Labour Australia

Sir John Kerr, 1974

National Archives of Australia, A6180:25/​6/​74/​1

John Robert Kerr (1914–1991), lawyer, judge, and governor-general, was born on 24 September 1914 at Balmain, Sydney, eldest of eight children of New South Wales-born parents Harry Kerr, boilermaker, and his wife Laura May, née Cardwell. John attended Rozelle Junior Technical and Fort Street Boys’ High Schools. At Fort Street he became vice-captain, participated in debating and drama, and won an essay prize donated by H. V. Evatt. In the Leaving certificate examination in 1931 he obtained first-class honours in English, history, and chemistry and was awarded an exhibition to the University of Sydney (LLB, 1936). Doubting whether he could afford to study law without legal connections, he approached Evatt for advice. Evatt offered him a personal grant of fifty pounds per year and he accepted for his first year, after which he supported himself with scholarships and work as an articled clerk. In addition to his law studies, he attended courses in politics, government, and philosophy, and read the works of Bertrand Russell, George Bernard Shaw, H. G. Wells, and others. After a brief flirtation with Trotskyism, he became an anti-Stalinist social democrat.

The constitutional issues raised in 1932 following the dismissal of New South Wales premier Jack Lang by the governor, Sir Philip Game, were intensely debated during the 1930s, especially in legal circles. From Evatt and other authorities Kerr concluded that it was consistent for a social democrat to maintain the reserve powers of the Crown, whether codified or not. He maintained this view for the rest of his life. Having completed his articles and qualified as a solicitor with Baldick, Asprey and Co., he was admitted to the Bar in 1938. He joined chambers at 53 Martin Place occupied by labour lawyers specialising in industrial relations law. Believing, however, that he was restricting himself by being identified solely as a labour lawyer, he moved to chambers at 182 Phillip Street that were not politically aligned. On 4 November that year, at St James’s Church, King Street, Sydney, he married Alison Worstead, a clerk.

On 1 April 1942 Kerr began full-time duty in the Citizen Military Forces, at the Base Supply Depot, Parkes. In July he was commissioned as an acting lieutenant and posted to the army’s research section in Melbourne. Headed by Alfred Conlon, this organisation evolved into the Directorate of Research and Civil Affairs (DORCA). Kerr’s promotion was rapid: two steps to major in 1943 and, following his transfer (November 1943) to the Australian Imperial Force, to lieutenant colonel in 1944. He was effectively Conlon’s deputy (formalised in April 1945), putting administrative flesh on the bones of the proposals of his charismatic but idiosyncratic superior and helping to dissuade him from some of his more controversial ideas.

Contrary to many accounts, especially after 1975, DORCA was not an intelligence unit and had no association with American or other intelligence agencies. One of its principal interests was the military government of captured or occupied territories until they could be returned to orthodox civilian administration. Working in this field, Kerr became a quasi-diplomat, liaising with civilian and military officials in London and Washington. During visits to London in 1944 and 1945 he discussed the military control of the British territories in Borneo following their liberation by Australian forces in 1945. He became the Australian link with the British Directorate of Civil Affairs, seeking to alleviate Anglo-Australian tensions over Conlon’s heavy-handed management of the joint arrangements.

In Canberra in 1945 DORCA established the School of Civil Affairs to train administrators for Australia’s territories. Subverting Kerr’s intention to return to legal practice, Conlon deviously instigated his appointment as the school’s chief instructor—succeeding (Sir) Keith Murray—and promotion to temporary colonel in September. Kerr’s faith in Conlon’s integrity was undermined but he agreed to head the renamed Australian School of Pacific Administration, established as a civil institution in Sydney in 1946. On 4 April he transferred to the Reserve of Officers. While at ASOPA he was also organising secretary of a conference which led to the formation of the South Pacific Commission. He arranged the first session of the commission but declined an offer to become its inaugural secretary-general.

Kerr resumed at the Bar in 1949, developing a successful practice in industrial and constitutional law. Having joined the Australian Labor Party (ALP) in 1948, after a meeting with Laurie Short, national secretary of the Federated Ironworkers' Association of Australia, he acted for unionists who were challenging communist control of Australian trade unions. He also frequently represented the Australian Stevedoring Industry Board, handling waterfront issues linked to the communist-led Waterside Workers’ Federation of Australia.

In 1951 Kerr was endorsed as the ALP candidate for the seat of Lowe, then held by (Sir) William McMahon. The seat was considered unwinnable and Kerr readily agreed to stand aside when Dr John Burton, a former secretary of the Department of External Affairs, returned from a diplomatic post to contest the election. Kerr took silk in 1953.

By the 1950s Kerr was increasingly distant from Evatt, who was vacillating between the right and left wings of the ALP. After the catastrophic split in the party in 1954–55, each side approached Kerr suggesting that he become a candidate, with strong suggestions of a leadership role. Considering the predominantly Catholic right-wing group, who would later form the Democratic Labor Party, to be too sectarian, and the ALP, having lost a large section of its right wing, to have moved too far to the left, he declined. He allowed his membership of the party to lapse.

In the late 1950s and early 1960s Kerr became prominent in a number of professional and other organisations, presiding over the Industrial Relations Society (1960–63), the New South Wales Bar Association (1963–64), the Law Council of Australia (1965–66), and the Law Association for Asia and the Western Pacific (1966–70). Reflecting the breadth of his interests, he served on the New South Wales Marriage Guidance Council (president, 1961–62) and was a board member of the Australian Association for Cultural Freedom. He helped to found the Council on New Guinea Affairs—an independent body that encouraged policies to prepare New Guinea for independence at an early date—and served on its board (1964–71).

By 1965 Kerr signalled a change in his political persuasion when he held talks with John Carrick, a leading member of the Liberal Party, on the possibility of his standing as a Liberal candidate in the State election. In the following year the Holt government appointed him to the Commonwealth Industrial Court and the Supreme Court of the Australian Capital Territory where ‘he proved to be an outstanding judge … and made some mark as a civil libertarian’ (Waterford 26 March 1991, 8). The government’s intention was to fold these jurisdictions into a new Federal court. Kerr might have become chief justice of the new court had it been formed in the 1960s but it was not created until 1976. He was appointed CMG on 1 January 1966, and served (1970–72) as a judge of the Supreme Court of the Northern Territory.

While a Federal judge, Kerr undertook three inquiries for the Commonwealth government. The first, known as the ‘Kerr Committee’ (1968–71), led to a substantial revision of Federal administrative law; another (1971), on parliamentary salaries, resulted in the establishment of a remuneration tribunal for Federal parliamentarians; and the third (1970–72) brought substantial reforms and improvements to the cumbersome system of pay and conditions for the armed forces. The inquiry was initiated by the minister for defence, Malcolm Fraser, who later recorded that Kerr frequently consulted him, even after Fraser’s resignation from the ministry in March 1971. He formed the view that Kerr was anxious to be seen as having done ‘the right thing’ (Fraser and Simons 2010, 226–7). In the crisis of October-November 1975 Fraser based his tactics on this insight.

In 1972 the government of Sir Robert Askin appointed Kerr as the eighteenth chief justice of the Supreme Court of New South Wales, a position he held until 1974. He reformed the administration of the court, appointing a chief executive officer and establishing a system of judicial committees. Like most chief justices before him, he also served as lieutenant governor and, at times, acting governor. On 1 January 1974 Kerr was appointed KCMG, on the recommendation of the Askin government.

Later in the year, after Governor-General Sir Paul Hasluck had declined an extension of his term, Prime Minister Whitlam offered the post to Kenneth Myer. He too declined and Whitlam approached Kerr. When seeking advice from judicial colleagues on whether to accept the offer, Kerr rejected the idea that it was a powerless position, pointing to the vice-regal prerogatives in the constitution. He accepted the appointment, which was announced on 23 February 1974. Kerr’s wife, who had suffered a stroke in 1965, fell seriously ill again after the announcement. She recovered sufficiently to accompany Kerr to London to be received by the Queen and to attend his swearing-in on 11 July, but relapsed and died on 9 September.

A meeting of the Executive Council in December authorised the minister for minerals and energy, Rex Connor, to borrow an extraordinary large capital sum for ‘temporary purposes.’ Kerr was unable to attend the meeting, but he subsequently signed the relevant minute without expressing concerns to Whitlam or questioning whether the proposal was supported by officials of the departments of the treasury and attorney-general; in fact, they were deeply opposed to it. His principal expressions of concern were made months later, when the government’s attempts to borrow from unorthodox sources were arousing considerable public controversy. In February 1975 he was appointed AC and on 29 April at Scots Kirk, Mosman, Sydney, he married Annie Dorothy Robson, née Taggart, a long-time friend. Whitlam and others later accused her of having played a ‘Lady Macbeth’ role in the crisis that would develop in November, an accusation that Kerr and his wife deeply resented.

During his first year Kerr travelled abroad considerably more than previous governors-general. He relished his public and ceremonial duties but gave less attention than his predecessors, Baron Casey and Sir Paul Hasluck, to the supervision of government business through the Executive Council, with its opportunities to give discreet advice and warning. The ‘loans affair,’ in which the government sought overseas borrowings up to $US4 billion, was only one of the crises afflicting the Whitlam government in 1975. A combination of its own failings and external pressures generated a strong impression of administrative and economic incompetence. Whitlam dismissed or demoted several senior ministers. Economic policy came under enormous pressure, as high unemployment and inflation generated intense policy arguments. Treasury officials were disaffected by the government’s policies and its search for loans from unconventional sources.

In Federal parliament in October, the Opposition, which outnumbered Labor in the Senate, deferred passage of supply bills until the government agreed to an election for the House of Representatives. Malcolm Fraser, leader of the Opposition, believed that if the government did not agree, the governor-general had the right, indeed the duty, to dismiss it, ensuring that an election would be held. With a skilful blend of deference and intimidation he told Kerr privately that whichever decision he made would be criticised, but he would be respected for doing ‘the right thing.’ Whitlam refused to call an election and insisted that the governor-general could act only as advised by the prime minister. It seems he was unaware of Kerr’s longstanding views on the reserve powers of the Crown.

Although there were precedents for a governor-general to seek constitutional advice from the chief justice, Whitlam rejected Kerr’s request that he should consult Sir Garfield Barwick. Without Whitlam’s knowledge, Kerr discussed the developing crisis several times with another High Court judge, Sir Anthony Mason, who affirmed a governor-general’s right to dismiss the government but advised Kerr to warn Whitlam of this intention. On 10 November Kerr obtained formal advice from Barwick, confirming his right to dismiss the government. Barwick’s role was well known and vigorously debated, but the extent of Mason’s informal advice was not publicly known until decades later.

On 11 November Kerr dismissed the Whitlam government and immediately commissioned Fraser to form a caretaker government pending a general election. The dismissal was a devastating shock to Whitlam, his party, and its supporters. In the ensuing election on 13 December the coalition, led by Fraser, won a landslide victory. Despite this electoral verdict, Kerr was subjected to intense criticism from the ALP and its supporters for the rest of his term. His public appearances were marked by controversy, although violent protests received more media coverage than expressions of support. After he was evidently intoxicated at the presentation of the 1977 Melbourne Cup, he was widely mocked.

Every aspect of the 1975 crisis was subject to vigorous debate for years afterwards. Some of the most common charges against Kerr had little foundation. The reserve powers that he exercised did exist. He was not an ALP man who had betrayed his mates. He did not act at the behest of the United States government’s intelligence agencies, although he may have been aware of their concerns over some of the Whitlam government’s policies. Nor had he conspired with Buckingham Palace or the British Government.  Documents released in 2020 indicate that senior officials at Buckingham Palace advised him that the reserve powers existed, but should only be used as the last resort. They also confirmed his fear that, if Whitlam had sought Kerr’s dismissal in order to secure a more compliant governor-general, the Queen would have been obliged, probably after some delay, to accept that advice. For that reason, Kerr did not warn Whitlam that he might dismiss the government, and did not signal his decision to Buckingham Palace until after the event. He argued that he thus protected the Queen from involvement in an Australian political crisis, but Palace officials shared the view that, while Kerr had the constitutional right to act as he did, he should have handled it more skilfully in order to achieve a political solution and avert a constitutional crisis.

After decades of controversy, the most substantial criticism of his action remained that he ‘should have spoken frankly with his Prime Minister from the start … [and] should … have warned wherever and whenever appropriate’ (Kelly and Bramston 2015, 301). Treating the matter as constitutional rather than political, he had relied heavily on Mason’s confidential discussions, Barwick’s written advice, and the opinions of some legal authorities, instead of seeking counsel from previous governors-general or other non-judicial sources. In 1977, in discussion with the Queen’s private secretary, Hasluck said, ‘If … Kerr had been diligent and attentive to the duties of his office, [and] … had established in Whitlam’s mind some greater respect for the office of Governor-General and … greater confidence in his (Kerr’s) own trustworthiness and wisdom, there would never have been a crisis’ (Bolton 2014, 464–5).

In April 1976 Kerr was elevated to GCMG and to AK in the following month. When he had been appointed governor-general for a five-year term, Whitlam had indicated that, if he were still in office, he would consider reappointing him for another five years. Kerr, however, resigned in 1977 and soon afterwards accepted Fraser’s offer to become ambassador to the United Nations Educational, Scientific and Cultural Organization, but the widespread outcry was such that he did not take up the position. Appointed GCVO on 30 March 1977 for his service as governor-general, that year he was also made a privy councillor on the recommendation of Fraser. He spent much of his retirement in Europe but returned to Australia several times in the 1980s. Survived by his wife, and two daughters and a son of his first marriage, he died at Kirribilli, Sydney, on 24 March 1991 and was buried in Northern Suburbs lawn cemetery.

Kerr’s life and career were reminiscent of a Shakespearean tragedy. His rise from working-class roots to the summit of the legal profession was based on considerable legal, political, administrative, and diplomatic ability, developed with energy and dedication. By the time he became governor-general, his ambition, vanity, and search for honours had overcome his sense of duty. Caught between two ruthless practitioners of politics, Whitlam and Fraser, he failed to give the strong leadership that the situation required. Had he shown greater moral courage from the outset, he might well have averted the crisis that divided the nation, damaged the office of governor-general, and fatally undermined his own reputation.