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THE AUSTRALIAN

John Kerr's judicial helpline

TROY BRAMSTON AND PAUL KELLY THE AUSTRALIAN APRIL 05, 2013 12:00AM

Gareld Barwick, who was High Court chief justice in 1975; his papers show the extent to which he colluded with John Kerr in the lead-up to the dismissal. Picture: Chris Pavlich Source: The Australian

AT 9.45am on November 11, 1975, chief justice Garfield Barwick put down the phone and dictated a personal note documenting a secret discussion he had just completed with governorgeneral John Kerr, hours before Kerr dismissed the Whitlam government. This conversation, never disclosed by Barwick or Kerr in their extensive accounts of the constitutional crisis, reveals the two men discussing the best tactics to deploy in the governor-general's dismissal of Gough Whitlam and offering reassurance to each other. The conversation reveals Kerr's obsession about the details of the dismissal, his rehearsal with Barwick of all possible contingencies and his determination to ensure the chief justice agreed completely on what would happen in the Yarralumla study when Whitlam was dismissed. Kerr had two fears: that Whitlam already might have approached the Queen to have him removed, and that Whitlam would confront him at their 1pm meeting by demanding to know why he had consulted Barwick the previous day. "The governor-general rang me in my chambers before I arrived this morning and on my arrival my associate made a telephone connection with Yarralumla and the governor-general spoke to me," Barwick begins his note. "He told me that the discussions between the prime minister and Mr (Malcolm) Fraser were proceeding; that he, the governor-general, had to attend the Armistice Day ceremony and that it was likely that the prime minister would see him around 1 o'clock." Kerr confided in Barwick his deepest fear: that his own dismissal was still possible. "He said that he had to consider the possibility," Barwick notes, "that the prime minister might have

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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." Kerr told Barwick that Whitlam could survive as prime minister if he backed down. That meant agreeing to opposition leader Fraser's demand for "a general election in the first half of the new year in return for the passage of the budget". But if Whitlam did not "give in" to Fraser, he would dismiss the government. However, the main subject of the phone conversation was Barwick's written advice to Kerr from the previous day authorising the dismissal. That morning, the vice-regal notice in the daily newspapers read: "His excellency the governor-general received the Rt Hon Sir Garfield Barwick, chief justice of Australia, at Admiralty House, Sydney, yesterday. Later, the governor-general entertained the chief justice at luncheon at Admiralty House." Given this public notification, Kerr expected Whitlam would raise his meetings with Barwick. The prime minister had told Kerr not to confer with Barwick and the meetings the previous day were in defiance of Whitlam's instructions. Kerr and Barwick discussed how to handle this. "He (Kerr) proposed to reply simply that it was a matter for him, the governor-general," Barwick says. Kerr asked Barwick about the letter of advice. If Whitlam requested to see the letter, should he show it to him? "I (Barwick) 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." Kerr would next speak to Fraser on the phone at 9.55am and Whitlam at 10am. Before setting in place meetings with Whitlam, where he would be dismissed, and with Fraser, where he would be commissioned as prime minister, the governor-general had colluded with the chief justice on tactics. The secret Barwick note was found by The Australian in a 338-page file titled "Dismissal of Labour (sic) Government, 1975-1979" that forms part of Barwick's papers held by the National Archives of Australia. There is a second note in the file that reveals further previously unknown contact between Barwick and Kerr. At 2.25pm on November 10, an associate to Barwick made a note of a phone call that Kerr had made to Barwick's chambers after they had lunched together at Admiralty House, the governor-general's Sydney residence. Barwick was refining his letter of advice that afternoon. Kerr "asked that the following message" be given to Barwick, who was not in his chambers at that time. "I don't want to prevent by anything I do the possibility of compromise," Kerr told Barwick's associate, "so therefore if he 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." In short, Kerr was offering drafting instructions to Barwick for the letter he was writing as formal advice from the chief justice to the governor-general. Barwick largely obliged. "In response to Your Excellency's request for my legal advice as to whether a course on which you had determined was consistent with your constitutional authority and duty, I respectfully offer the following." There was no mention of "compromise" in Barwick's letter. The chief justice argued it was Kerr's "constitutional authority and duty" to dismiss the government. Indeed, Barwick wrote in his memoirs that Kerr should have acted to dismiss the government weeks earlier. The phone calls between Kerr and Barwick contradict their accounts of the crisis as recorded in their personal memoirs and in interviews. They also contradict Barwick's November 12 memo to his fellow

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Barwick's account of his part in the dismissal is in his two books: Sir John Did His Duty (1983) and A Radical Tory (1995). Kerr's account was documented in his memoir, Matters for Judgment (1978). On September 20, 1975, Barwick attended a dinner of the Order of St Michael and St George, where he spoke briefly to Kerr. The governor-general asked him about the emerging crisis over supply. Barwick says he "left the door open" for Kerr to approach him to request formal advice on the governorgeneral's role. In the evening of November 9, Kerr phoned Barwick at his home at Avalon, north of Sydney. It was a brief call. Kerr requested that Barwick see him at Admiralty House early the next morning. Barwick agreed. Earlier on November 9, Kerr had informed another High Court judge, Anthony Mason, of his intention to dismiss Whitlam. Mason had encouraged him to speak to Barwick. Just after 9am on November 10, Kerr told Barwick in person of his intention to dismiss the government. Kerr asked Barwick for an opinion. Barwick agreed to consider "the form of advice" and they arranged to meet later for lunch. Barwick began drafting the letter. He attended a sitting of the court in Darlinghurst. As revealed in The Australian last October, a note in Kerr's papers says fellow justice Ninian Stephen had told Kerr in London in 1981 that he "saw the draft" letter and concurred with it. Stephen denies this. At lunch, Barwick indicated he would complete his draft letter by the end of the day. The letter was delivered by car to Admiralty House around 4pm. In A Radical Tory, Barwick says Kerr rang him after his letter was received to see if he would consult Mason. Barwick, however, did not know Kerr had been consulting Mason about the crisis in secret for weeks. At Kerr's request, Barwick visited Mason in his chambers to find that he "quite agreed". Barwick phoned Kerr to convey this. In Sir John Did His Duty, Barwick writes that Kerr phoned him "late" on November 10 to ask if he (Kerr) could reveal that he had consulted Barwick and disclose the advice. Yet Barwick's contemporary note suggests that he got the timing wrong and that this conversation in fact occurred on the morning of November 11. Further omissions can be found in Barwick's "memorandum to all justices", when he explained to the High Court his role in Whitlam's dismissal. This memorandum purports to be a "record of what occurred between the governor-general and me on November 10". No mention is made in the memo of the two phone calls from Kerr to Barwick in the afternoon of November 10, Barwick's consultation with Mason and his subsequent phone call to Kerr. Nor is there any mention in the memo or in Barwick's memoirs of an additional conversation on the morning of November 11. Similarly, in Matters for Judgment, Kerr does not mention this additional contact with Barwick. Carefully, Kerr writes in his memoir: "My only discussion with Sir Garfield Barwick, on the subject of the exercise of the reserve powers, is fully related here." Barwick's memo to the judges elicited a strong rebuke from fellow justice Lionel Murphy, previously Whitlam's attorney-general. "The advice itself was, in my opinion, wrong," Murphy wrote to Barwick on November 13, "and, by its disregard of options open to the governor-general, seriously prejudicial to one side in the political controversy. I dissociate myself completely from your action in advising the governor-general and from the advice you gave." On November 14, Barwick circulated two notes. In a memorandum to the other High Court judges, he dismissed Murphy with contempt, saying: "I regret that my courtesy has seemed capable of misunderstanding." In a direct response to Murphy, Barwick was even more scathing: "I note your remarks. I fundamentally disagree with them, both as to any legal opinion they involve and as to any

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matter of the propriety of my conduct. I see no need to discuss with you either question." Having no confidence in Whitlam or the nation's chief law officers - solicitor-general Maurice Byers and attorney-general Kep Enderby - Kerr looked to old friends in the legal fraternity for emotional and intellectual support and reassurance during the constitutional crisis. And after the dismissal, Barwick lavished Kerr with the respect and admiration that he craved from such an eminent conservative legal and political figure. While four pages from Barwick's secret file on the dismissal have not been released by the archives, in addition to newspaper clippings, journal articles, Hansard extracts and notes, there are several letters between Barwick and Kerr after 1975. "I do not need to say again how much I appreciate what you did in my own time of crisis," Kerr wrote to Barwick from England in 1980. "You would not have had to suffer the harassment that has fallen upon you had you not been courageous enough to enter into constitutional discussion and to give your advice as you did five years ago. I hope you do not regret it despite everything that has happened. Certainly I have no regrets at all myself, as I have doubtless said to you on several occasions in the past."

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