Legal Advice and Political Bias in the Dismissal

J.B. Paul’s two-part article on “The Downfall of Gough Whitlam” (Quadrant, March and April 2013), in response to Jenny Hocking’s recently published book, Gough Whitlam: His Time, offers yet another discourse on the players and events involved in this tumultuous and intriguing saga in the history of Australian federal politics. It seems that the sport of maintaining the rage and hosing it down, which the late “Diamond Jim” McClelland once crudely likened to trying to maintain an erection, may go on forever.

The problem in constantly mulling over such historical events is that in the repeated interpretation, the plot just thickens to the point where history soon becomes inscrutable legend.

However, what must not be let pass without challenge in John Paul’s article is his reference to the advice which Sir John Kerr, as Governor-General, sought from the Chief Justice of the High Court, Sir Garfield Barwick, and also from another judge of that court, Sir Anthony Mason, in respect of which he contends that, in the circumstances at the time, “there was no impropriety in Sir John’s request for such advice nor was there any impropriety on the part of those eminent jurists who gave it”.

The involvement of Justices Barwick and Mason in this political saga is a serious issue which concerned the legal profession at the time and in its revisiting since—that is, the extent to which the High Court may have been compromised had the matter become an issue for the court and, of equal concern, in its inevitable blurring of the separation of powers on such a critical issue at such a high level of constitutional importance.

The political answer to the situation at the time was indisputable and imperative. Without Supply no government under the Westminster system was able to continue. Whitlam should have resigned and gone to an election. But that was untenable for Whitlam. Knowing that the country was likely to throw him out of office (which it ultimately did, and perhaps more savagely so than had he done the right thing), he looked to devious legislative and unconstitutional ways to obtain Supply in the hope of surviving.

This posed not just a political issue for Sir John but also a legal and constitutional dilemma which, on the way it has been understood and reported, he sought to have clarified by involving Barwick and Mason for their written legal opinions. That was always wrong on Kerr’s part, improper on Barwick’s part and, in the case of Justice Mason, unfair of Kerr in taking advantage of his long association and friendship with him.

Sir John Kerr was only ever an ordinary lawyer and, at an earlier stage, an even less significant judge. His forte was his impressive persona and his enormous ego which he deployed to considerable political advantage. But he could not have been unmindful that, by involving any High Court judge, or any other judicial officer at the time, he was likely to compromise their positions and the integrity of the judicial system generally, as well as to put in jeopardy the role of governor-general.

Indeed, if he had not appreciated this situation at the time then it was made entirely clear to him when he telephoned Whitlam on October 19, 1975, to ask if he could consult Barwick about the legal advice that had been issued a few days earlier by Bob Ellicott, a member of the Coalition and a former Solicitor-General, to the effect that the Governor-General was compelled to dismiss the government if it could not obtain Supply.

Why Kerr felt that he needed to ask Whitlam’s permission to do anything relating to his powers as Governor-General can only be guessed at in the light of his close association with Labor Party politics. Whitlam strongly advised Kerr against any such contact with Barwick, and rightly so. It seems also that he referred Kerr to a number of legal authorities on the subject to support the rejection of his request.

It was then that Kerr asked Whitlam to obtain a legal opinion from the Attorney-General, Kep Enderby, about the matter. In so doing he must have surely known that Enderby had a conflict of interest in his own political survival and that any advice from him would not have been reliable, or seen to have been so.

It followed that Enderby duly passed the matter on to the Solicitor-General, (later Sir) Maurice Byers, who put together an extraordinary 6000 words advising on the subject. But, in case that advice might go against the government’s interests (which it did in part), Enderby devised it to be a “joint opinion” with himself. In the end, with Enderby altering it and Byers then disowning it, the document was flawed and worthless, if not altogether legally diffusive in the first place.

It is understandable that with time running out, public pressure mounting, the media in a frenzy, some Coalition senators wavering, and with the Senate blocking Supply for the third time, this high-stakes political “poker game” was causing Sir John some sleepless nights.

Yet this situation was (and is) the very reason why our constitutional system is so important, and so right. It is essential to have an independent and impartial circuit-breaker, with reserve powers to resolve such crises and avoid a state of anarchy occurring; even though, hopefully, such situations may rarely if ever arise.

The problem was that Kerr was not an impartial circuit-breaker. Even as an ordinary lawyer he needed no independent advice or support to do what was needed to be done. But he had political baggage; political patronage. If he needed to ask Whitlam for permission to consult Barwick then he needed to ask Whitlam for permission to sack the government. That was his real dilemma. That was Whitlam’s fatal mistake.

Sir John had known Whitlam from the 1950s when they were in chambers together, and he owed the Labor Party too many favours. How could he justify sacking them? Yet, how could he not, as a lawyer and as Governor-General, be true to the law and the purpose of his dedicated role? Whilst this was not a Thomas More situation, Kerr could not continue to sit on his hands. To his credit, in the end, he did his duty.

But, by covertly involving Barwick, contrary to Whitlam’s express disapproval, he capitulated to the Opposition; for Barwick had earlier been an Attorney-General in the Menzies government and had a long allegiance to the Liberal Party. Kerr thereby lost credibility to both sides. He also lost any admiration he may have earned within the legal profession as a champion of constitutional law and convention.

Kerr didn’t need Barwick’s legal advice. As he asserted in his autobiography, Matters for Judgment, and as he told Mason, he already knew what he could do and should do. So why did he seek their written opinions? What he was really looking for were some heavyweights to share the blame should things go wrong.

No doubt Barwick relished the opportunity to “steer” Kerr in the right direction. He provided him with written advice confirming the advice issued earlier by Bob Ellicott. (Kerr had also sought written advice from Mason, although Mason had properly and astutely refused the request.)

Although Kerr did not use Barwick’s confidential written advice in his dismissal of the government (probably not wanting Whitlam to know he had defied his “instructions”), he was ready to disclose it when the flawed “joint opinion” of Byers and Enderby was leaked to the Australian Financial Review shortly after the government was dismissed. In hindsight, Barwick endeavoured to justify his readiness to advise Kerr, notwithstanding his undoubted awareness at the time that he too could not have been seen as unbiased and that he was also dangerously leaping over the fence back into the political arena.

In his 1995 autobiography, A Radical Tory, Barwick unconvincingly distinguishes the advice he gave to Kerr as being related to a legal matter not likely to come before a court rather than an opinion on a judicial question being an opinion he would never give. He also asserted therein that he had carefully considered this distinction in giving the advice to Kerr. He further endeavoured to allay the issue by mentioning (without disclosing any names or instances) that this was not the first occasion he and other judges of the High Court had been asked by “public identities”, including former governors-general, to advise on matters involving legal issues.

Of course, as every judge or magistrate knows and must contend with, the seeking of advice on legal matters from family, friends, neighbours and even “public identities” is unavoidable. It happens all the time. But there is one thing in advising about the law in general and another in advising about particular issues relating to matters that are either before a court or likely to be so destined.

There is also the very real issue that, whilst it is absurd to contend or suppose that all judicial officers are bereft of personal bias in matters relating to political issues and in matters of public interest, in circumstances where a judicial officer is perceived to hold an existing bias then justice will not be served by that judge’s involvement.

The issue of what Barwick’s position might have been and whether he would have disqualified himself from hearing the matter had it become a question for the High Court, is not dealt with in his book. Presumably, from the distinction he has drawn, he would have been ready to hear and decide the matter as a judicial question rather than as just a legal issue that he had already advised upon.

In Mason’s response to the recent minor eruption of this still smouldering issue (which was no new revelation, as his involvement was referred to in Matters for Judgment), Mason has indicated that Kerr had asked him “whether, in the event that 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” and that he (Mason) had told him, “I did not know the answer to that question.”

Clearly, the likelihood of a challenge being made to the High Court was contemplated by Kerr and not dispelled by Mason who, it seems, was not asked about his own situation; nor did he indicate what his own position might have been should such a challenge have eventuated.

As to his own much wider involvement in the matter, including the drafting of the dismissal letter, Mason says it was consistent with Kerr’s account, as set out in Matters for Judgment:

The conversations [with Mason] 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.

As indicated, unlike Barwick’s response, Mason had at least declined Kerr’s request to provide him with a written opinion.

Leaving aside the drama of it all, the moral of the story must surely be that it is altogether unwise, and has proved to be unwise, to appoint to judicial positions, and particularly to high office entrusted with the exercise of impartial power and authority, persons who bring with them political baggage, even though much of their work may have little or no connection with political matters.

Having political leanings and social preference is one thing. Having political allegiances and commitment is another. Discrimination and bias are necessary elements of intellectual discernment. To be able to choose is the essence of intellectual freedom. But when that choice is bound to duty and principle, personal prejudice should not influence or prevail.

Whether the rule of law can survive judicial politics is a live issue among scholars and commentators in the law, especially in the USA since the Supreme Court, in deciding the voting discrepancies issue in the 2000 presidential election crisis, split five-to-four according to their known Republican and Democratic party allegiances to favour Bush.

Judicial integrity is now so maligned in the USA that many scholars are questioning whether to now demystify the time-honoured 1879 credo of Monterey County Court Superior Judge, John K. Alexander (ironically elected as a Democratic Party candidate to that position), who is remembered and revered for his quote: “To assume the judicial ermine and wear it worthily requires the abandonment of all party bias and personal prejudice, a possession of educational qualifications, clean hands, and a pure heart.”

Certainly, a career in the law can be an asset for political life. But a career in politics is a poor qualification for judicial office. It is a lesson frequently ignored in judicial appointments—from the elevation to the High Court of our first prime minister, Edmund Barton, who proved to be both a weak jurist and a lazy judge, to Lionel Murphy, whose time on the High Court was disastrous. (Other federal politicians who made it to the High Court were O’Connor, Isaacs, Higgins, McTiernan, Evatt, Latham and Barwick. Many similar former politicians have been appointed to judicial office or tribunals by federal and state governments, including Enderby and McClelland in New South Wales following their dismissal as members of the Whitlam government.)

There are surely enough overseas postings where these recipients of political rewards can be put out to grass without foisting them on the courts. They not only carry with them the stamp of party politics no matter how they may try to rid themselves of it, but are also seen to have gained office from patronage rather than professional merit, even though, in some cases, the stigma may prove to be undeserved. Either way, the perception in all such appointments does nothing to secure the public’s faith in the integrity and impartiality of our judicial system.