Decades on, debate over the dismissal will not die

THE claim that High Court judge Anthony Mason conversed extensively in secret with governor-general John Kerr, advised him on his "discretionary" powers, supported his decision to sack the Whitlam government and drafted Kerr's statement defending his actions, if true, supports what Gough Whitlam always suspected: his dismissal was a coup "conceived in secrecy and deceit".

The second volume of Jenny Hocking's biography of Whitlam, Gough Whitlam: His Time (MUP), suggests Mason's involvement in the dismissal to be more significant than previously thought.

Hocking claims Mason was also "a necessary bridge between Kerr and Chief Justice Garfield Barwick," whose formal advice was used to support the dismissal on November 11, 1975. Hocking also reveals Kerr raised the idea of dismissing the government with Prince Charles in September 1975. Kerr, who feared Whitlam would seek to sack him as governor-general if he got wind of his duplicity, secured a letter from the Queen's secretary assuring him any attempt to remove him would be "delay(ed)" if his "contingency" planning took effect.

If true, these discoveries, in addition to the release of cabinet papers and recent testimony from key participants, show how fragile our parliamentary democracy is and how easily the various arms of government can undermine it.

Whitlam did not agree to Kerr's request to consult Barwick, as the governor-general's proper legal advisers were solicitor-general Maurice Byers and attorney-general Kep Enderby QC.

Yesterday, I spoke to Enderby for this column. "I am horrified that a High Court judge was interfering in political matters like this," he said. He described Mason's alleged involvement as "extraordinary" and "scandalous". He said if Kerr wanted legal advice, he should have consulted himself or Byers. Indeed, Byers's legal opinion was given to Kerr on November 6, 1975.

Hocking's discoveries in Kerr's papers will only serve to burnish the legend Whitlam was a victim of a grand conspiracy.

The events of 1975 are well known and most are not in dispute. As the government lurched from crisis to crisis and struggled to reconcile its ambitious policy agenda with a deteriorating economic environment made worse by its own policy making, the Senate delayed passage of the government's money supply bills.

Opposition leader Malcolm Fraser said the "loans affair", an aborted attempt to borrow

$US4 billion through a Pakistani money broker to fund national resourceprojects, provided the circumstances it needed to continue to delay supply and force an election for the House of Representatives.

Whitlam wanted a half Senate election to break the impasse. Nine days before the dismissal several conservative state premiers met Fraser and agreed to advise state governors not to issue writs for a half Senate election.

Queensland premier Joh Bjelke-Petersen and NSW premier Tom Lewis had already breached convention by not allowing Labor nominees to fill casual vacancies caused by the death of senator Bert Milliner and senator Lionel Murphy's appointment to the High Court.

Cabinet authorised "expenditure control measures" as supply was running out and began planning for payment of salaries through private trading banks. Treasury advised salary payments could be met up to November 30.

According to Fraser, on November 11, 1975, he received a call at 9.55am from Kerr, asking him for several undertakings if Whitlam was dismissed. Fraser agreed. Kerr told Fraser this before telling Whitlam of his plans. This is critical because it gave Kerr the signal that Fraser would accept his actions. Although Kerr disputed this, it is supported by accounts from senator Reg Withers, MPs Peter Nixon and Vic Garland, and Fraser advisers David Kemp and Dale Budd.

At 10am, Whitlam phoned Kerr and said he would recommend a half Senate election at their meeting at 1pm. But when they met, Kerr, armed with Barwick's formal advice, dismissed Whitlam. Barwick had consulted Mason, and fellow judge Ninian Stephen, although this was not known at the time. Fraser was installed as "caretaker" prime minister at 1.30pm.

Despite supply later being secured and the House passing a no-confidence motion in Fraser, Kerr dissolved the parliament on the basis of 21 other bills being rejected and an election was scheduled for December 13. At the election, Labor was comprehensively routed, losing 30 seats.

Kerr apparently wanted Mason to come clean about his role to absorb some of the "vicious criticism" he received. But Masonhas thus far not discussed his role. When I asked Mason last year if he would write about the dismissal for a forthcoming book of essays, he replied, "I do not wish to reflect on the dismissal." (He is reported to be writing for Fairfax newspapers today.) Barwick, however, defended his role.

Nor should Fraser's role be forgotten or forgiven. Today, he is a latter-day darling of the political Left. But it was his brinkmanship that took the political system to crisis point. Fraser used his discussions with Kerr sanctioned by Whitlam to apply psychological pressure on Kerr saying if he didn't intervene, the opposition would say he had "failed his duty". Shadow attorney-general Bob Ellicott wrote a legal opinion arguing Kerr should use his "reserve powers" to dismiss the government.

Some may after ask all these years if the dismissal still matters. It does, because a precedent now exists for a government elected by the people to be dismissed by an appointed governor-general while ignoring the advice of the prime minister and, as Kerr himself alleged, colluding in secret with High Court judges and the opposition, and supported by conservative state premiers, to bring down a government.

As Whitlam says, the most important of his injunctions was not to "maintain the rage" but to maintain the "enthusiasm for Australian parliamentary democracy".

While Kerr probably had the authority to dismiss the government, conventions were trashed, precedents were flouted and the advice of the prime minister and the government's chief legal officers were ignored.

Whitlam has always wanted the policy record of his government to be of greater focus than how it was dismissed. It was indeed a government that had many achievements in health, education, social policy, law reform and foreign affairs.

There were also great mistakes. While a majority of voters never approved of the dismissal and thought supply should be passed, when they had a chance to vote the government out of office, they did so emphatically.

But as more and more evidence comes to light that Whitlam's political execution may have been conceived in secrecy and deceit across all branches of government, effectively green-lighted by the monarch, the dismissal will continue to cast a long shadow over the Whitlam government.