Ninian Stephen implicated in dismissal

THE private papers of former governor-general John Kerr have implicated Ninian Stephen in the dismissal of the Whitlam government.

THE recently released private papers of former governor-general John Kerr have implicated one of his successors, Ninian Stephen, in the 1975 dismissal of the Whitlam government.

Sir John wrote in his papers that it was his belief that Sir Ninian, a High Court judge in November 1975, saw in advance the advice that then chief justice Garfield Barwick had given the governor-general approving the dismissal. Barwick said in a television interview in 1993 that Sir Ninian had told him some days after the dismissal, "That was a very good letter."

Sir John's notes, written in London in 1981, say that he "recently" had lunch with Sir Ninian - on May 15, 1981. Sir Ninian said he had been sitting with Barwick on the bench on November 10, 1975, when he drafted his advice to the governor-general.

Anthony Mason - another High Court judge at the time of the dismissal who would later become chief justice, and Sir John's close friend - had been consulted by the governor-general throughout the crisis and had endorsed the Barwick letter when the chief justice showed it to him.

Sir Ninian, who was appointed governor-general in 1992, has previously denied any prior knowledge of the letter. Sir John's notes are in conflict with his denial.

GALLERY: The Whitlam dismissal

Sir John writes: "Mason had also been sitting - I already knew this - and Barwick made it clear in private conversation with the two of them that morning before lunch that he was very pleased indeed to have been asked for his advice.

"It is clear from my conversation with Stephen that he did not attempt to dissuade Barwick from giving the advice and my understanding of what he said was that he, as well as Mason, saw the draft he prepared that morning."

This is different but not necessarily inconsistent with Barwick's account that has the chief justice showing his letter to an approving Sir Ninian some days later.

"I don't know whether he agreed with it or he didn't," Barwick said of Sir Ninian.

It is known that two High Court judges, Barwick and Sir Anthony, without Whitlam's knowledge, were party to Sir John's dismissal plans and supported the governor-general's intervention at that time. The question is whether a third judge was also implicated. Sir John had an obvious self-interest in widening the net of approval as far as possible.

In September 1995, some 20 years after these events, when Sir Ninian was asked for a considered response, he said: "The whole thing (the dismissal) came as a complete surprise to me. I have no recollection of being consulted. I think I am quite clear in my own mind that I knew nothing until the news broke publicly."

A fourth High Court judge at the time, Harry Gibbs, later chief justice, said that if the dismissal issue had come before the High Court, then Barwick, given his involvement, "would have been disqualified from sitting on the case".

The same argument applied to Sir Anthony. Whether it applied to Sir Ninian remains a contested issue.

Sir Ninian was unavailable for comment yesterday.