Sir John Kerr recruited the High Court to guarantee his dismissal of Gough Whitlam. Kerr obtained a legal opinion from the Chief Justice, Sir Garfield Barwick, and received critical counsel during the crisis from his close friend and High Court judge Sir Anthony Mason, a future Chief justice. His involvement of the court enraged Whitlam and launched a contentious debate about the proper role of the Chief justice.
On 20 September 1975, as a constitutional crisis over supply loomed, Kerr seized an opportunity to enlist one of his guiding stars in the law: Barwick. Kerr had been carefully considering his options for vice-regal intervention in the event that supply was denied in the Senate and Whitlam continued to govern without it. The Chief Justice of the High Court was attending a dinner of the Order of St Michael and St George at the Union Club on Bent Street in Sydney. Barwick presided over the high table with Kerr seated next to him.
Days earlier in Port Moresby, Whitlam told Kerr that if the Senate rejected the government’s appropriation bills then he was minded to present them for royal assent coupled with advice that the Senate had no legal power to reject them. Kerr was alarmed. He told Whitlam that if he did assent, the High Court would immediately hear a case to declare the ‘Acts’ to be invalid. At the dinner, Kerr raised this with Barwick and reported the conversation to Sir Martin Charteris at Buckingham Palace.
Sir Garfield told me he could not, for internal reasons in his Court, guarantee an early decision and expressed the view that the need for Senate acquiescence was quite clear. His opinion was that in the contingency under consideration I should refuse to assent but agreed that, alternatively, I should leave the matter to him.1
This was an informal yet unorthodox conversation. Kerr did not inform Whitlam about this discussion. But the Chief Justice gave the Governor-General informal guidance. First, that he could not guarantee an early decision on the validity of ‘Acts’ given assent without Senate approval. Second, Barwick said the Senate must approve appropriation bills. Third, Barwick gave an ‘opinion’ that Kerr ‘should’ refuse to give assent without the bills passing the Senate. And fourth, Barwick said Kerr could alternatively ‘leave the matter to him’—let the High Court determine if they should be invalidated.
Kerr had sought guidance from the Chief Justice rather than the nation’s law officers: Solicitor-General Sir Maurice Byers and Attorney-General Kep Enderby. It was clear he preferred Barwick’s opinion to the government’s law officers.
Kerr and Barwick omitted any discussion about giving royal assent to appropriation bills that had only passed the House of Representatives in their later accounts of the crisis. Indeed, Kerr made no mention at all of his discussion with Barwick at the dinner on 20 September in his memoir. In Barwick’s account of the crisis, he referred to this dinner discussion with Kerr and said the Governor-General was ‘very worried about what was going on in Canberra’. He thought it was likely Whitlam and Fraser would not ‘give way’ and ‘serious difficulties were likely to arise’.2
Kerr asked Barwick if he could see any way in which the High Court could be called upon to resolve a parliamentary deadlock. ‘I was quite unwilling to be drawn on the question about the parliamentary situation,’ Barwick recalled. ‘But I said that the matter appeared to be for the Parliament itself and not for the Court to resolve. I added that, in the long run, the matter might land on his, the Governor-General’s table.’ Kerr then asked Barwick if he would be willing to ‘advise’ him ‘if need arose’. Barwick, at this stage, was ‘content to temporise’ and said it would depend on what he was asked and the circumstances.3
The Chief Justice had been willingly conscripted by the Governor-General. ‘I had left the door open for the Governor-General to approach me,’ Barwick said.4 Although supply would not be denied by the Senate until the following month, Kerr was already thinking and planning ahead. It showed Kerr to be calculating while Whitlam had done next to no contingency planning. It is important to note that this was a Kerr initiative. Kerr could see what was coming if Whitlam and Fraser did not compromise or back down. He wanted Barwick with him—as an adviser and as constitutional insurance.
Kerr had begun his manipulation of Barwick at this dinner on 20 September. It was not Barwick who had manipulated Kerr. Kerr was the prime agent.
As a young barrister in the 1930s, Kerr identified intellectually and emotionally with Labor. HV ‘Doc’ Evatt—future Labor leader—was his mentor. ‘I wanted to become a Labor lawyer,’ Kerr reflected on these years. ‘I was a supporter of the Labor Party; I wanted to identify myself with the Labor Party and the trade unions and for a number of years I did.’5 By the time of the Labor split, in 1954–55, Kerr was ‘no longer a supporter of the Labor Party,’ he recalled. Labor, then led by his former mentor, was in ‘decline’, he thought, ‘so weak and disorganised and obviously unable to provide an alternative Government’.6
Kerr flirted with the breakaway Democratic Labor Party. Eventually, he found himself more at home with the Liberal side of politics. Indeed, by the 1950s, Kerr had transitioned, intellectually and emotionally, across the political divide and identified with the party of Robert Menzies. He was flattered by suggestions he seek Liberal preselection for a state or federal seat. He imagined himself being Prime Minister. Kerr gave full expression to this ambition in an oral history interview recorded for the National Library of Australia that was made available to the authors. ‘I think most of those who were seeking me out to consider joining the Liberal Party and going into politics, especially federal politics, had in mind the top leadership roles,’ he said. ‘Everybody knew that Menzies would some day go and where was the leadership to come from? Nobody really seemed to think of [Harold] Holt as a long-term prospect.’7
Along this journey, Kerr went from respecting and admiring Barwick to befriending him and revering him. Barwick had served as Minister for External Affairs and Attorney-General in the Menzies Government, and was appointed Chief Justice in April 1964. He was intellectually brilliant and supremely confident. ‘I recognised in him a great leader of the Bar both professionally and in its organisation,’ Kerr said of Barwick. They had long been ‘friendly’.8 Kerr had briefed Barwick in the 1930s and Barwick, as Attorney-General, briefed Kerr in the 1950s and ’60s. Now with his Labor sympathies well behind him, Kerr wanted to follow in Barwick’s footsteps.
‘Barwick, I think, played a role in my life, indirectly, similar to the role played by Evatt in earlier years,’ Kerr said.9 Barwick was a role model but not a mentor, like Evatt had been. It was more imagined than real. Barwick did have a mutual regard for Kerr, much like a senior counsel might have for his junior. But Kerr had convinced himself that Barwick was the role model in his post-Labor life. ‘I lost Evatt as a person in whose path to follow,’ Kerr said in his oral history interview, but ‘in many ways I adopted Barwick as a kind of pattern. Everything that he did I, in due course, did.’10
On Sunday, 9 November 1975, Kerr said he had made up his mind about dismissal in the event there was no compromise or backdown by either Whitlam or Fraser. He now decided to formally engage Barwick. ‘I would ask him if he were prepared to advise me as to my constitutional authority and power to make a decision of dismissal and force a dissolution, if I were minded to do so,’ Kerr explained. ‘I would seek his constitutional advice, not on what I should do, but in the form of an opinion as to whether I was empowered to take a step which I felt I should probably have to take two days later and which I believed to be within my powers.’11
Weeks earlier, on 19 October, Kerr had asked Whitlam if he could consult Barwick. Whitlam refused and expressly told Kerr not to speak to Barwick. Now Kerr phoned Barwick at his home at Careel Bay, Avalon, late on 9 November to ask if he would be willing to advise him ‘constitutionally’ as to his powers. Barwick said he would call at Admiralty House in Sydney the following morning, 10 November.
Barwick arrived just after 9 a.m. Kerr informed Barwick that he planned to terminate Whitlam’s prime ministerial commission and appoint Fraser caretaker Prime Minister with conditions, including that he guarantee supply and advise a double dissolution election. Kerr asked Barwick for an opinion on his constitutional powers to take this course of action. Barwick saw it as ‘a legal question’ and ‘not a political question’ and agreed to furnish Kerr with a written opinion and return for lunch to discuss it.12 Barwick presided over a sitting of the High Court in Darlinghurst and began drafting the letter.
He returned for lunch at 1 p.m. with the letter still in draft form and not completed. Over lunch, Barwick informed Kerr that he would advise that he had the requisite constitutional powers to take his proposed course of action. Barwick completed the letter after lunch. It was then typed and signed, and Barwick’s driver, Bert Reid, delivered it to Kerr at Admiralty House at around 4 p.m. Kerr returned to Canberra that afternoon. Both of Kerr’s meetings with Barwick were published in the vice-regal notice column in newspapers on 11 November. The government missed the warning sign.
Barwick saw no issue with advising Kerr; indeed, he was an eager participant. He thought he put the steel into Kerr’s spine as the hour of decision neared. He was mistaken in this view; Kerr needed no encouragement. Barwick did, however, strengthen his hand. Barwick participated, he argued, because he did not think the matter was justiciable—a matter that could come before the High Court. He was aware that other Chief Justices had advised Governors- General—he had advised Sir Richard Casey when Harold Holt disappeared in the sea off Portsea in Victoria in December 1967—and it was not unusual to provide advice. But Barwick had been a Liberal MP and Attorney-General in the Menzies Government. His action would never be viewed as completely impartial.
Barwick’s letter to Kerr has been a matter of debate. The key section of the two-page letter argued:
First, the Senate has constitutional power to refuse to pass a money bill; it has the power to refuse supply to the government of the day. Secondly, a Prime Minister who cannot ensure supply to the Crown, including funds for carrying on the ordinary services of government, must either advise a general election (of a kind which the constitutional situation may then allow) or resign. If, being unable to secure supply, he refuses to take either course, Your Excellency has constitutional authority to withdraw his Commission as Prime Minister.13
He further argued, rather more tenuously, that the Prime Minister needed to maintain the confidence of both the House of Representatives and the Senate. He noted that a Prime Minister in the United Kingdom can secure supply by maintaining the confidence of the House of Commons as the House of Lords has no power to deny supply and is not a popularly elected body. But in Australia, a Prime Minister ‘cannot secure supply’ without having the ‘confidence’ of both the House of Representatives and the Senate:
there is an analogy between the situation of a Prime Minister who has lost the confidence of the House of Commons and a Prime Minister who does not have the confidence of the Parliament, i.e. of the House of Representatives and of the Senate. The duty and responsibility of the Prime Minister to the Crown in each case is the same: if unable to secure supply to the Crown, to resign or to advise an election.14
This letter challenged the long-held convention that a Prime Minister must only command the support of the House of Representatives. It was a flawed interpretation of the meaning of ‘confidence’ within the Australian political system as the Senate plays no role in determining who can form a government and accept a prime ministerial commission. Barwick could not resist ending his letter by confirming that Kerr had the power to dismiss Whitlam and, moreover, it was his ‘constitutional authority and duty’ to do as he had determined. It was an unnecessary embellishment which only served to highlight Barwick’s determination to push Kerr to dismissal. It signalled that Barwick worried that Kerr might back down. But Barwick need not have been concerned.
The significance of Barwick’s letter is that Kerr had the endorsement of the Chief Justice for his dismissal of the Prime Minister. Kerr did not need approval. But he won a degree of insurance in the event of a High Court challenge. Kerr could inform the Palace that he had consulted the Chief Justice and acted constitutionally. Barwick’s letter was sent to Buckingham Palace along with Kerr’s notification that he had terminated Whitlam’s commission:
Before taking the final step, although I had already made up my mind, I consulted Sir Garfield Barwick as to my authority and duties in the present situation. On a confidential basis, because it is not to be disclosed without his permission except ultimately for historical purposes, I send you a copy of the letter which he wrote to me after our discussions.15
Charteris noted Barwick’s letter in his reply to Kerr on 17 November: ‘It seems to me, as a very interested observer, though one not very well versed in the Australian Constitution, that your action, buttressed as it is by the opinion of the Chief justice, cannot easily be challenged from a constitutional point of view however much the politicians will, of course, rage.’16
Barwick’s letter to Kerr on 10 November was made public on 18 November—a week after the dismissal—as an endorsement of Kerr’s actions. But this was not the full story of Kerr’s discussions with Barwick. Kerr wrote in his memoirs that his ‘only discussion with Sir Garfield Barwick on the subject of the exercise of the reserve powers, is fully related here’.17 But there were other conversations that he decided not to disclose.
In 2013, the authors accessed Barwick’s personal file on the dismissal. The file was titled ‘Dismissal of Labour [sic] Government, 1975–1979’ and contained over 350 pages—articles, other legal opinions, notes, memos and letters.18 After lunch on 10 November but before Barwick had completed his letter, Kerr phoned with drafting instructions. Barwick’s associate noted their conversation with Kerr and passed it to the Chief justice:
the Governor-General just phoned and asked that the following message be sent in to you: ‘I don’t want to prevent by anything I do the possibility of compromise so therefore if [Barwick] would feel at liberty to use the phrase that he was contemplating using in a slightly different form, I would have some flexibility and therefore if he used the phrase “the course of action which you have decided to take unless an immediate compromise is reached” or something like that. But whatever you say is OK by me.’19
Kerr was nervous about what Barwick might write in his letter. He wanted to avoid the appearance of having made up his mind. Nor did Kerr want it to look like Barwick had encouraged him to act. It was an improper conversation. Barwick, always his own man, ignored the suggestion. He did not refer to any last-minute ‘compromise’. He thought Kerr should have dismissed Whitlam weeks earlier.
Barwick had two further interactions with Kerr before the dismissal. After Kerr had read Barwick’s letter in the afternoon of 10 November, he phoned the Chief Justice at his chambers in Sydney. Kerr wanted to know if he would show the letter to fellow judge Anthony Mason, a former Solicitor-General, to obtain his view. Barwick visited Mason in his chambers, told him the ‘substance’ of the letter and said Kerr would like to know his view. Mason replied that he agreed with it ‘without any reluctance’, according to Barwick.20
Kerr rang Barwick, again, the following morning—the day of the dismissal. He wanted advice on how to handle Whitlam. Neither Kerr nor Barwick mentioned this conversation in their respective memoirs. But Barwick dictated a note at 9.45 that morning, after the call, and kept it in his dismissal file. Kerr told Barwick that he would see Whitlam at about 1 p.m. What if things didn’t go smoothly?
[Kerr] said he had to consider the possibility that the Prime Minister might have cabled the Queen informing her that he, the Prime Minister, had lost confidence in the Governor-General and perhaps seeking the withdrawal of his commission. He said that whilst that was an eventuality which might seem far-fetched it had to be recognised as a possibility. He said that nonetheless he proposed to follow the course which he had outlined to me upon which I had given him advice.21
Kerr was edgy, worried the dismissal might not go to plan. His paranoia centred around Whitlam contacting the Palace before any dismissal. It is a tantalising possibility: was Whitlam about to ambush Kerr with a surprise dismissal? He was also concerned that Whitlam had read the vice-regal notice in that day’s newspapers. What if Whitlam asked about consulting Barwick? Kerr told Barwick he would confirm their conversations and the provision of advice. What should he do if Whitlam wanted to see Barwick’s advice? The Chief Justice told the Governor-General what to say: ‘I said that I thought the advice was given to him and that it ought not to be publicised until he, the Governor-General, had acted in the manner which he had outlined to me; that is to say, it should be confidential to the Governor-General until the action had been taken. Thereafter it should, of course, be publicised.’22 This is the precise course that Kerr took. ‘To the extent that he respected and accepted my opinion, it can be said that I had some influence in his pursuit of the course on which he had decided,’ Barwick thought.23
Kerr’s involvement of the High Court was deeper than Barwick. In his memoir, Kerr wrote about another secret adviser. ‘My solitude was tempered by conversation with one person only other than the Chief justice,’ he cryptically wrote. ‘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.’ Kerr declined to name this person.24 It was Anthony Mason, his friend, who in August 1972 had been appointed as a justice of the High Court.
In January 1994, Barwick revealed that Mason had prior knowledge of, and approved, the dismissal during an interview with Bruce Donald on the ABC.25 Days after this interview went to air, political commentator Gerard Henderson further revealed in The Sydney Morning Herald that Kerr had directly sought Mason’s advice prior to the dismissal.26 The full extent of Kerr’s talks with Mason were disclosed in several notes Kerr left for history in his papers at the National Archives of Australia.27 These notes were revealed by Jenny Hocking in the second volume of her biography of Gough Whitlam published in 2012. Mason wrote a lengthy statement about his talks with Kerr which was prepared before Hocking’s book was published but it was made public after. It was subsequently deposited in the National Library of Australia.28
The Kerr notes and the Mason statement provide complementary but often differing accounts of their discussions before, during and after the constitutional crisis in October–November 1975. Kerr expected that nobody would see his notes until all those concerned ‘are dead’. He judged his conversations with Mason to be ‘historically important’ during the crisis.29 Kerr made a note about these talks on 21 October 1975 and then revised them in the first half of 1981. Mason said he was not aware of Kerr’s notes until they were made public in 2012. He urged caution in how they are read. ‘The documents are neither a complete nor accurate record of our conversations,’ Mason said.30 Yet Mason revealed more of their engagement than did Kerr and his own statement was in many ways more damaging for both men.
Kerr said he valued Mason for his ‘intellectual quality, legal knowledge and personal integrity’. Mason agreed Kerr was ‘a close friend’ and they met ‘from time to time’ at their respective residences in Sydney and Canberra. They discussed the offer of appointment to Kerr as Governor-General in mid-1974. Mason advised that it would not be particularly challenging and he would be ‘rubber-stamping decisions made by others’. Kerr disagreed and told Mason that he could ‘contribute to policy issues’ and they discussed the reserve powers. At Mason’s instigation, Kerr participated in several tutorials on the reserve powers with academics at the Australian National University in September 1975 as a kind of refresher course.31
Kerr said his discussions with Mason were not about seeking advice but reassuring him about his own judgements. Mason said that he never offered Kerr any encouragement to dismiss Whitlam. The critical disagreement between them was Mason’s advice on the dismissal—Mason said Kerr should warn Whitlam before acting. ‘I said to Sir John that he should warn the Prime Minister that he would terminate his commission if he did not agree to hold a general election,’ Mason recalled. ‘The warning was not heeded.’32 If Mason did offer this advice, it is a significant omission from Kerr’s notes.
The conversations between Mason and Kerr began, according to Mason, well before 12 October as a crisis loomed, and continued until the afternoon of 11 November. Kerr said their ‘running conversation’ took place from 12 October to 10 November. Mason said they first discussed the reserve powers in August. Kerr, according to Mason, said then that ‘an occasion might arise for him to exercise the reserve powers, dismiss Whitlam and commission Mr Fraser to form a caretaker government for the purpose of securing supply and holding an election’. Kerr, in his account, says they discussed ‘the existence of the reserve powers’ and his role in a future crisis.
During their talks, Kerr confided to Mason his concern about being recalled by Whitlam if the Prime Minister thought his commission might be terminated. Kerr told Mason that Geoffrey Yeend from the Department of Prime Minister and Cabinet had informed him, confidentially, that Whitlam would take this step if he feared his own dismissal.
Kerr and Mason discussed how and when the Governor-General should consult with Barwick. Mason told Kerr not to approach Barwick until it was time for the Governor-General to intervene. He warned against approaching Barwick around mid-October when Bob Ellicott’s memorandum was released because Barwick might concur with Ellicott and recommend immediate dismissal. They agreed this advice would be ‘disastrous at that stage’ as supply had only recently been denied. The issue in engaging Barwick was one of ‘timing and tactics’.33 Mason was advising Kerr on the manipulation of the Chief justice and how to get Barwick’s advice in the optimal manner.
The Governor-General wanted Mason to provide alternative advice to the law officers, an extraordinary request. Kerr arranged for a copy of Ellicott’s opinion to be sent to Mason’s home. He asked Mason to provide him with advice on the Ellicott opinion and the forthcoming law officers’ opinion. In his notes, Kerr said Mason was happy to do so and did not believe his position on the High Court ‘rendered that course of action undesirable or impossible’. Kerr even said Mason agreed to allow these opinions to be published in future ‘if it were ever needed’ to defend the Governor-General’s integrity.34
But the two men disagreed on the fundamentals. Mason rejected these claims. In his statement, Mason said he did not receive a copy of the Ellicott opinion, and he did not agree to provide his own opinion on Ellicott’s views or that of the law officers.
As the crisis neared its climax, the Kerr–Mason dialogue entered a new phase. They had had several conversations on 9 November—during the day at Lady Kerr’s house at North Sydney and in the evening before and after dinner at Admiralty House.
In their first conversation, Kerr told Mason that ‘after careful consideration of all that had happened he had decided that he had no alternative but to dismiss Mr Whitlam and to commission Mr Fraser to form a caretaker government’. Both men agree on this. Kerr said Mason told him: ‘I am glad of that. I thought that I might have to urge that course upon you.’ Mason argues he never said this. ‘My comment was not, and should not have been understood as, encouragement to dismiss the Prime Minister,’ he said.35 Mason said he was relieved because Kerr’s intended action would facilitate holding an election before the holidays.
Kerr gave Mason the law officers’ ‘draft’ opinion on the reserve powers and the Solicitor-General’s opinion on Whitlam’s financing arrangements as an alternative to supply. Mason did not agree with the law officers’ view and declined to give an opinion on the financing arrangements. Kerr, at this point, pressed Mason and asked for a written opinion rebutting the law officers’ ‘draft’. Kerr wanted an opinion that he could ‘rely on’. Mason told Kerr: ‘I could not do that without consulting Barwick.’ The upshot was that Kerr, according to Mason, phoned Barwick but was unable to reach him. As Mason was about to leave, he told Kerr that ‘unfortunately it was unfolding like a Greek tragedy’.36
Later that evening, Kerr informed Mason that he had now spoken to Barwick and would be seeing him the following morning. After dinner, Kerr told Mason he would meet with Whitlam and ‘simply hand him a letter of dismissal’. Mason reiterated his view that Kerr should warn Whitlam that he had no alternative to dismissal if the Prime Minister refused to advise a general election. Mason said Kerr replied: ‘I know that.’ In Mason’s account, he emphasised that without a warning, Kerr ‘would run the risk that people would accuse him of being deceptive’.37
Mason denied assisting Kerr with his explanatory statement about the dismissal, as the Governor-General claimed. But he did, at Kerr’s request, prepare a draft letter of dismissal that was delivered early the next morning. Kerr did not use the Mason draft but said he incorporated some of Mason’s ‘suggestions’ into the letter of dismissal and his explanatory statement.
It was improper and imprudent for Mason to draft a dismissal letter. Mason’s dealings with Kerr were kept secret from the Chief Justice as well as the Prime Minister. His deception of Barwick reached an extraordinary level. When Barwick as Chief Justice showed Mason, at Kerr’s request, the formal advice on dismissal, Mason declined to tell Barwick that he already knew about the advice and had been counselling Kerr for months.
But Kerr, having relied on Mason before the dismissal, returned to him after the dismissal. In the afternoon of 11 November, Kerr, under pressure, sought Mason’s advice. With the Speaker, Gordon Scholes, eager to present to Kerr the parliament’s no-confidence motion in Fraser as caretaker Prime Minister, Kerr phoned Mason. It was a delicate situation and he wanted guidance. Mason was firm—he advised the Governor-General to ignore Scholes as the ‘resolution was irrelevant’. Mason told Kerr that Fraser had been commissioned ‘to form a caretaker government for limited purposes to hold a general election’.38 Kerr did not see Scholes before dissolving the parliament.
Kerr said in his note, written in 1975 and finalised in 1981, that Mason wanted his role kept secret. But Kerr felt differently. He wanted Mason’s involvement known to history. He wrote of Mason: ‘as he played a most significant part in my thinking at that critical time, and as he will be in the shades of history when this is read, his role should be known’.39
There is another judge that Kerr implicated in the dismissal: Sir Ninian Stephen. While finalising his note about Mason, Kerr revealed that he had had lunch with Stephen in London on 15 May 1981. Kerr claimed that Stephen was in court with Mason and Barwick on the morning of 10 November 1975 and did not attempt to dissuade Barwick from giving advice. Kerr claimed that Stephen saw the draft letter before lunch and said that ‘he was very pleased to have been asked for his advice’. However, Stephen told Paul Kelly that he had no advance knowledge of the dismissal in a 1995 interview. ‘The whole thing came as a complete surprise to me,’ Stephen said. ‘I think I am quite clear in my own mind that I knew nothing until the news broke publicly.’40 Given this statement, we find Kerr’s account to be unconvincing and self-serving. It has not been verified by any other source.
Kerr was underestimated in his ability to exploit the High Court and benefit from the advice of both Barwick and Mason. The idea that Barwick put the steel into Kerr to dismiss Whitlam is exaggerated. The real point is that Kerr drew upon both Barwick and Mason for personal assurance and legal reinforcement. Before the denial of supply in October 1975, Kerr was drawing the High Court into his net in any future vice-regal action using the reserve powers.
He began discussions with Mason in August and with Barwick in September. As the crisis neared climax, Kerr wanted the High Court on his side, and both Barwick and Mason were willing to assist. This was a calculating Governor-General who relied on Mason and exploited Barwick. Neither judge ever conceded improper behaviour.
There has been a growing view among Barwick’s recent successors that it was unwise for the Chief Justice to offer advice to Kerr on dismissal, in secret and against the Prime Minister’s instructions. It is unlikely, given the public reaction to Barwick’s controversial role, that a future Chief Justice would again advise a Governor-General on the exercise of a reserve power. A Chief Justice today would be more attuned to the need to be impartial to maintain confidence in the court.
History’s verdict on Mason is more severe. While the Mason court is regarded as one of the most significant in Australia’s history, Mason’s role in advising Kerr on his exercise of the reserve powers and drafting a letter of dismissal has tarnished his reputation. The fact that Mason refused to disclose his dialogue with Kerr for so many years points to a need for concealment. By contrast, Barwick wanted his advice to be made public and it was published within days.
Mason was unmasked by Kerr from the grave. The reality is that Mason would not have been appointed Chief Justice in February 1987 by the Hawke Cabinet if ministers had known of his role in the 1975 crisis. Bob Hawke and Paul Keating made this clear in interviews with the authors. ‘In terms of his acceptability to a Labor government, it would have brought him undone,’ Hawke said.41