Whitlam and Kerr
For baby boomers like me 1974 and 1975 were big years. Richard Nixon was forced from office in the former and Gough Whitlam in the latter.
Some say there was no difference between the two events– executive power out of control and brought to justice the Washington way (ie Nixon) and the Westminster way (ie Whitlam). In the American case it was the "Watergate scandal" and in Australia's case the "Loans scandal".
In Australia's case however, there was a fundamental difference – the party that had won the previous general election – and which still had a majority in the House of Representatives – was de-throned at the same time as its leader with efforts by the speaker to remedy that situation after 11 November coming to nothing.
There seems little doubt that the Governor-General has reserve powers but not so much certainty about the extent of their applicability. However, given their apparent non-justicability the way they are interpreted by the Governor-General becomes crucial.
In Sir John Kerr's mind Whitlam's failure to compromise on the powers of the senate gave him no choice but to give way to the opposition. In effect he fundamentally disagreed with Whitlam's views on supply.
With this disagreement influencing him he kept his "thinking" secret from the Prime Minister. After all if Whitlam knew, he may have sought a replacement.
Let's just assume he had "warned" the Prime Minister who then went to the palace and succeeded in installing another Governor-General. It would have been a highly risky course for a Prime Minister to take but it too would have been a legal use of power – just as Kerr's was.
What Kerr said he was doing was avoiding a scenario which would embroil the Crown in a controversy. He saw that as more important than telling the truth to the Prime Minister.
Now let me take you back and remind you of a couple of facts. Remember the capacity of the Opposition to hold up supply by way of motion was only possible because of the "extraordinary" and "reprehensible" behaviour of the New South Wales and Queensland Premiers in replacing Labor senators (Murphy and Milliner) with Bunton (Independent) and Field (Labor Independent).
Remember too that a couple of Liberal senators were wavering and when put to the test may well have caved in.
Apparently none of this mattered to the Governor-General but it should have. Who knows what Gough Whitlam would have done if warned – or what the caucus would have decided.
Put simply Kerr was not willing to "risk" a politician solution to the problem. He was happy with the advice he received from others about what the law allowed (Barwick) and what the state of play was (Fraser).
It is at this point that supporters of Kerr bring out the "democrat" card. Whitlam should have gone to a general election and because he didn't it was the Governor-General's role to make it happen. This meant the people could decide and what could be wrong with that?
However, one might also ask: what would be wrong with a half senate election (The PM's advice taken to Kerr on 11 November)? This is usually answered by saying there were too many risks attached to it for Kerr to concur. Again, no trust in the elected government to find a way through on supply (or belief that the senate would have succumbed when pushed to the limits).
The truth is that the Governor-General had lost confidence in the Prime Minister. Unfortunately for Labor this view was shared by majority opinion at that time. But that doesn't make the Governor-General's actions an impartial and appropriate exercise of vice-regal power.
Like many legal figures before he could have interpreted the constitution in classic Westminster terms which is to say governments are formed and are ultimately accountable to the Lower House. This would have put him offside with conservatives – and perhaps some in Labor who like the idea of the senate as a lethal weapon in the battle for power.
More feasibly he could have warned Whitlam of his radically different view of the constitution. The fact that he didn't tells us a lot about his prejudices – he didn't trust Labor and they ought not to have trusted him.