SIR John Kerr was a cautious man. As such he liked second opinions. Last Wednesday former High Court Chief Justice Sir Garfield Barwick named Chief Justice Sir Anthony Mason on the ABC TV A Life program. When questioned about the advice which he gave to the Governor-General, Sir John Kerr, before the dismissal of the Whitlam Government on November 11, 1975, Barwick said that he had cleared his opinion with fellow High Court judge Tony Mason.
Interviewer Bruce Donald has since claimed that he was “absolutely intrigued” by this revelation. According to Donald, the one remaining “big mystery” is “whether Sir Anthony Mason is the other person that Sir John Kerr in his autobiography revealed that he spoke to”. Donald opined that he did not think “we’re much closer to answering that”.
Bunk. I can reveal for the first time that Sir John Kerr did speak to Mason in the lead-up to the dismissal of the Whitlam Government. How do I know? Well, John Kerr told me some six years ago – that’s how. Moreover Barwick confirmed that he had discussed his advice with Mason during an interview I conducted with him on May 17, 1990.
Donald was out of his depth during much of his discussion with Barwick. At times he was uncertain of his facts (particularly on non-legal matters). On other occasions Donald’s demeanour suggested that he was more interested in his own opinions than in Barwick’s. As a result he neglected to ask obvious follow-up questions – namely what did Barwick think of Kerr and why did he check his advice with Mason (see side column).
In his important but underestimated autobiography Matters for Judgment(1978), Sir John Kerr defined his request to Barwick for advice as covering the Governor General’s “constitutional authority and power to make a decision of dismissal and force a dissolution”. In other words, having all but decided to dismiss the Whitlam Government, Kerr wanted assurance that he was empowered to take the action he was contemplating. Barwick’s response, in the form of a letter, was delivered to Kerr on November 10, 1975.
Reading Matters for Judgment in 1978, I became intrigued by two paragraphs in which Kerr referred to a third man (in addition to Barwick and himself) to whom he spoke about the constitutional crisis. Kerr wrote: “My solitude was tempered by conversation with one person only other than the Chief Justice. The conversation did not include advice as to what I should do but sustained me in my own thinking as to the imperatives within which I had to act, and in my conclusions, already reached, as to what I could and should do.
“The person with whom I spoke was not and has never been engaged in politics. His name has never been mentioned in any of the speculations about persons I might have consulted. The substance of our conversation is recorded and will some day, when for history’s sake the archives are opened, be revealed. I will not disclose it further.”
Kerr was good to his word. He did not publicly name names. But he did tell me in private conversations that the person who tempered his solitude was none other than Mason.
(Mason had held the position of Commonwealth Solicitor-General from 1964 to 1969 when he went to the bench of the NSW Court of Appeal. He was appointed to the High Court in 1972, becoming Chief Justice in 1987. Mason and Kerr had known one another for many years. In his book Barwick, David Marr described Mason as a “close friend who shared many of the Governor-General’s tastes in paintings, ideas and the law”.) I got to know Kerr in 1987 and we remained in touch until the onset of the terminal illness which led to his death in March 1991. As far as I am aware, I was one of a trio who regularly had lunch with Kerr in his Sydney office. The others were Ken Gee (a retired NSW District Court judge) and Laurie Short (the former national secretary of the Ironworkers Union). Both Gee and Short had known Kerr for close to half a century; compared with them I was a newcomer.
Contrary to some ill-informed rumours, in his final years Kerr was not senile or alcoholic. Nor was he in any sense a broken man. But he was, at times, obsessive. Moreover, Kerr’s long-time quest for self-justification led to many discussions of events in which he had been involved, including the dismissal of the Whitlam Government.
It was during one of these occasions that Kerr spoke to me about Mason’s involvement. He indicated that he had spoken with Mason about the legal implications of the constitutional crisis and had written up his understanding of these discussions. He advised that the record of the conversation would be released in due course, after spending some time in the archives. Bang goes Marr’s claim that “perhaps all” the High Court judges other than Barwick disapproved of his decision to give advice to Kerr.
Kerr also told me that he had asked Barwick to check out the advice which he had requested from him with Mason before formally advising him of his constitutional rights and duties as Governor-General.
So I had not one scoop, but two. However, Kerr requested that I not reveal this information during his lifetime. This assumed, correctly as it turned out, that he would predecease me.
I honoured my commitment to Kerr. But when interviewing Barwick in May 1990 I used my knowledge to question him about whether he had discussed his advice with anyone other than Kerr. Yes, he replied after a very long pause – he had discussed the matter with Tony Mason.
So I had a scoop after all. But, no, Barwick also requested confidentiality. Again I honoured my pledge. But now that Barwick has chosen to talk about Mason, on the record and in front of the television lights, I no longer feel bound by this commitment.
Kerr had always supported the legal opinion that the Governor-General and State Governors had significant reserve powers to resolve constitutional crises. He had agreed with the decision taken by NSW Governor Sir Philip Game to dismiss the Lang Labor Government in 1932. Judged against this background, it is not surprising that Kerr acted the way he did in 1975 when the Coalition in the Senate blocked Supply and Gough Whitlam refused to call an election.
In Matters for Judgment Kerr indicates that he had already made up his mind as to what action he would take if the crisis was still unresolved before he spoke to Barwick and the (then) unidentified third person. This has been confirmed by Barwick.
I have not discussed this issue with Mason.
However, being an inherently cautious man, Kerr wanted to make sure his proposed line of action was legally correct. He chose Barwick and Mason. The former was the Chief Justice who had spent six years in Parliament as a Cabinet minister in the Menzies Government. The latter was a personal friend who had no political background and whose constitutional expertise was beyond question. Mason has been widely praised by Whitlam and Professor Tony Blackshield, among others.
What else was Kerr to do? It is inconceivable that he could have been expected to make a crucial decision without high quality legal advice of any kind.
Kerr made clear to both Barwick and Mason that, as Governor-General, responsibility fell on him to make the political assessment of what action was required. Fortuitously it turns out that Kerr’s judgment that the constitutional crisis would not be resolved without an election has now been confirmed.
In The Unmaking of Gough (1976) Paul Kelly named five Liberals who “opposed blocking Supply” – Senators Alan Missen, Don Jessop, Neville Bonner, Eric Bessell and Condor Laucke. For a long time there has been a myth that some or all of these five might have weakened and crossed the floor to pass Supply if only they had more time to consider the issue.
November 11, 1975 was the last day on which an election could be called to be held before Christmas, by which time the constitutional crisis would have become a disaster. Kerr came to the view that the Coalition would hold its numbers in the Senate.
In Alan Missen: Liberal Pilgrim (Poplar Press) Anton Hermann reveals that Missen (the key Liberal opposed to Malcolm Fraser’s tactics) had no intention of crossing the floor “unless a solid core of colleagues were prepared to support him”. Hermann cites an important contemporaneous diary note made by Missen where he wrote that “nobody” would do so. Bang goes the Liberal defection myth.
It is one of the ironies of the Dismissal that, nearly two decades after the event, attention focuses on the role played by Kerr and Barwick and, now, Mason.
This overlooks the fact that the constitutional crisis was not caused by any of above. The responsible parties were Malcolm Fraser, who decided to block Supply in the Senate, and Whitlam who refused to advise an election. In the event Kerr, Barwick and Mason were involved in an event which was not of their making. The evidence indicates that their judgments were correct. No-one, including Donald, has demonstrated otherwise.