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Snapshot

  • The recent release by the National Archives of Australia of the Palace Letters between Governor General Sir John Kerr and the Queen’s Private Secretary has revealed even more starkly the roles played in this seminal political event by some of our then national leaders.
  • Understandably, the main focus of attention by the media and general members of the public has been on what role if any was played by the Queen and her personal staff.
  • However what may be of particular interest to lawyers, is the differing accounts of the role played by then Chief Justice of the High Court, Sir Garfield Barwick.

The recent release by the National Archives of Australia of the Palace Letters between Governor General Sir John Kerr and the Queen’s Private Secretary has revealed even more starkly the roles played in this seminal political event by some of our then national leaders. Understandably, the main focus of attention by the media and general members of the public has been on what role if any was played by the Queen and her personal staff.

Sir John Kerr always maintained that he did not involve the Queen in the controversy because the responsibility was his. In his autobiography ‘Matters for Judgement’ Sir John wrote:

‘I did not tell the Queen in advance that I intended to exercise these powers on 11 November. I did not ask her approval. The decisions I took were without the Queen’s advance knowledge. The reason for this was that I believed, if dismissal action were to be taken, that it could be taken only by me and that it must be done on my sole responsibility. My view was that to inform Her Majesty in advance of what I intended to do, and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers; and I must not take such a risk.’

However, the most recent release of papers discloses an exchange about six weeks prior to the dismissal of the Whitlam government. On 12 September 1975, Sir John wrote to Sir Martin Charteris, Private Secretary to the Queen, setting out in considerable detail the then current political situation.
He wrote:

‘I am also keeping my mind open as to the constitutional issues. If the Prime Minister and the Leader of the Opposition get into a battle in which the Senate has defeated the Budget, the Prime Minister refuses to recommend a dissolution, my role will need some careful thought though, of course, the classic constitutional convention will presumably govern the matter.’

In a reply 12 days later, Sir Martin thanked the Governor General for his letter of 12 September noting that ‘the Queen has read (it) with much interest’. In a handwritten note at the end of the letter, Sir Martin wrote:

‘P.S. I suppose you know Eugene Forsey’s book “The Prerogative of the Dissolution”? I believe he lays it down as a principle that if supply is refused this always makes it constitutionally proper to grant a dissolution. MC’

Forsey was a world-renowned, Canadian constitutional expert, especially on the reserve powers of the Crown. In his letter of 12 September, the Governor General had written to the Queen’s Secretary raising the prospect of the Prime Minister refusing to recommend a dissolution of Parliament so that a general election could be called. Was the Queen’s Private Secretary in his reply on 24 September implicitly expressing a view, based on an eminent constitutional expert, that in the event of supply being refused it was always constitutionally proper to grant a dissolution? Did Sir John Kerr view this response from Sir Martin Charteris as encouragement to disregard the advice of the Australian Prime Minister of the day and, if necessary, act unilaterally in achieving a dissolution of Parliament by other means? That is precisely what Sir John did just 48 days later.

Whilst much attention has been devoted to the role of the Royal Household as disclosed in the Palace Letters, the real enquiry should be much closer to home. The Letters provide fascinating insight into the role played by Sir Garfield Barwick, then Chief Justice of the High Court, in advising the Governor General of the constitutional propriety of what he was proposing to do in the unfolding political crisis. Criticism has been directed at the idea of a Chief Justice acting as an adviser to the Head of State on a matter which could possibly have found its way for resolution to the High Court.

Sir Garfield always justified his advisory role in the dismissal by stating that there was almost no chance of the matter being considered by the High Court. Indeed, in his letter to Sir John of 10 November 1975 the Chief Justice stated that the matter was ‘unlikely to come before the court’.

The recently released letters reveal that Sir Garfield Barwick’s role in advising the Governor General started earlier than has generally been appreciated. On 20 September 1975 Sir John Kerr wrote a letter to Sir Martin Charteris bringing the Queen up-to-date on his thinking about the looming crisis. In particular, he informed Sir Martin that the Prime Minister had broached with him the idea that section 53 of the Constitution might be interpreted as denying the Senate the power to reject money bills, and therefore the power to withhold supply. Sir John Kerr expressed the view that:

‘It has always been thought by lawyers to leave the Senate with power to reject money bills but there has been a convention that it should not – a convention always observed until now…. The Prime Minister, in Port Moresby, told me that he was minded if the Senate rejected the Appropriation Bills, to present them to me nevertheless for assent with advice that the Senate has no legal power to reject them. He asked me what I would do if he were to take this course. I rather parried this by saying that if he did this there would be an uproar but doubtless the High Court, assuming I did assent, would hear immediately a case to declare the resulting “acts” invalid and he agreed. The Attorney-General has been reported as saying that the Senate has no legal power to reject money Bills but he has written to the press denying that he said this. In fact, if the Opposition does reject the Bills and the Prime Minister takes the suggested course backed by proper legal opinion, I may have to consider dissenting. Money would probably not have run out at this stage. There would be a couple of weeks to test the point in the High Court.’

What Prime Minister Whitlam was raising was the prospect of the Governor General assenting to money bills without the Senate having had any role at all, on the basis of a convention that the Senate had no right to reject money bills. And what the Governor General was conveying in this letter was that he may or may not comply with the Prime Minister’s proposal, but that it could well end up in the High Court.

Despite Sir John’s view that this issue may end up in the High Court, at a dinner on the night of 20 September he discussed it with Chief Justice Sir Garfield Barwick. In the Governor General’s letter of 20 September to Sir Martin Charteris, Sir John wrote:

‘I should say that at the Dinner of the Order of St Michael and St George Sir Garfield told me he could not, for internal reasons in his court, guarantee an early decision and expressed the view that the need for Senate acquiescence was quite clear. His opinion was that in the contingency under consideration I should refuse to assent but agreed that, alternatively I could leave the matter to them.’

Based on Sir John’s account, here was the Chief Justice of Australia stating an unequivocal opinion on the lack of constitutionality of a course of action that had been ventilated with the Governor General by the Prime Minister. Not only was Sir Garfield expressing his view in the knowledge that the matter could well end up in the High Court, but he was even suggesting the alternative prospect that Sir John ‘could leave the matter to them [the judges]’.

Accepting Sir John’s contemporaneous account, here was a clear expression of Sir Garfield Barwick’s willingness to provide behind-the-scenes advice to the Governor General about a major constitutional and political issue in the knowledge that the matter not only might come for resolution to the High Court, but that the Governor General at a time of crisis might effectively remit it to the Judges of that court for a decision.

Sir Garfield Barwick, in his autobiography ‘A Radical Tory’, provided a very different account of the dinner conversation with the Governor General. He wrote:

‘During a lull in conversation during the latter part of the Dinner, the Governor-General attracted my attention and said that he was very worried about what was going on at Canberra…. He asked me did I see any way in which the High Court could be called upon to resolve the situation should it develop. The Governor-General did not formulate the situation he had in mind but I took it to be an impasse between the two chambers over supply…. I was disinclined to answer or discuss the Governor-General’s question, particularly in any constitutional discussion. So I was quite unwilling to be drawn. But I said that the matter appeared to be for the Parliament itself and not for the Court to resolve.’

These two versions are obviously quite inconsistent. Sir Garfield’s historical justification was not published until 1995. Sir John’s account, on the other hand, was an utterly private communication written to the Queen’s Secretary on the very night of the dinner.

Accepting the Governor General’s contemporaneous version, it clearly demonstrates Sir Garfield’s willingness to provide behind-the-scenes advice on a politically and legally charged issue of the utmost national importance that could well have ended up for resolution in his court. It flies in the face of a number of fundamental principles of democratic governance, not least of which is the separation of powers between the judiciary, the legislature and the administration.


Mark Tedeschi AM QC is a barrister in Wardell Chambers, Sydney. He was formerly the Senior Crown Prosecutor of New South Wales.