September 15th 2012


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Articles from this issue:

LEGAL AFFAIRS: No place for Sharia law in Australia

EDITORIAL: Gillard's flawed plan to fix our schools

CANBERRA OBSERVED: Labor promises grandiose schemes it can't deliver

ENVIRONMENT: Is the Arctic sea ice in "a death spiral"

BANKING: Big four banks overdue for a shake-up

MARRIAGE: State push for same-sex unions could trap Nicola Roxon

TASMANIA: Euthanasia: the ultimate in elder abuse

SECURITY AND INTELLIGENCE: New light shed on Russia's "other" spy agency

CONSTITUTIONAL LAW: Justice Mason's role in the 1975 Whitlam dismissal

SCHOOLS: Constant practice needed to acquire basic skills

SOCIETY: Plans for World Congress of Families in Sydney next May

OPINION: Immigrants: a compassionate alternative

LETTERS

CINEMA: Futuristic sci-fi action set after global war

BOOK REVIEW Scholarly tour de force

BOOK REVIEW The impact of the sexual revolution

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CONSTITUTIONAL LAW:
Justice Mason's role in the 1975 Whitlam dismissal


by Hal G.P. Colebatch

News Weekly, September 15, 2012

A little behind current events, far-left polemicist Mike Carlton has attempted to add another layer of mythologising to the left’s favourite fairy-tale: the 1975 dismissal of the Whitlam Government. One wonders what they would do without it.

Writing in the shrinking, sinking, Fairfax press (where else?), he claims to have discovered (quelle horreur!) that, before the dismissal, Governor-General Sir John Kerr consulted with High Court judge, Sir Anthony Mason!

Carlton claims that “as governor-general he [Kerr] had no constitutional right to get advice, however informal, from a judge”.

I would be interested to know what part of the Australian Constitution Carlton thinks gives grounds for this bizarre statement. It has been established that the governor-general’s reserve powers are not justiciable — that is, they cannot be judged in a court of law. This means, basically, that he can get advice from anywhere he chooses, a senior judge being an obvious if not inevitable source. The point, after all, is not the source of the advice, but whether or not it is correct.

The “logic” of Carlton’s argument, if correct, is that the governor-general would not be allowed to get advice from anyone.

If this were in fact the case, it would be easy to imagine an unscrupulous prime minister appointing as governor-general someone with no legal or constitutional knowledge at all, who would be a helpless pawn in the prime minister’s hands (rather as the British government once chose a Hanoverian for king because he could not speak English and would not interfere with things).

Sir John Kerr was, as it happened, himself an experienced judge and lawyer, but another governor-general might not necessarily be legally experienced at all. On vital constitutional matters, on which, conceivably, the fate of the country might depend — all the way up to, say, declaring war — is a governor-general supposed to make decisions by the seat of his or her pants?

In Australia’s history one federal government has been dismissed, with an election called immediately, and one state government — the Lang government in New South Wales in 1932. In both cases the governments concerned were unable to govern because they were unable to obtain supply.

In the case of NSW Premier Jack Lang, his government was planning to repudiate the state’s debts. This, coming at the depth of the 1930s Depression, would have had a catastrophic effect on Australia’s international credit-worthiness. When the Commonwealth cut off the NSW government’s funding, it tried to stagger on for a few days on such things as the takings of bus-fares — a plainly impossible situation.

Without supply, the Whitlam government would have been unable to pay pensions, the public service, hospitals or the armed forces.

There is a suggestion that this was the real motive for the notorious Khemlani loans affair: that it would allow the executive to govern without parliament’s consent (the same thing over which King Charles I was beheaded). One of the major reasons for having a governor-general at all is to turn out a government and call an election if necessary. Whitlam himself, also an experienced lawyer, accepted the dismissal as legal.

The Whitlam government, further, had by then become the subject of an avalanche of scandals. Two of its senior ministers — Rex Connor and Jim Cairns — were arguably insane in the literal, clinical sense. Connor’s madness was commented on in detail by a later Labor Finance Minister, Peter Walsh, who also stated that a majority of Whitlam’s ministry were economic cranks. Two former ministers — Al Grassby and Lionel Murphy — appeared to have links with organised crime.

While strictly speaking there is no such thing as a mandate in Australian politics, the December 1975 election showed Whitlamism was decisively rejected by a strong majority of the electorate.

Given all the history of state and federal governments, it is certainly impossible to say that the reserve powers have been overused. Rather, they have arguably not been used often enough. (West Australian state governor, Gordon Reid, though at the time a very sick man, should have turned out the scandal-ridden Burke Labor government in the 1980s).

Further, although Carlton writes this as though he has discovered a scandalous secret, the fact that Sir John Kerr had consulted Justice Mason as well as Sir Garfield Barwick had not been public knowledge. Gerard Henderson and others had written about it long before. All it meant was that Sir John had consulted two of Australia’s most senior judges. Far from being scandalous, this was simply evidence of caution and propriety.

While Sir Garfield Barwick was a former Liberal politician, Justice Mason had never been in politics. He was a former Solicitor-General — that is, the Commonwealth’s chief administrative law officer.

Carlton further claims that Justice Mason had no right to give advice. Again, I would be interested to see where in the constitution this is stated. Anyone has the right to give advice, though some are plainly better qualified than others.

Carlton claims, rather bewilderingly: “Mason seems to have had an odd notion of the Westminster doctrine of the separation of powers, understandable in a first-year law student but startling in a former federal solicitor-general. It was not impossible that the dismissal could end up before a full bench of the High Court. If it had, would Mason have sat there quietly judging away without revealing his role, or would he have withdrawn? We do not know.”

Judges sitting on cases where they have previously given advice disqualify themselves. The only sense that can be extracted from this is that Carlton might do well to study a little first-year law himself.

Hal G.P. Colebatch, PhD, is a Perth author and lawyer. The above article is a slightly expanded version of the one that appeared in News Weekly’s printed edition. 




























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