The third man

Hidden agenda … Whitlam looks on as David Smith reads the proclamation dissolving parliament. Sir Anthony Mason.
Nanjing Night Net

As he will be in the shades of history when this is read, his role should be known.

-John Kerr

Sir John Kerr had been governor-general for just eight months when, in March 1975, he approached the vice-chancellor of the Australian National University with a confidential request.

Kerr put forward an unusual proposition – the formation of a group within the university to meet with him, in confidence and without the knowledge of the prime minister, and to advise him on the nature and extent of his powers as governor-general.

Kerr did not inform Prime Minister Gough Whitlam that he had sought advice from this hand-picked advisory group and Kerr never revealed the role played in the formation of this group by its most senior judicial figure, Sir Anthony Mason.

Mason was a sitting justice of the High Court, and a pro-chancellor of the ANU. He and Kerr had been ”close personal friends” since Mason first appeared as a junior counsel to Kerr in the 1950s, and it was Mason who drove the discussions with Kerr on the establishment of this advisory group, conferring directly and confidentially with the Governor-General about ”constitutional problems”.

Kerr’s request for confidential advice posed ”some difficulty” for Justice Anthony Mason, since the matters this group was likely to consider were those same controversial political and legal points currently the subject of intense political debate and that were also likely to come before the High Court.

Mason acknowledged his dilemma to Kerr:

“I have felt some difficulty as to my own participation in the discussions, for it may appear to some that we are engaged in the consideration of important questions which may sooner or later come before the High Court for decision,” he wrote.

“No doubt the questions which you have in mind are presently hypothetical. Unfortunately the hypothetical questions of today have a distressing habit of becoming the actual questions of tomorrow. I therefore doubt whether it would be proper for me to become a member of the group on a continuing basis.”

While expressing some doubt over his own involvement, Mason told Kerr that he would attend the initial meeting and ”refrain from expressing my opinion on questions which might become controversial”.

The group, variously described as a ”seminar” or a ”tutorial” for the Governor-General, met twice at the ANU during September 1975; Sir John Kerr attended with his official secretary, David Smith.

By October, with the opposition senators refusing to vote on the government’s Appropriation Bills in a bid to force a general election, it was clear the ANU was involving itself in matters of partisan political controversy with the Governor-General. Kerr was told their ”tutorials” would have to cease.

The end of his private tutorials did not signal the end of Sir John Kerr’s solicitations to Justice Mason. Before the opposition had taken action in the Senate against the government’s budget, Kerr had initiated, according to his records, a ”running conversation” with Mason to discuss ”probable future events and discretionary alternatives open to me”.

These records describe a series of strategic and undisclosed exchanges that continued through the mounting political crisis, marked by the extraordinarily close involvement of both Justice Mason and the Chief Justice, Sir Garfield Barwick, in Kerr’s final actions, and which ended only with the end of the Whitlam government itself.

Kerr later set out a detailed archival record of what had transpired between himself and Justice Mason and without which ”his part in my thinking in October-November 1975 will not … be known to history”:

“In the light of the enormous and vicious criticism of myself, I should have dearly liked to have had the public evidence during my lifetime of what Mason had said and done during October-November 1975 … [but] he would be happier … if history never came to know of his role,” he wrote.

“I shall keep the whole matter alive in my mind till the end, and if this document is found among my archives, it will mean that my final decision is that truth must prevail, and, 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.”

The scenario depicted in Kerr’s record dramatically recasts our understanding of these events and of the role of key individuals within them. This remarkable document presents a hidden history, now left for archival posterity as much for personal vindication as public illumination.

Kerr records that, at every stage in the fraught and apparently confidential discussions between the Governor-General and the Prime Minister during the month from October 12 to November 11, 1975, he was confiding every meeting and recounting every detail to Justice Mason, ”to fortify myself for the action I was to take”.

Sir Anthony Mason has refused to speak on these matters, despite repeated requests to do so. Whitlam was oblivious to it all.

The precise nature of Mason’s role in Kerr’s deliberations has never been revealed, either by Kerr or by Mason himself. In his memoirs Kerr referred cryptically to ”conversation with one person only other than the Chief Justice”.

Although speculation soon emerged that Mason was this unidentified ”third man” in conversation with Kerr, it would be another 20 years before he was identified as the ”third man” and as having spoken to Kerr during that time.

But Kerr’s records suggest that Mason was not merely the third man: he was, in many ways, the man. From their earliest discussions, months before there was even any Supply crisis in the Senate, Kerr records that it was Mason who met, talked with, planned for and counselled him, guiding him through his deliberations and advising him on the action he should take.

Of equal significance from Kerr’s detailed record is his depiction of Mason as providing a necessary bridge between Kerr and the Chief Justice, Sir Garfield Barwick.

In the years to follow, the more his own actions were questioned, the more eager Kerr became that Mason’s opinions and advice to him should be revealed: ”From my point of view it is unfortunate that they are unknown,” Kerr wrote.

Five years after these events, Kerr noted in his journal that he had renewed his plea to Mason to make his involvement public, and that Mason had again refused. Mason’s view, as he still maintained when pressed nearly 40 years later was, ”I owe history nothing”.

What is clear from Kerr’s detailed archival record of these discussions is that, even before Supply had been blocked, he had reached a decision on the critical element fundamental to the resolution of the political crisis that would engulf the Parliament and occupy much of his negotiations with both the Leader of the Opposition and the Prime Minister in the coming weeks.

Kerr accepted without question the existence of ”the reserve powers” – powers that would, if presumed to exist, enable the Governor-General to act independently, even against the advice of his elected ministers.

But the question of the existence of the reserve powers was not only the subject of intense legal debate, it lay at the heart of the political differences over the role of the governor-general. The advice proffered by the shadow attorney-general, Robert Ellicott, was that the reserve powers not only existed but that Kerr should act on them immediately and remove Whitlam from office from the moment Supply was blocked.

The government’s chief law officers and formal legal advisers to the Governor-General – the solicitor general, Maurice Byers, and the Attorney-General, Kep Enderby – firmly rejected Ellicott’s approach.

But from his own record of their conversations over this time, Kerr had not even received the advice of his legal advisers when he declared to Mason he would ignore it anyway, in favour of the advice of the shadow attorney-general.

Kerr had already decided he could act against Whitlam and his government as early as October 12, 1975, at the time of the first of his discussions with Mason when, Kerr’s archival record states, they considered ”probabilities, options and timing”.

On that day, when there was no crisis, no block in the Senate and, as Kerr himself noted, ”no conceivable ground for action on my part, supply not having been blocked”, Kerr resolved that he should not act yet, but that he should ”await further developments”.

By October 17, with Supply blocked for barely two days, Kerr was even more certain in his decision to act against the government. It was just a question of when: ”the real question at this time is whether I should act before the money runs out and whilst the Senate is still only deferring”, he noted.

The next week, as Kerr’s archival record presents it, he again met with Mason and on October 20 resolved to ”still follow the same line” and do nothing for the moment. According to Kerr’s records, it was at this meeting and again by phone the following day that he and Mason discussed for the first time ”the desirability … of seeking Barwick’s formal advice”.

The notion of the Governor-General seeking ”formal advice” from the chief justice, against the advice of the Prime Minister, was an exercise of unilateral vice-regal power, since the Governor-General’s formal adviser is the Prime Minister and his formal legal advisers are the solicitor-general and the Attorney-General.

At this point, as Kerr recorded it, Mason advised he should only approach Barwick once he knew ”what he would be likely to advise”. Barwick believed, as Ellicott did also, that Kerr should move immediately against Whitlam; ”Barwick … would advise immediate radical action – dismissal,” Kerr noted. Barwick therefore should be approached only once Kerr was ready to act.

The timing of this exercise was crucial and, according to Kerr’s record of their conversation, Mason cautioned that ”such advice [immediate dismissal] would be disastrous at this time”.

The next day Whitlam reminded Kerr that he was not entitled to seek outside advice, that ”I could get advice only through him”. Kerr ignored this directive and, according to his records, told Mason of it and continued to seek outside guidance.

Kerr’s actions represented a dramatic subversion of the role of the Governor-General in a parliamentary democracy as an appointed official who acted on the advice of his ministers.

Through this circular, self-referential process, Kerr was constructing an entirely new notion of an independent, unelected governor-general with literal and extensive powers, a view that was at odds with the democratic understanding of the role and certainly at odds with Whitlam’s unstinting trust and belief in him – personally and as Governor-General.

The interaction between Kerr and Barwick on this political struggle stretched back several weeks, to September 20 when Kerr was guest of honour at the annual dinner of the Order of St Michael and St George (a British order conferred for distinguished service overseas or in foreign affairs) in Sydney.

Kerr was seated next to Barwick and the two discussed the possible role of the Governor-General should the opposition senators refuse to vote on the government’s Appropriation Bills. Kerr asked Barwick whether he would be prepared to advise him on his own position and actions. The chief justice agreed.

Kerr’s consistent and repeated concern was for his own security, that the Prime Minister might advise the Queen to dismiss him as Governor-General if he knew that his own dismissal was being contemplated.

Kerr was presented with an unexpected opportunity to canvass his concerns directly with ”the Palace” in the unlikely setting of Port Moresby in September.

During Prince Charles’s 1974 visit to Australia, Kerr had discussed with him the possibility of Charles’s own future appointment as Governor-General, a proposal seriously considered in light of the lengthy time the prince was likely to wait before becoming king.

Kerr took this previous interaction to suggest a personal connection to the Prince of Wales and now, as the two met again in Port Moresby, the Governor-General took the extreme step of raising with the prince the possible dismissal of the Whitlam government and his grave fears that he would himself be dismissed by Whitlam should he do so.

Apparently oblivious to constitutional expectations, Charles replied, according to Kerr’s notes of their exchange, ”But surely Sir John, the Queen should not have to accept advice that you should be recalled at the very time, should this happen when you were considering having to dismiss the government”.

On his return to England, Charles took up Kerr’s concern with the Queen’s private secretary, Sir Martin Charteris. Unknown to Whitlam, who considered Charteris a friend, Charteris then wrote to the Governor-General just one week before the Supply crisis began, with equally remarkable advice.

Charteris told Kerr that, should what he euphemistically termed ”the contingency to which you refer” arise, the Queen would ”try to delay things” although, Charteris acknowledged, in the end the Queen would have to take the advice of the Prime Minister.

Neither Kerr nor the Palace ever revealed that, weeks before any action in the Senate had been taken, the Governor-General had already conferred with the Palace on the possibility of the future dismissal of the Prime Minister, securing in advance the response of the Palace to it.

Kerr’s letter dismissing Whitlam would be accompanied by a statement ostensibly from the Governor-General, setting out the reasons for his decision. According to Kerr’s archival record, Justice Anthony Mason’s role in the dismissal of the Whitlam government was complete with his authorship of this statement.

Kerr states that at their final meeting in Sydney on 10 November, Mason gave him ”a document … in his own handwriting”, to which Kerr added some material but otherwise used as his own words: ”that sheet as added to by me became incorporated in my final public statement”.

Thirty-five years later, when asked specifically about his authorship of one of these key dismissal documents, Mason refused to comment.

Kerr’s archival notes record that after forewarning his wife, Anne, of his intentions on November 9, he then called Anthony Mason and arranged to have another ”private talk” with him later that day.

“I began the conversation by saying that I had decided to dismiss the government, commission Fraser as a caretaker prime minister and get Parliament dissolved on Tuesday the 11th if the crisis was not resolved by then,” Kerr wrote.

Kerr says Mason replied spontaneously and with genuine relief, saying: “I am glad of that. I thought that I might this afternoon have to urge that course upon you.”

This story Administrator ready to work first appeared on Nanjing Night Net.