A recent piece in The Australian concerned a proposal that in the 1970s then Prince Charles (now King Charles III) could become Governor General of Australia. Paul Kelly made the following observation regarding Sir John Kerr’s sacking of Gough Whitlam:

Kerr always knew the prime minister had the constitutional power to impeach him.

Certainly, Kerr and Whitlam believed in it. Technically it’s probably correct, but the only constitutional strength it has is under convention. This possibility was a major concern for Sir John Kerr and was the main reason he never explicitly warned Gough Whitlam that he might be fired.

My belief is that Kerr thought it would be a provocative move and, moreover, he believed it was unnecessary because Whitlam himself had repeatedly raised the possibility. The most notable of these took place at a state dinner in Yarralumla in honor of Malaysian Prime Minister Tun Abdul Razak. Whitlam said events could come down to a race for the palace.

Kerr wanted to avoid this, not only because he resented being sacked, but because he was determined Her Majesty The Queen would not be dragged into a political crisis in Australia.

The first point to make is that the prime minister did not have the power to impeach Kerr. The best he could do was to recommend to Her Majesty that Kerr’s commission be withdrawn. Whitlam told Professor David Flint long after the dismissal that this could be done by simply recommending a new Governor General. It would be up to the Queen to accept or reject this recommendation.

Kerr was aware of this possibility and, before the dismissal, he asked his official secretary, David Smith, to sound out the Palace’s attitude on this issue. Sir Martin Charteris, the Queen’s official secretary at the time, advised Smith that a telephone call from Whitlam would not suffice and that a written case would have to be presented, but that ultimately Her Majesty would have to act. on Whitlam’s advice.

I am not a lawyer and I will venture here. I’m going to suggest that Kerr, Whitlam and Charteris are all wrong. If not in practice, at least in theory or logic.

In my book Villain or victim – a defense of Sir John Kerr and reserve powers, I argue that the Governor General is analogous to a regent. A regent is someone who is a monarch in all but name, as the future King George IV was when, as Prince of Wales, he exercised all the royal prerogatives then remaining to the monarch during the debilitating mental illness of his father, King George. III.

Section 61 of our Constitution states that “the executive power of the Commonwealth is vested in the Queen and may be exercised by the Governor-General as the Queen’s representative”. There is no reservation to this provision. This means that the monarch has no powers that he can exercise in Australia, other than the appointment and removal of the Governor-General (which is covered in Section 2). The Governor General is the representative of the monarch, but he is not his deputy. In 1953, Nevil Shute published a novel titled In the wet. He postulated that Britain had abolished the monarchy and the new Queen Elizabeth II had come to live in Australia. If this happened today, King Charles III would have no powers other than those that derive from Section 2.

In the Westminster system, there is a convention that “the Crown acts on the advice of its Ministers”. This relates only to matters of government policy, legislation, regulation, etc. It was on this convention that Charteris based his belief that the Queen should have ultimately acquiesced in Whitlam’s request (if it had been made) that Kerr be recalled. I would say that the prime minister of Australia has no such relationship with the monarch. The only person to whom he can give advice that must be accepted (eg advice relating to government policy legislation, etc.) is the Governor General.

There is nothing in the Constitution regarding the appointment or removal of the Governor General. And there is no mention of the office of Prime Minister either. Section 64 of the Constitution states that Ministers of State are appointed by the Governor General and perform his duties as he pleases. It was the reserve power that enabled Sir John Kerr to constitutionally remove Gough Whitlam’s commission as Prime Minister.

The appointment of a Governor General is not the gift of the Prime Minister. By convention in Australia, it is the Prime Minister who recommends a person to the monarch to be his representative. Once this recommendation is accepted, the future Governor-General is the sole province of the monarch, as Section 2 states:

A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth at the pleasure of the Queen, but subject to this Constitution, such powers and duties of the Queen as Her Majesty may be satisfied to attribute to him.

In my opinion, a recommendation to the monarch to remove a governor general can only be based on the premise that he is no longer a fit person to represent the monarch, for example due to incapacity or misconduct. There can be no justification for a Prime Minister to arbitrarily recommend the removal of a Governor-General in his own interest, especially when he is in the process of executing constitutional prerogatives that may affect the Prime Minister himself. The governor general has a duty to uphold the constitution. In 1975, Whitlam intended to flout the Constitution, either by governing without supply (i.e. defaulting on government payments) or by spending money that had not been appropriated properly by the parliament.

I may be wrong in law in my assertion above, but I believe my logic is correct.

The Glorious Revolution of 1688 established the doctrines of parliamentary supremacy and responsible government. The government (the executive) is responsible to Parliament. It was Parliament that dispensed with the services of Charles I. It was Parliament that restored Charles II and eventually replaced James II with William and Mary. It was Parliament that determined in 1936 that Edward VIII could not marry Wallis Simpson and remain king.

It was Parliament that Whitlam challenged in 1975. It was Whitlam who threatened the doctrine of responsible government, not Kerr, as Paul Kelly claims.

Like it or not, the Senate had, and still has, the power to block supply. The then Chief Justice, Sir Garfield Barwick, argued that the refusal of the offer was the Senate’s vote of no confidence in the government. According to him, and according to others, this meant that Whitlam had to either offer his resignation or advise an election.

The fact that Sir John Kerr feared Whitlam would recommend his recall to the Palace compelled him to explicitly warn Whitlam that he would act on his reserve power if Whitlam forced him to. This failure, or this discretion as I prefer to call it, is the only substantive criticism that can be leveled at Sir John. This could have been avoided if the threat of arbitrary dismissal had not hung over Kerr’s head. A recommendation for the removal of the Governor General should be made only by Parliament and only on grounds of incapacity or embezzlement. Certainly not because the current government finds it inconvenient.

It could be legislated today. You could argue that a governor general, sheltered from the government of the day, might feel empowered to exercise his reserve powers capriciously. To which I would respond that we should rely on the integrity and discretion of the Governor General, the integrity of Parliament itself, and some convention or statutory provision that the Governor General should take independent advice, possibly the Chief Justice.

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