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Kerr, Sir John Robert (1914–1991)

by Jack Waterford

Sir John Kerr will go into the history books as the man who brought an end to the Whitlam Government in November 1975. Though the rage an outraged Whitlam demanded be maintained has almost entirely faded, that decision ruined Kerr.

It made him anathema to almost half the population and an embarrassment to a significant proportion of the remainder. John Kerr died yesterday but only after being a non-person for most of the past 15 years.

But the history books are quite unlikely to convict him of the grosser sins alleged by his detractors, or to draw together every facet of his life's story, as most of his unfriendly biographers have it, as some preparation for what they see as his final act of class treachery.

The modern argument against the man is not that he acted outside his powers — for it now seems agreed that he had the constitutional power to do what he did — but that he made a political misjudgment about whether the time had come when he had to exercise them.

John Kerr was born in Balmain, Sydney, in September 1914. His father was a boilermaker—a friend of a later Labor Premier, Bill McKell, who worked with him on the same docks — his mother a dressmaker.

Influenced by another great Labor luminary, Bert Evatt, the barrister (later High Court judge and Leader of the Labor Party), John Kerr decided early on that he wanted to become a lawyer, he made up his mind in year seven, but lacked the marks to get to a good school, so decided to repeat his year six so that he could get into Fort Street Boys High School. Evatt, whom his father had known when Evatt had represented the district in state politics, was to be an early patron — he sponsored a prize Kerr won at school and, once Kerr had graduated gave him a personal scholarship of £50 a year so that he could go to university.

Kerr was an outstanding student. He became politically involved and belonged for a period to Trotskyite group. At the bar, he identified strongly with the Labor push, particularly working in the accident and industrial compensation area. By the time the war came he had a fairly prosperous practice — making about £1000 a year and yearning to get into the more rarefied (and remunerative) area of public and constitutional law.

He enlisted in the army as a private in 1942 and was commissioned as a lieutenant later that year, being recruited by the remarkable, and still faintly mysterious, body called the Directorate of Research and Civil Affairs. Its intelligence links were always somewhat exaggerated — its major function was to provide the Australian Commander, General Thomas Blamey, with political advice and to provide guidance in the civil administration the military was having to perform willy-nilly in Papua New Guinea. His stint there laid the basis of the legend that Kerr had a long background, never broken, in intelligence.

The head of the Directorate, Alf Conlon, thought highly of Kerr and sent him to several overseas planning conferences. In one prescient letter of introduction, he introduced Kerr as a bright young lawyer with a future, particularly interested in constitutional law.

At war's end, Kerr stayed in the public service, helping establish the School of Pacific Administration and the South Pacific Commission. Some of this involved working with the increasingly irascible Conlon. Kerr, shortly before he departed for life back at the bar, played a role in pushing Conlon out once the staff had revolted against him. A painful episode, in which Kerr's role was misunderstood, it provided another item in what his detractors claimed to be a history of betrayal by Kerr of allies and patrons.

Back at the bar, Kerr, with two other ex-Trotskyites, James McClelland, a rising young industrial solicitor, and Laurie Short, an ironworker, made his reputation by wresting control of the Ironworkers' Union from the Communist Party, after establishing massive fraud and corruption in it. Increasingly his work came from right-wing Labor groupings — one of his contemporaries, Lionel Murphy, was frequently for the other side. In 1951, he was pre-selected for the not-really winnable seat of Lowe (held by Billy McMahon); he stood aside to allow Dr John Burton, Evatt's former External Affairs Department head to have an unsuccessful go.

When Evatt precipitated the Split in the mid-1950s, Kerr's sympathies were almost entirely with the former Industrial Group members who left Labor to form the Democratic Labour Party. He was offered a significant leadership role but declined it. By then, however, he had lost most of his instinctive support for the Labor Party — within a decade, he was to be offered a Liberal preselection (declined) and moved to the conservative apolitical side of the bar.

He played a significant role in the development of the right-wing Association for Cultural Freedom and with the Law Council for Australia. He maintained a close interest in New Guinea affairs and in the development of legal links between Australia and Asia.

Both the ACF and the LawAsia Foundation were ultimately to be found to have been clandestinely supported by the US Central Intelligence Agency, but this, though it may say something of the direction in which Kerr was moving, involved no knowledge on his part, let alone demonstrate intelligence connections.

He was appointed to the ACT Supreme Court and the Commonwealth Industrial Court in 1966, lured, as not a few such judges were, by the prospect, not to be realised for a decade, of the Commonwealth's establishing a Federal Court. He was to prove an outstanding judge in Canberra and made some mark as a civil libertarian — a mark which drew him to the notice of Gough Whitlam, then Opposition Leader. Two of his best-known Canberra cases involve rights: one, involving a young student named Des Ball involved a significant reduction in police powers to use catch-all charges such as "offensive behaviour" in political demonstrations; another involved the throwing out of police warrants issued against publisher Max Newton when an embarrassed Liberal Government found him to be receiving too many leaks.

In the Industrial Court, Kerr is best remembered for his decision to invoke, for the first time in ages, penal powers to imprison a Melbourne Tramworkers' Union leader, Clarrie O'Shea for contempt of court. The decision caused mayhem. The immediate crisis was averted once someone anonymously paid a fine; the result saw penal powers dropped for a long time from the books.

Kerr's judicial reputation saw him invited to take up the Chief Justiceship of NSW, and, that and a reputation for having deep Labor roots, saw Whitlam, now Prime Minister, invite him to become Governor-General in 1974.

Kerr, with a disdain for fine manners and pomp and a gravelly voice, was an immediate democratising influence at Government House. But settling in was difficult. His wife, Alison, died an agonising death of cancer. He remarried Anne Robson, of steelier eye than her predecessor and one who stiffened up Government House again, was an old friend from School of Pacific Administration days, but her "quickie divorce" to marry him engaged him in controversy. The Whitlam Government was already in deep trouble over the loans affair and he himself was being criticised over his role, or lack of it, at an Executive Council meeting in 1974.

As the storm clouds gathered about the Whitlam Government, Whitlam failed to appreciate that he did not have the Governor-General in his pocket. Not, necessarily, that Kerr was against him. It was simply that Whitlam believed the Governor-General to be a mere cypher in government and made no secret of the fact. Asked, at one stage, by Lee Kuan Yu what would happen if the Governor-General disagreed with this assessment of his role, Whitlam had said grandly that it might mean a race to the Palace — in effect to get the Queen to sack Kerr before Kerr could sack Whitlam. The remark had a significant impact upon Kerr and was in his own mind at least an answer to the Whitlam charge that, before the sacking, Kerr had not warned him of the direction of his thinking.

Once the Opposition blocked Supply, Whitlam decided to govern on, hoping to embarrass the Opposition, by progressive collapse of government services, into dropping its stand. A scheme of most doubtful constitutionality — in effect of deferred debt — was proposed to meet absolute bills. Great pressure was maintained on the Senate, and there was evidence that one or two of the Liberal Senators — and only one was needed — were wavering.

Kerr had secretly set November 11 as the ultimatum day because he had been advised that Supply would run out in December and that November 11 was the last day in which the processes could be set in motion for a practicable December election; otherwise one could probably not have been held until February.

Before he acted, he secretly consulted the Chief Justice, Sir Garfield Barwick about the extent of his powers — another significant misjudgment because Labor in nowise could accept Sir Garfield as any sort of arbiter. There is also a suggestion — not these days discouraged by then Opposition Leader Malcolm Fraser but bitterly denied by Sir John — that there was a degree of forewarning of Fraser. There was certainly none for Whitlam; he was ushered into a study, asked bluntly if he would recommend a general election, and, on his saying no, sacked. Half an hour later, Malcolm Fraser was installed as caretaker Prime Minister, having promised to secure Supply and then to recommend a December 13 election.

Though Kerr might have in fact believed that a dismissed Whitlam might have been at some tactical advantage in appealing to the electors, Whitlam certainly did not think so and events were to prove him right. As Kerr's official Secretary David (now Sir David) Smith read the official notices dissolving Parliament, Whitlam called Fraser "Kerr's cur" and told Australians to maintain the rage. Many did — some, though a declining number, still do — but Whitlam was decisively defeated a month later. At the end of the day it was the people, as much as Sir John Kerr, who made the judgment.

But Malcolm Fraser, once established in his own right, found Kerr an embarrassment. His presence was a continual reminder of the questionable legitimacy of his Government's birth; Kerr himself could scarcely appear at public gatherings without being roundly abused and the Opposition boycotted functions at which he was present. The events of the dismissal — and raging arguments between lawyers and political scientists about the correctness of his actions — was a significant distraction, and some of the personal behaviour of an increasingly reclusive Kerr — in particular some evidence of over-indulgence at a Melbourne Cup function — made him a figure of fun.

There was relief all round when he stepped down, for a Governor-General, in Sir Zelman Cowen, who announced that he wanted to "heal the wounds", but the relief turned to rage when it was announced that he was to be appointed as Ambassador to UNESCO. In the furore he did not take up the appointment but went instead to what, despite his denials, was effective exile in Britain. He returned to Australia in the 1980s.

Had Sir John not acted in 1975, it is likely that the Whitlam Government might have in any event imploded before too much longer, but that Kerr, like other people of Labor roots, such as McKell, Isaacs and the present incumbent, might be remembered as someone who made good after a significant career of public service before ending a career at the peak of Government. Instead Sir John's legacy was to make the vice-Royalty a most controversial post and himself one of the most discussed persons ever to occupy it.

The votes are not yet in, but most, from the time that has put a distance from the events, fall somewhat short of adulation for the man who saved Australia from the incompetence of the dreaded socialists and just as significantly short of the alternative claim that he was the man who betrayed a class and a generation. Few now doubt his power to do what he did; many still doubt his judgment that it was appropriate to exercise it when he did.

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Citation details

Jack Waterford, 'Kerr, Sir John Robert (1914–1991)', Obituaries Australia, National Centre of Biography, Australian National University, http://oa.anu.edu.au/obituary/kerr-sir-john-robert-23431/text35211, accessed 21 March 2019.

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