Former High Court Chief Justice Sir Anthony Mason has written an account of his discussions with Sir John Kerr. The account appears in Fairfax newspapers today.
It offers an extraordinary insight into a series of discussions between then Justice Mason and Kerr. Whilst Mason disputes some dates and certain elements of Kerr’s account as presented in Hocking’s book, he largely confirms an ongoing and sustained series of discussions about the mechanics of dismissing Whitlam.
The key difference between Mason’s account and Kerr’s is that Mason says he advised Kerr to warn Whitlam that he would terminate his commission if Whitlam did not agree to a general election. Mason denies that he encouraged Kerr to dismiss Whitlam.
Mason says he played no part in preparing Kerr’s statement of reasons but that he did draft a letter terminating Whitlam’s commission, although it was not used by Kerr.
Mason says that Kerr rang him on the afternoon of November 11 and they discussed what to do about the Speaker’s desire to inform Kerr of the House of Representatives motion of no-confidence in Fraser.
Thirty-seven years on from The Dismissal, the revelations in Hocking’s book and Mason’s statement make significant amendments to the standard chronology of events before and during the Supply crisis.
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Text of statement by Sir Anthony Mason, as published in Fairfax newspapers on August 27, 2012.
This statement records my recollection of my conversations with Sir John leading up to the termination of the Prime Minister’s commission on November 11, 1975 and conversations thereafter relating to that event.
I make the statement in response to documents placed by Sir John Kerr in the National Archives which were recently released and have been discussed by Professor Hocking in volume two of her biography of Mr Whitlam.
The documents relate to conversations with me in October – November 1975 preceding the dismissal of the Whitlam government. They incorporate a shorter version prepared on October 21, 1975. The documents are neither a complete nor an accurate record of our conversations, particularly of our conversations on November 9.
Sir John prepared the documents for future publication without showing them to me or checking their accuracy with me. Nor did I become aware of their contents until after they were released by the National Archives. In responding to them some 30 or so years later, I note that other documents lodged by Sir John are still to be released.
I was, as Sir John says, a close friend, as was my wife. He had discussed with me whether he should accept appointment as Governor-General. So I was willing to talk to him about the issues that were to confront him in October-November 1975 and to give him my views on the exercise of the Governor-General’s reserve powers to dismiss a Prime Minister.
In our conversation relating to the offer of appointment as Governor-General, he told me that he was discussing the matter with me at the request of his first wife. He wanted to accept the appointment because he thought it would be interesting and he had achieved as much as he could in the Supreme Court of New South Wales by introducing important administrative reforms in the short time he had been Chief Justice.
In response to my view that appointment as Governor-General would not present a challenge and that he would find himself formally rubber-stamping decisions made by others, he did not agree. He thought that there would be opportunities to contribute to policy issues and he referred to the reserve powers and the possibility that an occasion could arise for their exercise. I did not understand this to be a prediction but rather an argument that I was underestimating the importance of the office of Governor-General. Our discussion ended with my saying that I could not advise what he should do and that he would have to make up his own mind whether or not to accept the appointment.
After his appointment as Governor-General, I saw Sir John from time to time at Admiralty House and Yarralumla, some times elsewhere at official functions and once at least at our home in Mosman and our place in the Blue Mountains. Our conversations relating to, and preceding, the events of November 11, 1975 took place at Yarralumla, Admiralty House, what I understood to be Lady Kerr’s house at North Sydney and by telephone.
In his autobiography Matters for Judgment, Sir John said in 1978 of our conversations leading up to his termination of Mr Whitlam’s commission as prime minister: “The conversation(s) 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”.
That statement was an accurate description of the substance of our conversations on November 9 and on other occasions, except in so far as I informed Sir John that he should warn the prime minister that, if he did not agree to hold a general election, his commission would be terminated.
There are a number of inconsistencies between Sir John’s version of our relevant conversations and my recollection of them. The major points of disagreement are:
- The relevant conversations began before October 12, 1975.
- 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. The warning was not heeded.
- I did not encourage Sir John to dismiss Mr Whitlam.
- I did not volunteer or agree to give a written opinion on Mr R J Ellicott QC’s press statement or document of October 16, 1975 and the draft Law Officers’ opinion and allow my opinion to be made public.
- I played no part at all in the preparation of Sir John’s statement of decision, nor was I asked to do so, though I prepared, at his request, a draft letter terminating Mr Whitlam’s commission (which Sir John did not adopt).
My first conversation in 1975 with Sir John with reference to the reserve powers was at Yarralumla in August, not October 12, as Sir John says. In that conversation he mentioned that an occasion might arise for him to exercise the reserve powers, dismiss Mr Whitlam and commission Mr Fraser to form a caretaker government for the purpose of securing supply and holding an election. He referred to Dr Evatt’s monograph “The King and his Dominion Governors” relating to the reserve powers which, as Matters for Judgment records, he re-read before accepting his appointment as governor-general.
I said that, in my view, the incumbent prime minister should, as a matter of fairness, first be offered the option of holding a general election to resolve any dispute over supply between the two Houses and informed that if he did not agree to do so his commission would be withdrawn. I pointed out that it would be to the advantage of the prime minister to hold such an election as the serving prime minister rather than contest it as a prime minister who had been dismissed by the governor-general. Sir John did not question my view then or at any time in his discussions with me.
Shortly thereafter, Sir John told me that he had been informed confidentially by Mr (later Sir) Geoffrey Yeend, then a senior officer and later secretary of the Department of Prime Minister and Cabinet, that the government was planning to seek the termination by the Queen of his appointment as governor-general if he indicated that he intended or was minded to terminate the prime minister’s commission. I don’t remember whether Sir John said that Mr Yeend conveyed this information directly or in coded words. Sir John did not inform me of his response to Mr Yeend.
In his archival note of the conversation with Mr Yeend, Sir John attributes to Mr Yeend the inquiry:
“What would happen if you were to consider taking action yourself? Your own position could be in doubt. There could be a race to the palace”.
Sir John’s reply as noted was:
“There would be no race to the palace, Geoff. I do not have to go to the palace”.
In the note Sir John records that he “regretted what he said in reply” to Mr Yeend because it was not clear whether Mr Yeend was speaking in a personal capacity. Sir John records that what Mr Yeend said “hit me hard” and “shattered” me.
In a subsequent conversation on or before October 12, Sir John informed me that he had it in mind to consult the chief justice in the event that it became necessary to resolve a crisis over supply, though he had some concern over possible perceptions arising from the chief justice’s former association with the Liberal Party. He believed that the chief justice would be willing to advise him. Sir John also said that, if the Senate were to defer or fail to grant supply, it would be necessary to allow some time to pass in order to test the Senate’s resolve.
Coming now to the October conversations and our discussion of Mr Ellicott’s view, as related to me by Sir John, that the governor-general should take immediate action to resolve the crisis, I said to Sir John that, if he considered it legitimate or necessary to consult the chief justice, it would be unwise to do so at that time as the chief justice might agree with Mr Ellicott’s view that immediate action be taken. But I did not describe or regard that view as “radical”. Nor did I describe the consequences as “catastrophic” or “disastrous”.
I certainly did not agree to give a written opinion on the Law Officers’ advice or on the Ellicott document (which I had not seen), as Sir John claims, though I had suggested that he should ask the prime minister to obtain the Law Officers’ opinion on the governor-general’s power to terminate the commission of the prime minister. Sir John said he would do that. I did not receive a copy of the Ellicott document, despite Sir John’s claim to the contrary.
At about this time Sir John informed me that the prime minister had agreed, at Sir John’s request, to him seeing the leader of the opposition (Mr Fraser). Sir John did not discuss with me how this came about. Nor did he ever communicate to me his conversations with Mr Fraser, except to say later that the Senate remained firm in its resolve in not granting supply, a statement which I assumed was based on information provided by Mr Fraser. Nor did Sir John ever discuss with me his conversations with Mr Hayden about the government’s financial position.
Sir John was very much aware of the possibility that the prime minister might seek to have him removed from office. Apart from his account to me of his conversation with Mr Yeend, he told me of the prime minister’s remark before the state banquet in honour of the prime minister of Malaysia, “It could be a question of whether I get to the Queen first for your recall or you get in first with my dismissal”.
About a week before Sunday, November 9, 1975, I had a conversation with Sir John at Admiralty House. In this conversation he said that he had not received the Law Officers’ opinion and did not know the reason for the delay. Sir John asked me whether, in the event that the issue of the dismissal of the prime minister were to go to the High Court, the chief justice would sit if he had given a written opinion on the matter. I replied that I did not know the answer to that question. Sir John did not ask me whether, in the event that the matter went to the High Court, I would sit on the case. Nor did he ask me for my view on the likelihood of the matter going to the High Court. There was no discussion of either of these questions. Whatever may be thought now, at the time I was of the view that the matter was unlikely to come before the High Court.
Towards the end of our conversation, Sir John said that he would resolve the crisis one way or the other without asking for a written opinion from the chief justice or “another member of the High Court”. I think that it was in the course of that conversation and not later that Sir John said that the prime minister had told him that he (Sir John) was not to consult the chief justice but he did not disclose when and in what circumstances the prime minister had made that statement.
Our next conversation, the first conversation on November 9, took place at what I understood to be Lady Kerr’s house in North Sydney, where Sir John asked me to meet him. On my arrival, Sir John said that we were meeting at the house because the prime minister was at Kirribilli House (adjacent to Admiralty House) and he (Sir John) did not want the prime minister to know of our meeting. That first conversation was in the late morning or early in the afternoon but I am confident that it was not in the late afternoon, as Sir John states. The second conversation, which was fairly brief, took place at Admiralty House before and at the end of dinner with Sir John and Lady Kerr that evening. My wife and I were the only guests.
The substance of the first conversation began with a statement by Sir John in which he said that, after careful consideration of all that happened he had decided that he had no alternative but to dismiss Mr Whitlam and to commission Mr Fraser to form a caretaker government. He said he had information from the Electoral Commission that if an election was to be conducted and completed before the Christmas vacation, it had to be held on December 13. To enable such an election to take place instructions for it must be given no later than the next Wednesday. Sir John then handed me two opinions. The first was the “draft” opinion by the Law Officers; the second was the solicitor-general’s opinion on alternative financing. Neither opinion was sent to me in advance, as the archival documents state.
I then read the “draft” opinion and simply said “I don’t agree with it”. Sir John said “Will you give a written opinion to that effect that I can rely on?” I replied “I could not do that without consulting Barwick”. I also said that it would not be appropriate for me rather than the chief justice to give such a written opinion. Sir John then said “Well, I will ask Barwick.”
After I read the opinion on alternative financing, I said that I was not prepared to express a view as to its legal efficacy, but went on to say that I thought that the private banks would be unlikely to act on it. Sir John then left the room and telephoned the chief justice and was told that he was not in but would be available later in the day. I had no discussion with Sir John then or later about what he would or would not say to the chief justice.
At the end of our first conversation I expressed my relief that Sir John had made a final decision to resolve the crisis by dismissing the prime minister because I thought that the crisis should be resolved by a general election to be held before the summer vacation and any further delay could lead to instability. I do not think that I expressed to Sir John the reason for my relief. I assumed that this reason lay behind Sir John’s announced decision to terminate the prime minister’s commission because that decision would facilitate the holding of a general election before the vacation. My comment was not, and should not have been understood as, encouragement to dismiss the prime minister as Sir John had already announced his decision to take that step.
As I was about to leave I said to Sir John that unfortunately it was unfolding like a Greek tragedy whereupon he called out to Lady Kerr who was upstairs and asked her to join us. He explained to her what he had decided to do. When I said that the decision was bound to be controversial and attract strong criticism, he said “Tony, you don’t know these people. I do. It will be much worse than you think”. It was then that he invited my wife and me to dinner that evening.
On our arrival at Admiralty House in the evening, in response to my inquiry, Sir John told me that the prime minister had left Kirribilli House earlier in the day. Sir John also said that he had spoken to the chief justice and would be seeing him the next morning. Later, at the end of dinner, Sir John told me that he would see Mr Whitlam and simply hand him a letter of dismissal. I then said that before doing so he should say that he had no alternative but to dismiss the prime minister unless he was willing to hold a general election.
Sir John replied “I know that”. I told him that, if he did not warn the prime minister, he would run the risk that people would accuse him of being deceptive. I also said that he would need to consider the possibility that the prime minister might ask for time to consider his position and, if so, what response should be made.
Sir John made no comment but immediately asked me if I would draft a letter terminating the prime minister’s commission which I agreed to do. The draft was delivered early the next morning at Admiralty House. The draft was short, consisting of about three sentences, identifying the failure to obtain supply as the critical event. The actual letter of dismissal was in very different terms. Sir John did not ask me to draft paragraphs for inclusion in his statement of decision. I played no part at all in its preparation. Nor was it ever shown to me or its contents discussed with me. Some time later Sir John returned the draft to me.
In the course of the conversation which took place after dinner on November 9, I said to Sir John that he would be criticised for not telling the prime minister that he (Sir John) was disregarding his instruction not to consult the chief justice. Sir John said that Barwick’s attendance at Admiralty House the next day would appear in the vice-regal notes and that would constitute sufficient notice to the prime minister.
Late on Monday, November 10, 1975 Sir John telephoned me to ask whether the chief justice had discussed with me the advice he (Sir John) had received from the chief justice. I said that the chief justice had shown me the letter and I had replied “It’s OK”. I also said to Sir John Kerr that I would have expressed the advice in slightly different terms but that was not a matter of importance. Sir John said that he had asked the chief justice to speak to me because he (Sir John) felt embarrassed that he had first discussed the question with me and he wanted the chief justice to know what my view was.
On November 11, 1975 Sir John telephoned me to say that the speaker and others wished to see him to present a resolution of the House of Representatives expressing no confidence in the Fraser government. I said that the resolution was irrelevant as he had commissioned Mr Fraser to form a caretaker government for limited purposes to hold a general election.
On November 19 or thereabouts I had dinner at Yarralumla with Sir John and Lady Kerr – I may have stayed there overnight. After dinner Sir John said to me that our discussions should be made public for the sake of history and he reminded me that (in our first conversation on November 9) I had expressed my relief that he had decided to dismiss Mr Whitlam. I replied by saying that if he were to publish our discussions he would need to record that I had said that he should warn the prime minister and give him the option of calling a general election. Sir John made no reply and the conversation turned to other matters. On that occasion Sir John spoke of leaving a letter with his executors giving them instructions as to publication.
Some years later at a function at The Quarterdeck, Sir John and Lady Kerr’s apartment in Kirribilli, I had another conversation with Sir John about publication of our discussions, a conversation initiated by Sir John. It was in terms virtually identical with the discussion in the preceding paragraph, except that there was no reference to instructions to his executors. The conversation terminated after my reference to the need to record my remarks about warning the prime minister.
In his writings since November 9, 1975, Sir John has strongly defended his decision not to warn Mr Whitlam. Although he did not discuss his reasons for that decision with me before or after the dismissal, my impression is that Sir John thought that warning the prime minister might lead to Her Majesty becoming embroiled in the Australian constitutional controversy and that he wanted to avoid such an outcome.
Despite my disagreement with Sir John’s account of events and his decision not to warn the prime minister, I consider that Sir John was subjected to unjustified vilification for making the decision which he made. I consider and have always considered that Sir John acted consistently with his duty except in so far as he had a duty to warn the prime minister of his intended action and he did not do so.
A. F. Mason, August 23, 2012