High Court Judges and not just Dyson Heydon

Jun 29, 2020

A High Court judge colluded in the dismissal of a Prime Minister. The separation of powers was put aside. My confidence in our institutions took a battering.

The role of Dyson Haydon has been correctly revealed and criticised, but what of the role of Sir Anthony Mason, who whilst a judge of our High Court actively colluded with the Governor General in the dismissal of the elected Whitlam government.

Anthony Mason tutored John Kerr for months in preparation for Kerr’s dismissal of the Whitlam government. He drafted a letter of dismissal, even though it was not used. He advised John Kerr not to see the Speaker of the House of Representatives, despite the Speaker wanting to convey to him the fact that the House of Representatives had passed a motion of no confidence in Malcolm Fraser and called for the recommissioning of Gough Whitlam.

Anthony Mason’s role in the dismissal of the Whitlam government was first revealed eight years ago in Jenny Hocking’s book ‘Gough Whitlam: His Time’. Jenny Hocking spelled out the behaviour of Anthony Mason again in a later book in 2016, ‘Making Modern Australia, the Whitlam Government’. In that book, she said

What was unknown then, and would remain unknown for nearly 40 years to come, was that during the period in which these critical High Court cases were being considered, one of the sitting High Court justices was in secret discussions with the Governor-General on constitutional and legal matters, canvassing the bounds of vice-regal action and prerogative, and leading to the dismissal of the Whitlam government. It is now known that Justice Anthony Mason played a pivotal, undisclosed, role in counselling Kerr throughout 1975, as I revealed in Gough Whitlam: His Time, and which Mason then, for the first time, publicly confirmed. From August 1975 Mason was critically involved in Kerr’s considerations as he moved towards the dismissal of the Whitlam government, while these remaining cases were still in progress(in the High Court), including drafting the letter of dismissal for the Governor-General. Their meetings were kept hidden, secret both from Mason’s fellow justices on the High Court and from the Prime Minister, Gough Whitlam, and none was announced in the Vice-Regal news. The failure to divulge such a significant interaction and the potential perception of conflict of interest during these defining High Court cases constituted at best a profound breach of institutional propriety.

 But Anthony Mason was not finished with tutoring the Governor General and drafting a letter of dismissal. He advised John Kerr on the afternoon of the dismissal that he need not meet the Speaker of the House of Representatives who was knocking at his gate at Government House, Yarralumla.

In my autobiography ‘Things you learn along the way’ (1999), I wrote about how John Kerr was agitated over his problem with the Speaker wanting to convey to him the resolutions of the House of Representatives. I was then Secretary of the Department of Prime Minister and Cabinet and attended the swearing in of the new Fraser Ministry on the day following the dismissal.

One thing which still stands out vividly in my mind about that day (November 12) is the swearing-in ceremony at Government House and how agitated the Governor General was in explaining why he had refused to see the Speaker of the House of Representatives the previous afternoon. The parliament was still in session. The House of Representatives had passed what can only be described as a momentous resolution: ‘That this House expresses its want of confidence in the Prime Minister [Fraser] and request the Speaker to immediately advise His Excellency the Governor General to call the Honourable Member for Werriwa [Whitlam] to form a government.’

Speaker Scholes went to Government House, but the Governor General refused to see him. Kerr said next day that he was very conscious of the House of Representatives resolution and that the Speaker was wanting to see him. But, as I noted at the time, he explained clearly and with much emotion ‘that once I decided on the course of action to be pursued [I] had to see it through’.

 What I did not know in 1999 when I wrote the above, was that in his panic with Speaker Scholes at his gate, Kerr rang Anthony Mason for advice. Jenny Hocking has revealed that Anthony Mason told John Kerr that the motion of no-confidence in Malcolm Fraser was ‘irrelevant’. What extraordinary and partisan advise!

Our democratic traditions and history were trampled on.

But there was more to come.

Anthony Mason was appointed Chief Justice by the Hawke government which knew nothing about his secret involvement in the demise of its predecessor Labor government. That Mason failed to deliver that critical information to the Hawke government was a self-serving omission. To do so would have admitted a clear breach of separation of powers through Mason’s secret discussions and advice to Kerr. The Hawke government had a right to know, just as his fellow judges had a right to know, of his contemporaneous conversations and advice to Kerr at the very time the High Court was considering cases relating to the 1974 Joint Sitting which addressed in part the question of the Governor General’s powers on which Anthony Mason was secretly advising Kerr.

The separation of powers came out a very sorry loser in this tawdry episode. No wonder our trust in institutions is so seriously eroded when power is abused by people who should be setting a high standard.

From 1975 I became less trusting of people (in high places) whom I had been led to believe should be respected, like Governors General and High Court judges.

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