This November saw a predictable, feverish and self-indulgent burst of dismissal ‘rage’ from the usual suspects, by which I mean principally Paul Kelly and Troy Bramston. At the risk of flogging a dead horse – the ‘Dismissal’ should have been consigned to the realm of pub trivia years ago – I feel I must address a couple of issues in the Sky News Australia documentary, The Dismissal – 50 Years On, hosted by Chris Uhlmann.

Let me begin by remarking that the promotions for this documentary describe 11 November as ‘a day of treachery and betrayal’. Not a great start. Nonetheless Chris Uhlmann does a good job of hosting the program without allowing his own opinion to intrude.  He, himself, appears balanced and objective.  And a range of viewpoints was aired in defence of Sir John Kerr, the most telling of which was that of Gerard Henderson who addressed the ‘tip-off’ myth.

However, Uhlmann makes one egregious error which I have to call out. At the heart of this controversy are the reserve powers of the governor-general. You would therefore think that the host would acquaint himself with them. But no. At the 14-minute mark, Uhlmann brandishes a pocket edition of the Constitution and tells us:

‘What you won’t find in here, are the “so-called” reserve powers of the governor-general. This gives the governor-general the power to dismiss a prime minister and importantly it does not require permission from the monarch.’

That is flat-out wrong. Kelly and Bramston would rather that the reserve powers didn’t exist and have worked jointly for many years to drive them underground – as in dead, buried and cremated. In their 2015 book they describe the reserve powers as ‘an arcane relic of the medieval Crown’.

It seems they brought Chris Uhlmann under their spell because, if he had looked under the bonnet of this journalistic lemon sold him by the used car salesmen of the Dismissal franchise – that is, if he had read the Constitution – he would have found the reserve powers clearly spelled out in various sections. In particular, Section 64 gives the governor-general the power to appoint ministers of state and provides that they serve ‘at his pleasure’. That is an explicit power to withdraw the commission of a prime minister. It did not derive from the medieval crown or from the British constitution. It was put there deliberately by our founding fathers.  The reserve powers are explicit. Any constraints on their use are not. They are, as Sir John Kerr found, matters for judgement.  The ‘so called’ powers are not ‘so called’.

I put this mischaracterisation down to a genuine error on Uhlmann’s part. I can’t grant the same indulgence to Paul Kelly.

Early in the piece, Kelly asserts that Kerr was the worst person Whitlam could have appointed to the role of governor-general because of ‘his (Kerr’s) obsession with the reserve powers’. The implication here is that Kerr was just itching for an opportunity to establish his place in history by exercising one of the powers. I cannot find any evidence that Kerr was ‘obsessed’ with the reserve powers. His early mentor, Dr H.V. Evatt, was a constitutional scholar who had written an important book on the powers.  Presumably Kerr read it as a student. He certainly believed the powers were there to be used if necessary. But since his practice was in equity, not constitutional, law it is unlikely he ever gave the reserve powers a second thought until he assumed office as governor-general. At which point, it would be incumbent upon him to re-acquaint himself with them in some detail. He did this by instituting a series of discussions with legal academics from ANU, which he curtailed when it became obvious that the use of the powers was becoming distinctly possible.

He also secretly consulted Sir Anthony Mason, a High Court judge, over a period of weeks as the crisis evolved. That may have been an error of judgement, but as to its propriety, if fault there was, it would have fallen on Mason. Kerr did not believe he did wrong in consulting his friend in a very difficult, and lonely, time for him. He would have believed that Mason would have satisfied himself as to the propriety of his own conduct. Be that as it may, it has no serious bearing on the outcome

Kelly makes another serious misrepresentation when, at the 24-minute mark, he describes High Court Chief Justice Sir Garfield Barwick as ‘authorising the dismissal’.  The clear suggestion here is that Barwick gave Kerr permission – that’s what ‘authorising’ means – to dismiss Whitlam. That is a gross distortion.

Kerr had come to the firm conclusion, in the preceding few days, that unless either Whitlam or Fraser backed down, he would have to withdraw Whitlam’s commission in order to secure supply. He believed he was on firm constitutional ground but, prudently, he took independent advice. What Barwick gave Kerr was a legal opinion. It was the constitution that authorised the dismissal.

And, finally, I come to the claim that Sir John Kerr acted precipitately. That he should have given the politicians ‘time to sort it out’.  Former Labor senator John Faulkner makes this claim in the Sky News Australia documentary. As did Gareth Evans and Kerry O’Brien in a recent daylong event at the Museum of Australian Democracy.

In the documentary, Kelly also claimed that, in an interview with Fraser on 6 November, Fraser told him he was confident that the problem would be resolved within the next few days by the governor-general’s intervention. This revelation was designed to bolster the narrative that Fraser was ‘tipped off’.   Coming, as it does, 50 years after the event, it has no probative value whatsoever.  It has no context. We do not know if Kelly is paraphrasing Fraser’s purported statement, conflating the answers to a number of questions.

As background, Kerr had sought advice from the senior law officers, on the questionable proposal to borrow money from the banks to tide the government over until supply could be obtained. This proposal was integral to Whitlam’s half-Senate election strategy.  Kerr never received that advice.

As far as Whitlam was concerned a political resolution would come from opposition senators folding and passing supply. Clearly, Whitlam did not think that would happen because it was he who set his tumbril in motion by requesting a meeting with Kerr to advise the half-Senate election that he had made no effort to convince Kerr would work. Kerr did not summon Whitlam to dismiss him, as many people assume. Whitlam forced his hand. True, Kerr stated in his book that, if a political resolution had not occurred soon, he would eventually have had to act on his own initiative. But the fact is, he did give the politicians time to resolve the issue politically.

At this stage, the government was treating Kerr contemptuously, expecting him to do what he was told. Kerr had every right to keep his own counsel and to seek independent advice. By 11 November, Kerr was not an umpire, but a player.

The Dismissal – 50 Years On makes interesting viewing but it is not without blemish.  Let me give Gerard Henderson the last word:

‘No one resurrected Gough Whitlam as much as John Kerr did because if Kerr had not sacked Whitlam, he wouldn’t have become the Labor saint he became. He would have been regarded as an interesting figure but a substantial failure as a prime minister.’

Amen to that.