Labor stalwarts still maintaining the rage over judge's secret role in dismissal of Whitlam

IN the Labor Party's hierarchy of villains responsible for the dismissal of the Whitlam government on Remembrance Day 1975, governor-general John Kerr has always topped the list, followed by chief justice Garfield Barwick and opposition leader Malcolm Fraser, even though the latter was responsible for forcing the political system to crisis point.

But the discovery in Jenny Hocking's book, Gough Whitlam: His Time, that High Court justice Anthony Mason had extensively and secretly counselled Kerr during the crisis, canvassed the use of the reserve powers to dismiss Whitlam and drafted a letter of dismissal for Kerr to use, elevates Mason to the upper echelon of Labor's list of political villainy.

Mason says there are inconsistencies between his recollections and the Kerr testimony quoted in Hocking's book. Although Mason says the discussions were between "friend(s)", he didn't "encourage" dismissal and urged Kerr to "warn" Whitlam of his intentions, he has confirmed a highly unconventional relationship that sets a dangerous precedent and displays a lack of judgment. Mason may be downplaying his impact, but Kerr says he was "fortified" by their "running conversation" throughout the crisis as the opposition blocked the government's supply bills in the Senate, edging the government towards shutdown.

The true extent of Mason's role and the importance of it to Kerr not only demands a reinterpretation of the interplay of the principal protagonists but blackens Mason's reputation.

The reaction from several ministers in the Whitlam, Hawke and Keating governments runs from stunned silence to seething anger. It is near certain that if Mason's role were known, he would not have been appointed chief justice by the Hawke government in 1987.

"There was no way a judge who had connived with John Kerr to dismiss a Labor government would have been appointed chief justice," former Hawke-Keating government treasurer Ralph Willis says. Describing Mason's role in the dismissal as "seedy", Willis says he "doubly deceived two Labor governments".

Gareth Evans, who was also in cabinet at the time, says "the government would certainly have thought long and hard" about the appointment. He is critical of Mason's "extraordinary level of indifference to constitutional convention". Like Willis, he says history will ensure Mason's character is forever "tarnished".

The then attorney-general, Kep Enderby QC, said earlier this week that he was "horrified" to learn of Mason's involvement. Enderby, who had spoken to Kerr regularly during the crisis, labelled Mason's role as "extraordinary" and "scandalous".

These remarks could be interpreted as Labor ministers maintaining the rage, as Whitlam urged them to do during the dismissal. But what is more important is how Mason's role recasts our understanding of the dismissal and the dangerous precedent it sets.

Whitlam argued the dismissal was a coup "conceived in secrecy and deceit" and executed by ambush. Kerr planned the coup behind Whitlam's back, ignored his instructions not to confer with Barwick and terminated his prime ministership after signalling to Fraser that this was his intention. The accumulation of evidence to support the Whitlam case is greater than ever.

Kerr was leaving nothing to chance. He used Mason for advice. When he signalled his intentions to Fraser on the day of the dismissal, before speaking to Whitlam, he was assured of the opposition's support for his actions. (While Kerr denied making such a call, Fraser and others say it did occur.) Against Whitlam's wishes Kerr spoke to Barwick and secured formal advice arguing he had the power to dismiss the government and that it was his "duty".

Barwick says he discussed his advice with justice Ninian Stephen, who concurred. Justice Harry Gibbs also supported it. If the dismissal was challenged in the High Court, a majority of the bench, with prior knowledge of the dismissal, would uphold Kerr's actions.

Meanwhile, Hocking's book reveals that Kerr had spoken to Prince Charles in September 1975 about the prospect of dismissal and secured a letter from the Queen's secretary assuring him that any attempt by Whitlam to remove him, which he always feared, would be "delay(ed)".

Enderby says, "It was bad enough for Barwick to deal with Kerr behind Whitlam's back, let alone Mason also being involved." While this is undoubtedly true, Kerr and Mason also deceived Barwick.

Barwick now emerges as a less significant player than Mason. As Barwick wrote in his memoir, A Radical Tory, Kerr raised the escalating political row with him on September 20, 1975, and asked if he would provide advice if the need arose. It was not until November 9 that Barwick again spoke to Kerr and they agreed to meet the following day to discuss the crisis. At that meeting, Kerr had already decided he would dismiss the government the next day. Barwick provided formal advice via letter later that afternoon.

Mischievously, Kerr asked Barwick to run his advice by Mason as he was "curious to know" what he thought. Mason "agreed" with Barwick's advice. In a statement of pure irony, Barwick writes, "I doubt if Sir Anthony's opinion had any effect whatever upon Sir John's decision."

Whitlam also misjudged Mason. In an article for this newspaper in 1994, Whitlam argued that while previous governors-general had consulted chief justices in the past, there was no precedent similar to the circumstances of 1975. "There is now no chance," he wrote, that facing the same political crisis and asked to provide advice, "(chief justice) Mason would provide it".

The Mason revelations sent shockwaves through the Labor Party and will necessitate a rethink of the role and integrity of the key protagonists in the greatest political crisis in our history.

Of greater significance, however, is that notwithstanding the Whitlam government's many achievements to match its many mistakes and scandals, it did enjoy a mandate from the people that was fatally undermined by secrecy, collusion and deceit, which stretched from the executive to the legislature and to the judiciary.