The Reserve Powers and the Judiciary

John de Meyrick in his article “Legal Advice and Political Bias in the Dismissal” (Quadrant, May 2013), has placed me under an obligation to him in giving me the opportunity to elaborate on a specific topic which the dictates of word length compelled me to deal with perfunctorily in my article (Quadrant, April 2013) on the downfall of Gough Whitlam. Sir David Smith has also placed me under a similar obligation with his article, “Labor’s Selective Constitutional Conventions”, which immediately followed de Meyrick’s in the May issue. Sir David quoted Gough Whitlam and Senator Lionel Murphy at greater length than I felt able to do on the implications for ministries of the exercise of the Senate’s power to deny Supply.

The principal point de Meyrick disputes is my assertion concerning the role of Sir Garfield Barwick as Chief Justice and of Sir Anthony Mason as a puisne justice of the High Court in advising the Governor-General, Sir John Kerr, as to his constitutional role in the Senate’s denial of Supply to the Whitlam government. As I put it, “there was no impropriety in Sir John’s request for such advice nor was there any impropriety on the part of those eminent jurists in giving it”. As I shall make clear in what follows, I stand by that statement.

Before dealing with that specific matter, I should acknowledge that de Meyrick and I agree on the following: that Whitlam should have either resigned or advised a dissolution when denied Supply, and that in his failure to do either, Sir John Kerr in dismissing him “[to] his credit … did his duty”; that Lionel Murphy’s appointment to the High Court was deplorable; and that the opinion prepared by the Solicitor-General, M.H. (later Sir Maurice) Byers QC, in the form in which it was presented to the Governor-General, was “flawed and worthless”.

In addressing himself to Sir John Kerr’s role, de Meyrick makes these questionable observations: he “was only ever an ordinary lawyer and, at an earlier stage, an even less significant judge”. At Sir Garfield Barwick’s swearing-in as Chief Justice, the Commonwealth and New South Wales Attorneys-General formally welcomed him and were followed as the last speaker by J.R. Kerr QC, as he still was, representing the Law Council of Australia and the recently formed Australian Bar Association. He had been elected to the New South Wales Bar Council in 1960 as one of five Queen’s Counsel—in his words “elected by the Bar as a whole”. In 1964 he became its president. Could “an ordinary lawyer” have attained the high offices on those three bodies? Appointed to the Commonwealth Industrial Court in 1966, his appointment as Chief Justice of New South Wales in 1972 was widely applauded. Even if de Meyrick’s dismissal of Sir John is at all persuasive, it must represent a significant disappointment of his earlier promise. J.G. Starke QC, in reviewing Sir John’s autobiography in the Australian Law Journal (Vol. 53 pp. 105-6) which he edited at the time, remarked: 

his modest description of his outstanding performances in the Law School may be contrasted with what is said in The Jubilee Book of the Law School of the University of Sydney 1890–1940 (1940) at p. 96: “In 1936, John R. Kerr won outright or shared every prize or scholarship to be won in the Faculty.”

The account de Meyrick gave of Sir John Kerr’s request to the law officers for advice seems flawed. He claimed that the Attorney-General alone was asked for a legal opinion and that he then took it upon himself to delegate that assignment to the Solicitor-General. In fact on October 21 the Governor-General through the Prime Minister sought a joint opinion signed by both law officers.

I should make the following point in further disputing de Meyrick’s critique. He seems to labour in ignorance of sources other than the ones he has quoted, and this has adversely affected his case. Almost ten years after the dismissal of the Whitlam government, seven years after Sir John Kerr published his autobiography Matters for Judgment, and a couple of years after Sir Garfield Barwick published his Sir John Did His Duty, Professor Don Markwell published a definitive article in Quadrant (July 1985, pp. 38–42), which was fully endnoted, entitled “On Advice from the Chief Justice”. Markwell claimed that at least three Chief Justices and six Governors-General have considered that it is proper for a representative of the Queen, in seeking the best legal advice in a crisis, to consult the Chief Justice of Australia. Markwell gave the following examples:

The three Chief Justices were: Sir Samuel Griffith (1903–1919), Sir Owen Dixon (puisne judge, 1929–1952, Chief Justice 1952–1964) and Sir Garfield Barwick (1964–1981). The six Governors-General were: Lord Northcote (1904–1908), Lord Dudley (1908–1911), Lord Denman (1911–1914), Sir Ronald Munro Ferguson (1914–1920), Sir Paul Hasluck (1969–1974) and Sir John Kerr (1974–1977). Sir Edmund Barton (puisne judge 1903–1920) and Sir Keith Aickin (1976–1982) also agreed with this proposition, and probably so did Richard O’Connor (1903–1912), Dr H.V. Evatt (1930–1940) and Sir John Latham (Chief Justice, 1935–1952).

Markwell also observed:

In October 1975, Keith Aickin QC—long the leader of the Melbourne Bar and later a High Court judge—prepared an opinion with Murray Gleeson QC, and Professor P.H. Lane arguing that, on denial of supply, the Governor-General could dismiss the incumbent ministers and appoint ministers who would advise an election.

The opinion included this passage which Markwell also quoted:

The Governor-General is entitled to seek advice on his powers from sources outside the Ministry. There is, for example, precedent for the seeking of advice from the Chief Justice of Australia.

Murray Gleeson was himself subsequently appointed Chief Justice of Australia on being promoted to that position from being one of Sir John Kerr’s successors as Chief Justice of New South Wales. While I cannot quote Markwell’s article further at great length, I am not aware that the scholarship he displayed therein has ever been challenged. Towards the end of his article Markwell observed:

Apart from such authoritative opinions, the history set out here provides far more than ample precedent for the 1975 consultation of the Chief Justice by the Governor-General … Indeed, a Chief Justice—State or Commonwealth—has given advice on almost every major exercise of the reserve powers in Australia this century. Those … who seek to establish precedent (or … lack thereof) as a primary consideration must acknowledge that the precedents in overwhelming weight favour the view adopted by Sir John Kerr and Sir Garfield Barwick. Is it too much to expect that before attacking the Governor-General and the Chief Justice of Australia such critics will check their facts? If, as some say, those high offices were diminished by 1975, it was not the occupants of those offices, both distinguished Australians, who diminished them but those who slandered them with false “facts”, faulty “logic” and, all too often, personal abuse—often in language of rage, not reason.

Markwell completed his article with a reasoned argument against the proposition that the dismissal of Gough Whitlam was justiciable.

Professor Anne Twomey of the University of Sydney Law School weighed into this controversy with an article dated August 30, 2012, entitled “The Judiciousness of Advising the Governor-General” which can be found on her blog. She began her article as follows:

“An unprecedented, extensive and unconventional relationship between a High Court judge and a governor-general during a constitutional crisis”? Really? Such was the claim made in The Australian on 28 August. Much hyperbole has been generated by the recent revelations concerning Sir Anthony Mason’s involvement in the 1975 dismissal, but for the most part it shows ignorance of the past. Not only was it not “unprecedented” or “unconventional” for a High Court judge to have advised a vice-regal representative on the extent of his or her powers back in 1975, but it is actually quite hard to find an occasion when judges have not been involved in advising upon the exercise of the reserve powers.

Professor Twomey gave many of the examples outlined by Professor Markwell in 1985 and provided some others. She concluded: 

Looking at Sir Anthony Mason’s informal advice to Sir John Kerr through post-1975 eyes is unfair. In the context of the time, his actions were not inconsistent with those of his predecessors or his colleagues.

Professor Twomey concluded her article by surveying “significant changes” since 1975 which could well bring some comfort to John de Meyrick. She has quoted approvingly the conclusion of an article by the present Chief Justice of the High Court, Ronald French (“The Chief Justice and the Governor-General” (2009) 33 MULR 647, at 656), in which he considered these post-1975 changes:

It is difficult to conceive of circumstances today in which it would be necessary or appropriate for the Chief Justice to provide legal advice to the Governor-General on any course of action being contemplated by the holder of that office, whether such advice were tendered with the prior consent of the government of the day or otherwise. If, in some constitutional crisis requiring consideration of the possible exercise of the reserve powers, the Governor-General felt the need to seek independent legal advice, there are plainly sources other than the Chief Justice to whom he or she could turn.

Again I must stress that this conclusion was made in the light of developments since Gough Whitlam was dismissed in 1975.

I must take issue with de Meyrick’s assessment of Sir Edmund Barton as “both a weak jurist and a lazy judge”. In addressing the High Court on his retirement as Chief Justice, Sir Owen Dixon recorded that a Victorian Supreme Court judge, Sir Leo Cussen—by common consent an outstanding jurist—had told him privately that in his opinion Barton’s judgments “had more philosophy in them, more understanding of what a Constitution was about, more sagacity; that they were extremely well written, and that they were extremely good”.

The question of appointing politicians as judges is a vexed one and there would be a great deal of sympathy for de Meyrick’s view that such appointments are now undesirable. But this is due to a comparatively recent development: that a commitment to a political career is one that current leaders of the Bar of outstanding ability are reluctant to make. In time past this was not the case and appointments to the High Court of Sir Samuel Griffith, Sir Edmund Barton, Richard O’Connor, Sir Isaac Isaacs, H.B. Higgins, Sir John Latham and Sir Garfield Barwick could be justified because of an eminence at the Bar which they had attained independently of any political commitment. Should barristers of comparable eminence choose in future to make a commitment to a parliamentary career this should not disentitle them subsequently to a place on the Bench.