. Nor were the two most eminent legal minds in the country the only sources of advice Kerr sought - he also went direct to the horse's mouth; Kerr took the opportunity of a meeting with Prince Charles in Port Moresby in September 1975 to send a confidential message to the palace, expressing his deep concern that Whitlam might remove him if he moved to dismiss the prime minister. The response was that "in the contingency to which you refer" the queen would have to follow the advice of her prime minister. Kerr had been the Chief Justice of the NSW Supreme Court prior to taking up the Viceregal role; so no slouch when it came to legal procedures himself.

So Kerr was fully aware that not only would the queen dismiss him upon receiving advice to do so from Whitlam, but that Kerr would no longer be able to exercise the powers of Governor General from the moment Whitlam dispatched a telegram to the queen instructing her to dismiss Kerr. Hence the extreme secrecy of Kerr's actions leading up to November 11 and on that morning: hiding Fraser's car around the rear of the building when he arrived first, lest Whitlam see it as he was driven in and realise what was about to happen. Had that happened, the position of Governor General would have fallen to the most senior state Governor of the time until a new permanent Governor General was nominated by the Prime Minister and confirmed by the palace; in 1975 that would have been New South Wales' Governor, Sir Arthur Roden Cutler VC.

Roden Cutler was suitably experienced for the position, having repeatedly administrated while Kerr was out of the country; had he become G.G., the pressure would have fallen back onto the Senate to resolve the issue, because Roden Cutler said in interviews afterwards that he would not have done such a drastic action as to have dismissed the Prime Minister and dissolved parliament.

Of course, if you think you understand constitutional law better than Sir Anthony Mason and Sir Garfield Barwick (and the palace) did, then stick to your guns.
 
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Riain

Banned
No, Magnaic is correct; from the moment the Prime Minister made public that he was informing the Queen that the Governor General no longer had his support, Kerr would have been considered dismissed and powerless, whether the queen had received the notification and responded or not. Kerr's own meticulously kept diary shows that he was fully aware of this, having consulted High Court Justice Sir Anthony Mason and Chief Justice Sir Garfield Barwick on the matter; both were very clear that if Whitlam got a whiff of what Kerr was planning, it would simply be a race to see who dispatched a message to Buckingham Palace first. Nor were the two most eminent legal minds in the country the only sources of advice Kerr sought - he also went direct to the horse's mouth; Kerr took the opportunity of a meeting with Prince Charles in Port Moresby in September 1975 to send a confidential message to the palace, expressing his deep concern that Whitlam might remove him if he moved to dismiss the prime minister. The response was that "in the contingency to which you refer" the queen would have to follow the advice of her prime minister. Kerr had been the Chief Justice of the NSW Supreme Court prior to taking up the Viceregal role; so no slouch when it came to legal procedures himself.

So Kerr was fully aware that not only would the queen dismiss him upon receiving advice to do so from Whitlam, but that Kerr would no longer be able to exercise the powers of Governor General from the moment Whitlam dispatched a telegram to the queen instructing her to dismiss Kerr. Hence the extreme secrecy of Kerr's actions leading up to November 11 and on that morning: hiding Fraser's car around the rear of the building when he arrived first, lest Whitlam see it as he was driven in and realise what was about to happen. Had that happened, the position of Governor General would have fallen to the most senior state Governor of the time until a new permanent Governor General was nominated by the Prime Minister and confirmed by the palace; in 1975 that would have been New South Wales' Governor, Sir Arthur Roden Cutler VC.

Roden Cutler was suitably experienced for the position, having repeatedly administrated while Kerr was out of the country; had he become G.G., the pressure would have fallen back onto the Senate to resolve the issue, because Roden Cutler said in interviews afterwards that he would not have done such a drastic action as to have dismissed the Prime Minister and dissolved parliament.

Of course, if you think you understand constitutional law better than Sir Anthony Mason and Sir Garfield Barwick (and the palace) did, then stick to your guns.

Bingo, you've hit the nail on the head!

What's more, from what I understand from my Uni days, the Queen takes her role very seriously and would be highly unikely to jerk around a democratically elected PM with the confidence of the House with evasions etc. I think that she would readily answer the phone at 2 in the morning to undertake such an important action as sacking a GG, knowing full well it's impact on countries with similar constitutional arrangements such as Canada and New Zealand.

I'd also point out that in 1975 Charles was 27 and still in the Navy, not exactly a major part of Government functioning and not an experience statesman like his mother.
 
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Cook

Banned
The PM can advise the Crown that an individual be appointed/removed as GG, and the Crown usually takes the PM's advice, but it's not automatic and not immediate: the Crown can overtly refuse to dismiss or just ignore the PM's advice.

Australia and the other Dominions won the right to nominate their Governor General at the Imperial War Conference in 1917*, a right first exercised by Prime Minister Scullin in 1930, when he nominated Isaac Isaacs to the position over the strenuous objections of both the British parliament and the palace.

*It is remarkable what people will agree to when they look like they are losing a war and are desperately in need of more troops.
 
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The PM can advise the Crown that an individual be appointed/removed as GG, and the Crown usually takes the PM's advice, but it's not automatic and not immediate: the Crown can overtly refuse to dismiss or just ignore the PM's advice.

In law yes, but in practice what you're suggesting is the following:

1 - Whitlam advises the removal of Kerr.
2 - Queen Liz says 'jam it up ya Goughie baby... you're stuck with Kerr.'

<all of this would come out in the media btw>

3 - the Queen's representative in Australia then sacks the elected government of Australia.
4 - The Queen is no longer seen as a monarch of Australia and any kind of diplomatic ties with the Britain are severely damaged.
5 - Australia becomes a republic on or about November 12th, 1975.
 

Riain

Banned
..........................The PM can advise the Crown that an individual be appointed/removed as GG, and the Crown usually takes the PM's advice, but it's not automatic and not immediate: the Crown can overtly refuse to dismiss or just ignore the PM's advice...............................

I'd like, if I may, to explore this word 'can', as in "the PM 'can' advise the Crown".

To me that implies that there is another way for the GG to be selected. If this is the case I've not heard of it and would like to know how this would occur and if there is any precedent for this.
 
I'd like, if I may, to explore this word 'can', as in "the PM 'can' advise the Crown".

To me that implies that there is another way for the GG to be selected. If this is the case I've not heard of it and would like to know how this would occur and if there is any precedent for this.

This is really a delightful legal fiction.

You see, Prime Minister really means chief advisor. In theory, the PM simply advises the monarch. Back in the days of Robert Walpole that might even have been true.

Now, the convention is that the Governor General's job is to wear a silly hat, sit in the corner, and sign whatever the PM tells them. When a PM "advises" the GG or monarch to do something, that means the GG or monarch does it without question. So de facto, it is the PM doing it.

In the case of the GG appointment or removal, the PM "advises" the monarch, and the monarch appoints or removes the person. Which is de facto identical to the PM being able to appoint or remove a GG at will. "Can" is simply a subtle euphemism meaning "will"

(There may be some theoretical exceptions. What happens if the incumbent PM loses an election, and the incumbent GG dies on election night? The old PM is still PM till the new one is sworn in. I think you would see the monarch require consultation with the election winner before the new GG is appointed, rather than simply accepting what the defeated incumbent says. But that's a very marginal exception).
 
constitutionally Whitlam could have dismissed kerr.

Had he done so, what would happen next?
he still wouldn't have had a senate majority, would he have to have a half-senate election? or another double dissolution?
 
constitutionally Whitlam could have dismissed kerr.

Had he done so, what would happen next?
he still wouldn't have had a senate majority, would he have to have a half-senate election? or another double dissolution?

- Whitlam appoints replacement who will do as Whitlam says.
- Either Liberal Senators fold OR Whitlam calls half senate election.
- If half senate election fails, only real option is a double dissolution.
- If double dissolution ends back where they started, issue resolved via joint sitting.

IIRC Whitlam was investigating issuing IOUs should the issue drag out too long
 

Cook

Banned
Had he done so, what would happen next?

Whitlam would have called a half-Senate election.

Whitlam and Fraser met on 3 November and Fraser offered to pass the money bill if Whitlam agreed to call an election of the House of Representatives before May 1976. Whitlam rejected the offer. They met again on the morning of November 11, when Malcolm Fraser, Philip Lynch and Doug Anthony (the leaders of the Coalition parties) met with the Prime Minister, in his office at 9.00 am. Whitlam demanded that the opposition agree to pass supply within six hours or he would advise the Governor General to call a half-Senate election. Fraser effectively called his bluff, asking him if he was “certain that was the only solution?” (For Fraser, any election then would have been a case of being thrown into the brier patch, but he wanted the treasury benches, and for that a House of Representatives election was needed.) Without an agreement, Whitlam moved to call the half-Senate election, telephoning Kerr at 10.00 am and discussing his plans for the election, they agreed to meet that afternoon at 1.00 pm. Note that Whitlam went to Kirribilli House that afternoon to arrange for Kerr to issue the writ for a half-Senate election only.

Assuming Whitlam calls the half-Senate election it then becomes rather strange. The election would have had to be held as soon as possible, so 13 December would in all likelihood still have been the date. Based on what actually happened, we can expect that the ALP would have still suffered a swing against them and the loss of further Senate seats in the states, but the new senators would not have taken their seats in the Upper House until July ’76. However, the ACT and Northern Territory were to be represented by two senators each as of the impending election, and territory senators take their seats immediately; meaning that in theory the ALP could have won a temporary majority in the Senate and been able to pass the supply bill. As events transpired, the ACT elected one Liberal and one ALP senator in December ’75 (no joy for Gough there) and in the Territory, the ALP won one seat, the CLP won the other; so the Senate would have remained in Coalition hands after a half-Senate election held on December ’75, immediately and with the certainty of it moving further into Coalition hands in July the following year.

And in the mean time the supply bill is still blocked.
 
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As a related What If:

If, rather than having the steak lunch, Whitlam orders the ALP Senators to block supply. Meanwhile, he rejects Kerr's actions as a breach of convention, and requests that the Queen counter-sack Kerr.
 
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