On Tuesday 21 October, in a call to Parliament House, Kerr asked me for an opinion from Kep Enderby, the Attorney-General, and Sir Maurice Byers, the Solicitor-General. Enderby gave his and Byers' opinion to Kerr on 4 November.
Kerr did not tell me on 11 November 1975 that Barwick's advice had been in a letter. When I reminded him that I had advised him not to consult Barwick, he merely shrugged. The letter was not released until a week later after Enderby had published his and Byers' advice to Kerr. On the ABC Barwick did not say and was not asked whether he knew that Kerr had asked me if he should consult Barwick and that I had advised Kerr that he should not. Nor did he say nor was he asked whether he knew that Kerr had asked me to obtain an opinion from Enderby and Byers and that Enderby had already given him the opinion.
The question on which Barwick's advice was sought and given was much more a political than a constitutional question. This , of course, is the central truth of the whole matter: the political crisis was close to settlement by political means. Barwick has never shown any misgivings about the composition and conduct of the Senate in October and November 1975. Two State governments had changed the composition of the Senate elected by the people in May 1974. In particular, the Queensland Government and Parliament had appointed a non-Labor person to replace a deceased Labor Senator. The non-Labor replacement never voted on the Budget bills. If a Labor replacement had voted on the crucial motions to delay the Budget bills, the votes would have been even and the motions would not have passed.
A dozen Coalition senators had been first appointed to the Senate by State Governments to replace departed senators of the same political persuasion; many of them were about to repudiate Fraser's tactics. Fraser conned Kerr into believing that a majority of senators would in the end vote to reject the Budget bills; Fraser was saved by Kerr.
Fraser had not merely spurred the Senate into stalling the Budget bills, he had spurred the Senate into rejecting, twice, 21 other bills. During the luncheon adjournment on 11 November 1975, Kerr commissioned Fraser as Prime Minister on condition that he advise the dissolution of both houses of parliament on the ground that the Senate had twice rejected the 21 other bills.
If Kerr had genuinely believed this ground, he would have taken two courses available to him. He would have secured an undertaking from Fraser that, if he won the elections, he would reintroduce and support the 21 bills. He would also have required Fraser to advise that a referendum be held on the proposal, twice rejected by the Senate, to ensure that elections for both Houses are always held on the same day.
The ultimate constitutional outrage occurred after the luncheon adjournment. The Senate passed the Budget bills. The House of Representatives defeated Fraser's motions, declared no confidence in him as Prime Minister and asked Gordon Scholes, the Speaker, to inform Kerr that I should be restored as Prime Minister. Kerr defied the House. He retained Fraser so that he could countersign the proclamation to dissolve both Houses. Only then did Kerr receive Scholes.
In referendums in May 1977, a large majority in all States, incensed at Bjelke-Petersen's conduct in tainting the Senate, changed the Constitution to ensure that any vacancies should be filled from the same party to which the former senator belonged at the time of election, and, incited by the conduct of Barwick, by then nearly 74, changed the Constitution to ensure that no future justices of the High Court could remain in office beyond 70 years of age.
I myself realise that many are puzzled that I do not resile from the view I expressed last July:
The apparent pretext for showing Barwick's letter to Mason was that Mason had been Solicitor-General before he was appointed to the Court. Barwick did not tell Henderson or Donald that Mason knew, or that he had told Mason, that Kerr had sought and received contrary advice from me, Enderby and Byers. I would be shocked if Mason had expressed a view after knowing or being told. I find it hard to believe that he did know or was told.
Sir Anthony has led the Court to reverse Barwick's notorious decisions on the laws concerning income taxation and interstate trade. He and the other justices now know and heed the common law as it has been developed in the United States, Canada and New Zealand and not just in England. He and they are aware how legal principles are developed and applied by the United Nations and its specialised agencies. In appropriate gatherings and journals Sir Anthony has explained the Mabo judgement. The present High Court is composed of persons who understand the changes which have occurred and must occur in a country with Australia's location and population.
On the ABC Barwick repeated the doctrine which he set out in his letter to Kerr on 10 November 1975: "A government having the confidence of the House of Representatives but not that of the Senate, both elected Houses, cannot secure Supply to the Crown".
Thus in 1975 Barwick challenged the legitimacy of the last Menzies Government, which lost its majority in the Senate the year after Menzies told Barwick to make an immediate decision: resign from Parliament if he wanted to be Chief Justice or remain in Parliament if he wanted to take his chances against Holt to be the next Prime Minister.
In 1994 Barwick challenges the legitimacy of the Keating Government, which had difficulty getting its Budget bills through the Senate in November 1993. There was, however, no prospect that Hayden would have sought Mason's advice on the situation or that Mason would have given it.
According to Barwick, the last Fraser Government lost its legitimacy when it lost its Senate majority on 1 July 1981. According to him, the Holt, Gorton, McMahon, Whitlam and Hawke Governments never were legitimate; none of them had Senate majorities.
It can never be overemphasised that the 1975 Budget was never rejected; it was only stalled. The senators never voted to refuse supply; they simply refused to vote on it at all. One defector would have sufficed to end the deadlock; two would have sufficed to end Barwick's aberrations on politics for all time. Just as his successors on the High Court have ended his aberrations on the law.
On Thursday 6 November 1975, in response to an urgent and unusual request from Yarralumla, the Governor-General's official residence in Canberra, Alan Christie, the senior mechanical engineer in the technical services section of the Department of Housing and Construction, and Bob Cameron, a maintenance officer, inspected His Excellency's study. It had been discovered, the officers were told, that conversations in the study could be overheard in the adjoining room used by secretarial staff. The officers were asked to arrange for the study to be soundproofed. Their inspection lasted from 5.30 p.m. to 8 p.m. Next morning, George Maren, a foreman in the Department, was instructed, on arrival for duty, that he and an apprentice were to go immediately for a job at Government House. They arrived at 7.45 a.m. and stayed till noon; they returned at 2.30 p.m. and stayed till 4.05 p.m. Since the job had not been completed and was said to be urgent they were told to return on Saturday afternoon; they were there from 2.00 till 4.00 p.m. Painters came in on Sunday to complete the work.
On 11 November 1975, in his newly soundproofed study, the Governor-General, Sir John Kerr, dismissed me as Prime Minister of Australia.
Trivial in itself, the soundproofing episode takes its place in a pattern of conduct of which it is by no means the most bizarre example. It is not only interesting as evidence of the kind of bunker mentality which seems to have descended upon Yarralumla, although I should have thought my colleagues and I, not Sir John Kerr, were the ones under siege. The real point, however, is that it illustrates perfectly the essential nature of Sir John's conduct. The key to the entire operation by which my Government was dismissed was secrecy. Surprise was all. Secrecy was not incidental to the enterprise; it was essential.
The Truth of the Matter
(Penguin 1979)
Who for instance, is "the third man" - Sir John Kerr's other secret adviser?
It is just not good enough that his name, his position and the nature of his advice should be preserved in some sort of time capsule, to be opened only when all of us are dead.
By all the constitutional rules, I was certainly entitled to know then, as Prime Minister, who was advising Sir John Kerr, but all of us are surely entitled to know now.
Sydney Journalists Club
14 February 1979