This week, further information was revealed on the role of Sir Anthony Mason in advising the Governor-General, Sir John Kerr, in the events leading up to Prime Minister Gough Whitlam’s dismissal in 1975. The revelations raise renewed interest in the propriety of the Judiciary advising the Governor-General in times of constitutional crisis. Gabrielle Appleby considers the question: if the Judiciary shouldn’t, then who should advise the Governor-General?
Jenny Hocking’s new biography of Prime Minister Gough Whitlam reveals for the first time the long suspected role of Sir Anthony Mason in advising the Governor-General, Sir John Kerr, in the lead up to Whitlam’s dismissal. According to a previously unknown archival record written by Kerr, Mason, who was a Justice of the High Court at the time, ‘played a most significant part in my thinking at that critical time’. (An extract of the biography can be accessed here).
Kerr claimed Mason would have been happier if ‘history never came to know of his role’. Mason’s response to the revelations claims that he was not against the publication of his involvement, but that Kerr would have to record that Mason had said that he should warn the Prime Minister of his intended actions and give him the option of calling a general election.
The propriety of the Judiciary as advisers to the Governor-General
The propriety of Chief Justice Sir Garfield Barwick’s role in advising Kerr on the Governor-General’s power to dismiss the Prime Minister has been debated since the crisis of 1975. The role of Sir Anthony Mason raises the same questions about whether the judiciary should become involved in advising the Governor-General. Doing so may not only undermine the judge’s integrity should the matter ever come before the court, but has the potential to undermine the apolitical nature of the judiciary, or at least the public perception of it.
Mason was not politically affiliated as Barwick was (Barwick was Attorney-General and Minister for External Affairs in the Menzies ministry). Mason was, however, the Solicitor-General for the Menzies government and appointed to the High Court by the McMahon government. For Mason to be counseling the Governor-General on the unprecedented dismissal of a Labor Government just doesn’t look good, whatever the reality of the situation.
The difficult position of the Governor-General
But leaving the judges’ role to one side, Hocking’s book highlights the difficult position of the Governor-General, or Governor in the States, when confronted with a situation where they may have to exercise powers other than on the advice of their responsible ministers. In 99 per cent of cases, the Governor-General does what the elected ministers tell them to do. Sign this Bill into law. Issue the writs for an election. Submit this bill for a referendum. Make this regulation.
Only on rare occasions does the Governor-General exercise his or her powers alone. This type of power is called a ‘reserve power’. The most common reserve powers are to appoint a Government when a hung Parliament is returned, and to dismiss a Prime Minister when they have lost the confidence of the lower House and refuse to resign, or when the Prime Minister has acted illegally or unconstitutionally.
While the occasions when the reserve powers arise may be rare, when they do arise they are often in the midst of constitutional uncertainty. The Governor-General must then ascertain the outer limits of his or her powers in a complex legal landscape.
The question of when the reserve powers can or should be exercised is very difficult. Such exercise requires the Governor-General to ignore the advice of the democratically elected government. These powers must only exist in limited circumstances, otherwise our whole democratically accountable system of government would fall down. In 1975, a tricky constitutional question arose as to whether, in a situation where the Government could not guarantee supply because the Senate was refusing to pass the annual budget Bills, the reserve power to dismiss a Prime Minister and his government, could be exercised.
In a constitutional crisis such as this, it is understandable that even an excellent lawyer appointed as Governor-General, as Kerr was, may wish to seek the comfort of a legal opinion. Other Governors-General and Governors have been retired sportspersons, or military officers. Presumably, these appointees would be in desperate need of legal assistance.
Who can the Governor-General turn to for advice?
So, who is there to provide their expert legal opinion to the Governor-General?
The answer to this question is, unfortunately for the Governor-General, not simple. Hocking asserts that ‘the Governor-General’s formal legal advisers are the Solicitor-General and the Attorney-General’.
The Attorney-General is known as the first Law Officer of the Crown, but is often no more than a Minister for Justice, a politician first and a lawyer second (if at all). The most senior legal figure in the Government is the Solicitor-General, the second Law Officer of the Crown. The Solicitor-General’s opinions will be used to quel disputes between departments on legal issues, and operates as the final word within the government if and until overturned by a court.
There has been a view that the Governor-General’s only legal advisers should be the Law Officers. One of the most eminent scholars on the Governor-General, George Winterton, noted that the Solicitor-General was ‘the usual source of quasi-independent advice’ to the Governor-General. Others have understood that there may be reason to believe that the Law Officers’ legal judgment (particularly when the Law Officers are also members of Cabinet, as in the case of the Attorney-General) has been biased by political considerations.
The Solicitor-General in 1975
Maurice Byers, the Solicitor-General, recalled that when Kerr had asked Whitlam for the advice of the Solicitor-General on the matter, Whitlam had told Kerr that the Solicitor-General was available to the Governor-General only through the Government of the day. Whitlam agreed to get an opinion on his (Whitlam’s) own behalf, saying that he would ‘probably’ pass it onto Kerr, but it remained a matter for Whitlam’s discretion. Ultimately, Byers, as Solicitor-General, drafted a joint advice with the Attorney-General, but this was only ever provided informally to Kerr in an unsigned form.
Whitlam’s assertion must be correct, at least at the Commonwealth level. The Solicitor-General is established as a statutory officeholder under the responsibility of the Attorney-General and the office’s role is dictated by the words of the statute. The office’s functions are stated as providing advice to the Attorney-General on questions of law referred to him or her by the Attorney-General.
Where does this leave the poor Governor-General?
It is understandable that the Governor-General may not just want any old lawyer’s advice. Sure, they could brief a silk from the bar, or request the advice of a constitutional law professor (and some have). But the Solicitor-General is the legal officer who speaks with finality in the government. The Solicitor-General’s advice operates in this way to give certainty and security to the government in its actions and decisions. It is understandable that the Governor-General may seek the comfort and assurance of the Solicitor-General’s advice in the same way.
Increasingly, governments have recognised the desirability of making the Solicitor-General available to the Governor-General, rather than having the Governor-General able to ‘shop’ for his or her own legal advice.
In 2010, an arrangement was put in place to ensure the Governor-General had access to the Solicitor-General in the event that the federal election returned a hung Parliament. Where there is a hung Parliament, the exercise of the Governor-General’s power to commission a government becomes more complex and potentially controversial, and he or she may require advice from quarters outside the former government as to the constitutional powers and the conventions that guide their exercise. As it turned out in 2010, the Solicitor-General advised the Governor-General after the election returned a hung Parliament on whether she could act to appoint the Government, or whether her decision would be affected by bias because of her son-in-law’s position as a Labor Minister.
In the States, similar protocols and arrangements have been put in place when needed, or exist as standing arrangements. While these arrangements have probably not gone so far as to develop into a constitutional convention to this effect, there is increasing uniformity of practice in this area.
But what if the government seeks the opinion of the Solicitor-General on the same question as the Governor-General? By allowing the Solicitor-General to advise the Governor-General, has the government just conflicted out their most senior legal adviser? If the issue that arises is simply a question of law, this shouldn’t happen, because the Solicitor-General would be able to provide the same legal opinion to both parties without risking a conflict of interest. However, if there were any facts in dispute between the parties, this may become difficult. There are also issues of confidentiality – could the Solicitor-General advise the Governor-General on a confidential basis, or would the Solicitor-General have to divulge the advice to the Attorney-General if asked?
These questions have increasingly been worked out by informal agreements and protocols between the Attorney-General, the Solicitor-General and the Governor-General, that detail when the Governor-General can seek the Solicitor-General’s advice, and under what circumstances, and particularly addressing issues of confidentiality. Such agreements have sometimes been quite complex. In one jurisdiction it was agreed that the Solicitor-General would tell the Attorney-General only that the Governor had requested his advice but not as to what. If, in the circumstances, the Attorney-General was able to pick the nature of the advice and request the same opinion, the Solicitor-General would then make the same advice available to both parties.
Whether a similar type of arrangement would have saved Whitlam from his fate is uncertain. Hocking’s account indicates that Kerr had decided to ignore the legal advice of the Solicitor-General even if he received it. This was, of course, a path that was available to him. The Solicitor-General’s advice is treated as the final word on the legal position within government by custom only. It remains advice and not a binding legal decision. The constitutional duty to exercise the reserve powers remains with the Governor-General. However, there are advantages of relying on the Solicitor-General’s advice. For one thing, it largely removes allegations of political influence that shopping around for legal advice may bring, or worse, failing to seek advice at all.
Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. She is currently a PhD candidate researching the role of the Solicitor-General in Australia.