Kerr unmasks Mason from the grave

Eric Lobbecke

REVELATIONS in the new biography of Gough Whitlam, along with Sir Anthony Mason's breaking of his 37-year silence, offer new insights into Whitlam's 1975 dismissal and provide further evidence of the abuse of power and process in the nation's most revered institutions.

The disclosures in Jenny Hocking's biography based on Sir John Kerr's archival notes, and Sir Anthony's clarifying article in the Fairfax papers on Monday, reveal the subversion of the office of governor-general and the extent to which the High Court was compromised. This week's disclosures are remarkable. Many will find them "shocking", to quote Hocking from yesterday's launch.

She uncovered Kerr's archival record of his talks and meetings with Mason during the 1975 crisis and, while there are substantial differences between Kerr's record and Mason's version, there is much common ground.

It is now apparent that Kerr's secret meetings and private discussions during the crisis as he planned Whitlam's dismissal were more extensive than previously known. His quest to enlist the High Court had become a fixation that led him into a deeper dialogue with Mason than with Sir Garfield Barwick. While Barwick's role as chief justice and his advice to Kerr have long been known to the public, Mason has refused many approaches over the years to reveal his own role. Hocking's book says when she approached Mason he answered: "I owe history nothing."

It is an unfortunate quote with its implication that neither Australian governments nor the people had any right to know what Mason did. In truth, Mason's silence worked to his benefit. It is inconceivable that, had the Hawke cabinet known the full story of Mason's involvement, it would have appointed him chief justice in 1987.

On the version by Mason himself, the only tenable conclusion is that he was implicated in Kerr's dismissal of Whitlam.

At the least, Mason fortified Kerr's thinking on the dismissal; he spoke to Kerr on a number of occasions; he discussed with Kerr the implications of getting an opinion from Barwick; yet he was aware, because Kerr had told him, of Whitlam's instruction that the governor-general was not to consult the High Court in the form of its chief justice.

On Sunday, November 9, Kerr saw Mason twice, the first time at a North Sydney location to ensure Whitlam, then at Kirribilli House, was unaware of their meeting. On this occasion Kerr told Mason he had decided to dismiss Whitlam and commission Malcolm Fraser as caretaker PM to get an election. So Mason became privy to the event. He expressed his relief at Kerr's decision.

Kerr gave Mason the draft advice from the law officers designed to buttress Whitlam's position and Mason said he disagreed with it. According to Mason, Kerr asked him to provide a written opinion and when he said any such task had to reside with the chief justice, Kerr indicated he would ask Barwick. Kerr rang Barwick that evening, said he had reached certain conclusions and wanted to know if Barwick would advise him. It would have been obvious to Barwick that dismissal was coming. That Sunday evening the Kerrs and Masons dined at Admiralty House. Nobody else was present.

At the end of dinner, when Kerr told Mason of the way he planned to dismiss the prime minister, Mason said he should give Whitlam the option of advising a general election. Kerr asked if Mason would draft a dismissal letter and he agreed. It was delivered the next morning but Kerr, in the end, used a different letter. The point is that Mason had an input into the dismissal documentation.

The written advice from Barwick on November 10 was that the governor-general had the "authority" to act. It seems, however, that Kerr played a game with Barwick. After getting the advice, he rang Barwick and asked him to find out what Mason, as a former solicitor-general, thought. Would Barwick mind asking Mason?

Kerr, of course, had an excellent idea of what Mason was going to say. But he was closing the circle. Barwick checked with Mason, who told him the advice was "OK" and Barwick reported back to Kerr. So Kerr knew both judges were with him. Barwick, unsurprisingly, felt that Kerr's desire to supplement his own advice as chief justice with Mason's advice was a sign of Kerr's weakness: "He wanted to be reassured by someone who was friendly with him." But Barwick was ignorant of the full scope of Kerr's secret talks.

Mason's final role came on that anxiety-driven afternoon of November 11 when a deposed Whitlam, enjoying the confidence of the House of Representatives, had secured a no-confidence motion against Fraser. With the Speaker asking to see him to get Whitlam recalled, Kerr rang Mason, who told him to ignore the parliament's resolution since he had commissioned Fraser with the specific purpose of procuring an election. In this week's article, Mason highlighted his consistent view to Kerr that Whitlam should have the first option of holding a general election. This is undoubtedly correct. The revelation has won Mason praise from some quarters this week. Yet it overlooks the far more substantial point - he was able to advise this only because Mason had got involved in a sustained dialogue with Kerr over the crisis and its resolution, a dialogue unknown to Whitlam that, at face value, may be viewed as improper and unacceptable for a High Court judge. Is there any judge on the current High Court who, in comparable circumstances, would do what Mason did?

Kerr's records, revealed for the first time in Hocking's book, attribute an even greater influence to Mason, leading into the disputed territory between them. They have Kerr saying that Mason "played a most significant part in my thinking at that critical time" and the reason Kerr set down his account was to ensure that Mason's role "be known". Mason insists he did not encourage Kerr to dismiss Whitlam. Yet the account Mason has now provided would lead many observers to the opposite conclusion. Hocking argues Mason was not just the third man but the man. It may be that as time advanced, Kerr's views about Mason's influence became somewhat exaggerated.

Post-dismissal, Kerr and Mason had diverging interests. Kerr wanted to reveal Mason's role but Mason told him any such revelation must include the Mason advice that Kerr ignored: that he should warn Whitlam. So nothing was disclosed. Now Kerr, reaching out from the grave, has forced Mason's hand. The ultimate point is that in 1975 our institutions were undermined in a joint Fraser-Kerr project that deposed the Whitlam government via secret discussions and misuse of the Reserve Powers.