A-G chief disapproved of 'unjustified' act

JOHN Kerr's papers reveal that a week after the 1975 dismissal the head of the A-G's Department told Kerr it was unjustified.

THE papers of John Kerr reveal that a week after the 1975 dismissal of the Whitlam government the head of the Attorney-General's Department, Clarence Harders, told the governor-general to his face it was unjustified.

"His own view was that things were not serious enough on 11 November for the exercise of the reserve power," Kerr says in a four-page memo he wrote on November 23, 1975.

According to the memo, the Harders dissent provoked an immediate reply from Kerr and caretaker attorney-general Ivor Greenwood.

Kerr, extremely sensitive to criticism of his actions by the law officers, challenged the views of Harders and solicitor-general Maurice Byers at the meeting on November 17.

Kerr said that if Harders and Byers felt "I had no power to do what I had done" then it was "their duty" to have given him such advice on November 11 before the parliament was dissolved.

He told them "if either had been of the view that the power had been wrongly used" their duty was to say this at Yarralumla the day before the process was finished and the election called.

Kerr's note reveals the huge tensions unleashed at the highest levels of government, where the legal advisers were shocked by the governor-general's dismissal of Gough Whitlam and believed it to be unjustified.

A confidential note by Harders from his files makes clear that Kerr was worried about the no-confidence motion the House of Representatives had passed in Malcolm Fraser as caretaker prime minister. Kerr wanted more legal advice before dissolving the parliament.

Kerr's note shows his determination on the afternoon of the dismissal to protect himself. His concern was manifest.

He rang his friend and High Court judge Anthony Mason to get reassurance he could proceed.

He was determined to lock in the advice of Harders and Byers, since he was defying the House of Representatives in keeping Mr Fraser as prime minister.

Kerr's notes say the Harders-Byers position that afternoon was that "as I had exercised the reserve power in the morning I could continue to exercise it".

But Kerr made the mistake of thinking such advice meant Harders backed the dismissal. The truth was the opposite.

At the November 17 meeting, Harders said his November 11 advice "had not meant to be expressing approval of what I had done" .