The secret seminars before the dismissal


Stephen Holt

First published in The Canberra Times’ Public Sector Informant December 2015

Troy Bramston and Paul Kelly’s new book, The dismissal: in the Queen’s name, refers to a private seminar arranged for then governor-general Sir John Kerr at the Australian National University in September 1975.

At this confidential gathering, which Gough Whitlam’s biographer Jenny Hocking has also referred to, Kerr and a number of academics discussed the then increasingly hot topic of the governor-general’s reserve powers.

The thought of such a secret seminar, held just two months before Kerr exercised his reserve powers by sacking Whitlam as prime minister and instigating a double-dissolution election, must seem creepy to anyone interested in the events of 1975. The reality, though, is more nuanced.

The ANU seminar had a comic as well as a sinister side. In essence, the September 1975 seminar turns out to have been an example of that common Canberra phenomenon whereby the convening of a meeting is preceded by lots of preliminary spadework.

The spadework for that seminar is documented in the papers of the late ANU legal scholar Professor Geoffrey Sawer, which are held in the National Library of Australia. It was Sawer who, after trying to fob off the task, brought the now fabled reserve powers seminar to fruition. Months of preliminary effort began in March 1975, when Kerr approached the ANU’s then acting vice-chancellor, Noel Dunbar. Kerr raised the idea of the ANU conducting a seminar on legal matters of interest to him. The theme was to be along the lines of the “constitutional position and powers of the governor-general”.

Kerr wanted to hold informal discussions at the ANU with a “small group”, which would comprise his friend Sir Anthony Mason, who sat on the High Court (and was the ANU’s pro- chancellor), together with academic staff including Sawer (another acquaintance of his). Dunbar informed Mason and Sawer of Kerr’s suggestion. It went down like a lead balloon. Mason felt that, as a High Court judge, he should not get involved on a continuing basis in discussing “important questions which may sooner or later come before the High Court for decision”.

At most, he might perhaps attend the initial meeting, where he would refrain from commenting on contentious matters. This information was conveyed in a letter that went missing after it was sent to Kerr. Sawer was equally reluctant to get sucked in. He was willing to come up with the names of other potential attendees but his initial inclination was to hand Dunbar’s request over to his ANU colleague, the lawyer Leslie Zines, and get him to process it.

The attempted flick-pass failed. Zines was unwilling to relieve Sawer of the burden of organising Kerr’s seminar. All this toing and froing dragged on into mid-May 1975, by when Sawer was clearly the lead organiser of the proposed event. In this capacity, he wrote to Kerr on May 16 about what he (Kerr) exactly had in mind. Sawer noted that Mason was no longer in the picture but that the ANU was still prepared to press on with a number of private lunchtime discussions. He asked Kerr to suggest possible topics. Kerr replied on May 27. The content of his letter is surprising.

There was only one specific matter, and an extremely narrow one to boot, that he wanted to focus on. The governor-general, the letter to Sawer indicated, was seized with the fact that, in the lead-up to Federation on October 29, 1900, Queen Victoria had issued letters patent together with royal instructions, which had the effect of instituting the new office of governor-general of Australia.

Since 1900, the instructions in particular had been amended on several occasions. Kerr, having cleared the matter with Whitlam, was now eager for the instructions to be reviewed and consolidated. He was sending his official secretary, David Smith, to London to liaise with Buckingham Palace about the review process.

Kerr’s idea was that, ultimately, the proposed ANU discussion group might be able to examine the new consolidated instructions while they were being drafted. This suggestion in all likelihood flummoxed Sawer. He surely would not have been eager for the ANU to become involved in glorified hackwork that was more the domain of bureaucrats rather than academics. In his letter to Sawer, Kerr said the need to consult Buckingham Palace over the instructions would delay the convening of the proposed seminar by up to seven weeks.

A relieved Sawer had no trouble at all in accepting this postponement. The evil hour when he would have to worry about Kerr’s instructions could be put off for a while. In a reply dated May 29, Sawer said the “instructions exercise would be an admirable starting point and the delay is convenient for myself”. There matters rested until August 8, when, after a telephone conversation, David Smith confirmed with Sawer that the governor-general was at last able to attend private lunchtime discussions.

In the end, just two meetings went ahead at the ANU: on September 2 and 10. The learned dons who met Kerr were Sawer, Zines, their fellow legal academics Dennis Pearce and Jack Richardson, political scientists Fin Crisp and Colin Hughes, and the historian Francis West. By now, the matter of Kerr’s instructions had dropped off the agenda. The two meetings ended up taking the form of an informal and generalised discussion, in which Kerr said little, concerning the governor-general’s reserve powers.

A favourable consensus was reached. Of all the academics present, only Crisp denied that the governor-general had reserve powers, and his view could be discounted because he was a rusted-on Laborite.

Kerr did not need to attend an ANU seminar to know that the reserve powers were still a reality; he had long been convinced of that. It was pleasing nonetheless for him to find out that eminent academics acknowledged their existence as well. Kerr was perhaps more emboldened in his attitude to the reserve powers as a result of the seminar.

It had taken more than five months – from late March to early September – to get these two Kerr tutorials off the ground. During this period, the so-called loans affair had transformed the political scene. Contentious loan- raising activity destroyed the career of one Whitlam minister (Jim Cairns) and, by September, was threatening a second minister (Rex Connor). The Whitlam government was in crisis mode.

Faced with this gathering political storm, a seemingly trivial matter such as consolidating the governor-general’s instructions became a non-event and vanished from sight. But, for a while in the autumn and winter of 1975, Kerr undoubtedly had a bee in his bonnet about the instructions of 1900.

This attitude was indicative of a man who had an obsessive concern with comprehensively marking out and clarifying the exact literal powers vested in him as Australia’s governor-general. It was, it is submitted, entirely in character for a person with such a determined attitude to sack an elected prime minister of Australia on November 11, 1975.

Stephen Holt is a Canberra writer.