Further Murky Details Emerge of how the Conservative Old Boys Power Elite Contrived to Subvert and then Dismiss the Whitlam Government. What a travesty, and I for one maintain the rage about it all. A-h-h .. What might have, and should have been .. Secret advice that might have undone Gough Whitlam From The Australian THE dismissal of his government means Gough Whitlam’s name will forever be linked to that of former governor-general John Kerr. But it should also be linked to three of the nation’s greatest lawyers, who gave the Liberal Party a legal opinion that amounts to a road map for disposing of the Whitlam government while it retained the confidence of the House of Representatives. The opinion provides an extraordinary insight into the chain of logic that enabled three great lawyers to reach this conclusion while also stating that a governor-general is not entitled to dissolve the House of Representatives without the advice of responsible ministers. The mechanism was simple: dismiss one lot of ministers and appoint others. While there is no first-hand proof that this opinion was read by Kerr, there are uncanny similarities between the course of action outlined in the opinion and some of the steps taken by the governor-general in the days leading up to the dismissal on November 11, 1975. In the event, Kerr appointed Malcolm Fraser prime minister and Fraser provided the advice Kerr required. IN DEPTH: Gough Whitlam The opinion’s persuasive power rests on the stature of its authors: Keith Aickin, a former director of BHP and paragon of the Melbourne establishment who later served on the High Court; Murray Gleeson, the dominant figure of the Sydney Bar who later served as chief justice of NSW and, subsequently, Australia; and Sydney University’s Pat Lane, one of the nation’s most brilliant scholars on constitutional law. Their view of the power of the governor-general to dismiss an elected government came at a critical time — October 23, 1975 — one day after Kerr had raised doubts about a pro-dismissal opinion that had been issued by eminent silk Robert Ellicott who was then one of opposition leader Malcolm Fraser’s frontbenchers. Paul Kelly, in his book Inside 1975, says the opinion by Aickin, Gleeson and Lane was read by Fraser but it was not known whether it was read by Kerr. The opinion is also mentioned in Michael Pelly’s biography of Gleeson, who is quoted as saying it was “strong on the existence of power and weak on the exercise of power ... weak in the sense of very conservative in the circumstances in which the power would be exercised”. Gleeson’s assessment of his own opinion needs to be viewed in context. The opinion states that “the governor-general is entitled to seek advice on his powers from sources outside the ministry. There is, for example, precedent for the seeking of advice from the chief justice of Australia”. At the time, Garfield Barwick was the chief justice. He was also Ellicott’s cousin. Whitlam had refused Kerr’s request to consult Barwick. But it is now known that Barwick provided written advice to Kerr supporting the option of dismissal. The action plan implicit in the opinion starts to become clear soon after the midpoint of the 12-page document when the authors assert that a governor-general would not be entitled to dissolve the House of Representatives “without being supported by the advice of responsible ministers”. Later, they conclude a governor-general does have the power to dismiss a government that has the support of the House of Representatives if it cannot secure passage of its budget. But if such a step is to be taken, they place weight on assessing “the mood of the electorate”. They write that a dismissal in those circumstances would have such serious implications that it would be likely to occur only “in a case where the governor-general was satisfied that the majority in the House of Representatives did not also represent a majority in the electorate”. They warn that the consequences for the authority of the Crown of misjudging the electorate’s mood would be far-reaching. “Nevertheless, the power is there and it would be available to be exercised in a case where the governor-general considered that the maintenance of the law and the constitution, and the welfare of the nation required its exercise, and that the manner and possible consequences of its exercise would not impair the authority of the Crown.” But they also put forward another basis for action — one that meant, in their opinion, that it would be legitimate to dissolve the House of Representatives even if most of the community supported the government. “ ... it is possible to envisage a situation where the basis of the dissolution was not the opinion of the governor-general that the electorate would not support the majority in the lower house, but rather that the parliamentary situation had become such that it ought to be resolved by the electorate,” it says. This document has been preserved for about the past 30 years by one of the nation’s leading barristers, Michael Inglis, who has provided it to The Australian to enable a greater understanding of the events that led to the end of the Whitlam government. The Liberal Party had commissioned the opinion from Freehill Hollingdale & Page whose former managing partner, John Rothery, retained a copy and gave it to his friend Inglis in the 1980s. Inglis had worked at the High Court and had been close to Barwick.
Posted on: Thu, 23 Oct 2014 03:49:44 +0000
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