Professor Jenny Hocking – Hidden history of the Whitlam government's dismissal: Unmasking the 'third man', 16 February 2014

The following transcript is from a talk presented by Professor Jenny Hocking from the National Centre for Australian Studies – Monash University, at the National Archives of Australia in Canberra.

Thank you Louise, and I would like to thank the National Archives of Australia for inviting me here today to Speakers Corner and for giving me the opportunity to speak to you about this biography, Gough Whitlam: his Time – in which the exceptional resources of the National Archives have played such an important role.

As Louise has said, this is the third biography I've written, and it is the first about a living subject – and it is also the only one with two volumes – I say that with great relief! Gough Whitlam is particularly pleased that he now joins a select group of former Prime Ministers – Robert Menzies, Billy Hughes and Alfred Deakin – as the subject of a two-volume biography. In fact, I took a copy to him as soon as it was published and he looked at me rather hopefully and said, 'only two?'.

You might think, as I did when I first thought about writing this biography, that everything that can be written about Gough Whitlam had surely already been written. For there is simply no contemporary Australian political figure on whom more has been written than Gough Whitlam and, certainly, few governments that have stimulated such controversy, commentary and critique, as his. Yet, for all the words written about him, few have strayed from the almost obsessive focus on Whitlam's three year period as Prime Minister and his unprecedented dismissal by the Governor-General Sir John Kerr.

What do we really know about Gough Whitlam? To my generation and older, he is both the Labor Prime Minister who ended 23 years of conservative rule and the only Australian Prime Minister ever dismissed by a Governor-General. But, above all, it is 'the Dismissal' that we consider synonymous with Gough Whitlam. That simple, eponymous label, 'the Dismissal', has become; 'part of our pop culture, its established images and iconography bursting out from tea-towels to looped sound-bites ("Well may we say …"; "Kerr's cur" and "maintain your rage"). It boasts its own television mini-series, countless books, postcards, t-shirts' - and the Museum of Australian Democracy marks the dismissal on 11 November every year with one of its most popular annual events, and at times even with its own 'dismissal tour' of Old Parliament House.1

Even now, more than forty years after the election of the first Whitlam government in December 1972, the extensive, fevered, media debate and commentary that accompanies every new rendition of the circumstances of its dismissal, is nothing short of extraordinary. Never has so much been written about so little.

Because in focusing on the irresistible drama of these few years in office, Whitlam's family background, the early years in Canberra, his active war service, the parliamentary decades in opposition and the modernisation of the deeply divided Labor party and its policies, have all been largely overlooked – while his relationship with Margaret, his family and his life after politics, have scarcely rated a mention.

Let's take, just briefly Whitlam's significant connections with Canberra – he is the only Prime Minister to have spent much of his childhood here, attending Telopea Park High School and then, with great reluctance and at his father's insistence, Canberra Boys Grammar. Living in Canberra as the city took shape gave Whitlam a unique outlook on politics and government. Even more important was the easy access it gave him to politicians, public servants and judicial figures at the highest level. He recalled to me during one of our interviews that as a schoolboy he had visited Parliament and was astonished to see the former prime minister Stanley Melbourne Bruce reclining on the back benches – wearing spats! Whitlam was hooked. Politics fascinated him, not his father's style of politics, steeped in bureaucratic neutrality and caution, politics for Gough Whitlam was always about reform, about national progress, opportunity and social improvement. He thrived on the human interaction, the passion and argumentation of political parties, of parliament and ultimately of government and, after 4 years active service in the Pacific as an airforce navigator in world war II, he returned to Australia on leave in 1945 and joined the Australian Labor party.

Most important for our understanding of Whitlam's time in government is, I think, the appreciation his childhood years in Canberra gave him for the different arms of government, their separate spheres, their different but related responsibilities and a deep-seated sense of the proprieties of their office. It may sound dry, possibly even uninteresting, but this notion of political propriety, of mutual respect for and between the institutions of parliament - government, Opposition, High Court and the office of the Governor-General - is absolutely central to any analysis of the dismissal of the Whitlam government. It explains his reluctance, some would say his naivety, as newly elected Prime Minister in not replacing the senior heads of department who had been there since the era of Sir Robert Menzies and who were simply unable and in some cases unwilling to work with the first Labor government in 23 years; and it also explains his complete and absolute refusal to accept even the possibility that the Governor-General, an appointed official, could act in secret to deceive his Prime Minister, much less dismiss him and his entire government.

I quickly realised as I began this biography that, far from already being told, so much of Whitlam's life - inside and outside politics – was yet to be told. And even though I had found some extraordinary new material in Whitlam's family life for the first volume, namely that Gough Whitlam's grandfather was a convicted criminal who served 4 1/2 years in Pentridge prison,2 I never imagined that, even for one of the most closely, forensically, examined periods of our political history – the dismissal of the Whitlam government - there was still another piece of the puzzle to be found. And I found it right here in the National Archives.

I cannot stress enough how important the holdings of the National Archives were in completing this historical puzzle – for here were the private papers of Sir John Kerr, deposited some years earlier but for the most part not yet examined. And, to my astonishment, I was the first person to seek access to the most significant of these files, in the large series covering the dismissal of the Whitlam government. I sought access, and I waited. And with every newly opened file an extraordinary hidden history was also opening to me, a part of the history previously unknown, not only to us but also to its major protagonist – Gough Whitlam.

You can perhaps imagine the frisson of excitement I felt when, after several months of anticipation waiting for access to be determined, I opened one particular file in the private papers of Sir John Kerr and read these words:

if this document is found among my archives, it will mean that my final decision is that truth must prevail, and, as he played a most significant part in my thinking at that critical time, and as he will be in the shades of history when this is read, his role should be known.

This was the key file from Kerr's private papers describing the extensive, secret, role of 'the third man', Sir Anthony Mason in Kerr's deliberations and the dismissal.3 It is headed 'Conversation with Sir Anthony Mason During October-November 1975'. Its title is as misleading as its author. For the single 'conversation' it refers to was in fact a series of secret meetings between Kerr and Mason, in person and by telephone, stretching back to August 1975 – some two months before supply was even blocked in the Senate. In this 12 page record of what Kerr called a 'rolling conversation' with Mason, he describes their lengthy deliberations during which they canvassed the dismissal of the Prime Minister, disregarded the Solicitor-General and Attorney-General's joint opinion on the Governor-General's powers, considered the wording of the letter of dismissal – a draft of which Mason himself wrote - and between themselves determined at what point to bring the unsuspecting Chief Justice of the High Court, Sir Garfield Barwick into their planning.

This detailed record from Kerr's private papers has been described as 'a discovery of historical importance' and it is without doubt the most important material to emerge about the dismissal in 37 years.4 Firstly, it confirmed from Kerr and then Mason himself what had been widely speculated for decades, that Sir Anthony Mason was the 'third man' - along with Sir John Kerr and the Chief Justice of the High Court Sir Garfield Barwick - in the back-room manoeuvring that led to the dismissal of the Whitlam government; second, this new material revealed the full extent of Mason's role– which had previously been seen as minor - in Sir John's Kerr's thinking and planning and in the dismissal itself; and finally, the publication of this new material precipitated the release of a public statement from Sir Anthony Mason acknowledging his role for the first time, which in turn brought further revelations of its own.5

These revelations, appearing decades after the events they describe, also remind us that, even for an episode as widely and as heatedly debated as the dismissal, and despite the extraordinary number of works written about it, so much can still remain forgotten, hidden or just plain wrong. For the history of the Whitlam government, and of the dismissal of the Whitlam government, is neither straightforward nor settled. In many ways this has been not so much a forgotten history, as a deliberately and deceptively hidden one.

The location of this material was the culmination of years of research I had undertaken here at the Archives. And, I have to say that, having spent so much time working through Kerr's papers, it is also abundantly clear to me that Sir John Kerr was a deeply damaged and devastated man. It is hardly new to remark upon Kerr's personal frailties, his weaknesses and his need for validation. But what is surely tragic, is the extent to which John Kerr's own actions, his best known actions in dismissing the Whitlam government, also destroyed him. It makes salutary reading to see that years after the events of 1975, in his private journal in his own sloping hand, Kerr was still obsessively revisiting every day of that critical month, reinterpreting every conversation, recalling every exchange, desperately seeking some resolution - ultimately for himself.

Gough Whitlam put it rather more prosaically; 'Kerr rooted himself as well as us!'.

For 37 years Sir Anthony Mason had maintained his silence about his role in Kerr's deliberations, refusing to comment publicly on anything to do with the dismissal despite Sir John Kerr's repeated pleas that he do so – and indeed despite my pleas that he do so.
I interviewed Sir Anthony Mason twice as research for this book, and although we had a delightful discussion on each occasion, he steadfastly refused to discuss the one thing that I particularly wanted him to – his conversations with Sir John Kerr prior to the dismissal of the Whitlam government. Although I urged him to speak – even pleading that he do so 'in the interests of history' - his only response was a terse, 'I owe history nothing'.

For a man who has spent much of his career in positions of the highest public office, and with expectations of accountability and impartiality, I find this attitude deeply troubling to say the least.

The full story of Anthony Mason's role has been made up of a series of intermittent, intriguing, glimpses emerging over several decades. Mason's name had first been raised in relation to the dismissal following the publication of Sir John Kerr's memoirs in 1978, in which Kerr alluded cryptically to 'conversation with one person only other than the Chief Justice' prior to his dismissal of Gough Whitlam. It was not until after Kerr's death however, that Sir Garfield Barwick revealed that he had shown a copy of the advice he had prepared for Kerr to his fellow justice, Sir Anthony Mason. But it was not clear at this stage whether Kerr and Barwick were referring to the same person, and there was not yet any indication of just how extensive his role had been. Gerard Henderson soon described Mason in a newspaper article as 'the third man', as the person named by Kerr as having had a 'conversation' with him at that time.6

Mason remained tagged 'the third man' from that point on, seen as a bit player in the drama played out by the Governor-General and his maligned side-kick, the Chief Justice, Sir Garfield Barwick.

There was no suggestion then that Mason had played the immensely significant role we now understand him to have, and Mason's precise role in Kerr's planning, thinking and actions in dismissing Whitlam would remain hidden for nearly 40 years. Barwick moreover knew nothing of the secret meetings between Mason and Kerr in the months leading up to his formal opinion being sought by Kerr. And I think Barwick's role in the dismissal must now be reassessed, for these revelations show that Barwick has been badly served by history. The Chief Justice has long been cast as the secret force behind Sir John Kerr, a role perhaps now more appropriately attributed to Sir Anthony Mason.

It is now clear that as he moved towards dismissing Whitlam, Kerr's planning was more lengthy, more extensive and more deceptive than previously imagined. There can simply no longer be any question that Sir John Kerr deceived his Prime Minister. At several critical points in this journey 'the third man', the sitting High Court justice Sir Anthony Mason, was intimately involved.

Sir Anthony Mason and the Governor-General's 'tutorials'
Kerr had been Governor-General for barely 8 months when he approached the Vice-Chancellor of the ANU with a quite extraordinary request. He was seeking confidential guidance from esteemed members of the Law School on the extent of his powers and possible 'constitutional problems'. Sir Anthony Mason as a long-standing close friend and a Pro-Chancellor of the ANU, drove the discussions with Kerr and the University about the establishment of this select group. Like so much of Kerr's activities over that time, the meetings were arranged in secret and without reference to the Prime Minister's office. Whitlam simply had no idea that his newly appointed, hand-picked Governor-General, was so uncertain of his own role that he needed a select group of personal advisors to run what the Professor of Law, Geoffrey Sawer called, somewhat disparagingly, 'the Governor-General's tutorials'. Whitlam's head of department, John Menadue, described it to me as 'improper in the extreme'.7 This was the first element in Mason's previously unknown dealings with Sir John Kerr during the term of the Whitlam government, found in Kerr's private papers and confirmed by material in Geoffrey Sawer's manuscripts in the National Library, and published in Gough Whitlam: His Time.8

In the months leading up to the dismissal, Mason's role as confidante and counsel for the Governor-General was critical. They began their lengthy discussions just as the Governor-General's tutorial's were being wound up by nervous ANU staff – not in October as Kerr claimed, but in August 1975 - when the supply crisis was still two months off. Over the next 3 months as Supply was blocked and Kerr moved ineluctably toward dismissing Whitlam, the two men met in secret – at Yarralumla, at Admiralty House, at Lady Kerr's North Sydney house – and speaking by telephone when meetings in person were not possible. They canvassed options, strategies, considered the extent of Kerr's discretionary powers and the possibility of dismissal – as Kerr put it, 'to fortify myself for the action I was going to take'. Their meetings were not recorded in the Vice-Regal notices and they went to some lengths to meet without Whitlam's knowledge, at one point even changing their venue to Lady Kerr's North Sydney house to avoid being seen by the Prime Minister, who was that day at Kirribilli House, next door to the Governor-General's Sydney residence.9

Barely two days after these revelations were published in Gough Whitlam: His Time, Mason broke his silence with a written statement in response, acknowledging for the first time in 37 years his role in the dismissal of the Whitlam government, and adding further to it. Mason did not dispute the substance of Kerr's archival record of their meetings, but states repeatedly that he did not 'encourage Sir John to dismiss Whitlam'. Nevertheless, there is one important difference between their accounts. Mason claims that he insisted to Kerr that, 'as a matter of fairness' Whitlam should be given 'the option of holding a general election'. Mason writes that he told Kerr, 'that he should warn the Prime Minister that, if he did not agree to hold a general election, his commission would be terminated.'  In other words, that the Governor-General should first warn the Prime Minister of his intentions. This of course is precisely what Kerr refused to do, citing his concern for his own position as Governor-General – that he himself might be dismissed - in dismissing Whitlam without warning.

Had Kerr taken Mason's advice on this and warned Whitlam, the fury that many still feel about the dismissal may well have been ameliorated. Much of the passionate response was generated by the sense of 'ambush', by the fundamental unfairness in the fact that Kerr had given Whitlam no warning. At the very least, and as Mason now argues, Kerr should have given Whitlam the option to hold an election for the House of Representatives and go to that election as Prime Minister, or face dismissal. Mason claims he cautioned Kerr that, by failing to warn Whitlam, he 'would run the risk that people would accuse him of being deceptive'. Kerr's notes on their meetings, written in late October 1975, with additional comments made in 1981, makes no mention of this caution.10

Mason's statement left no doubt about his direct involvement not only in Kerr's thinking, but in his actions in dismissing Whitlam – for it included the extraordinary yet almost casual observation that Mason had drafted a letter dismissing Gough Whitlam, at Kerr's request. It is this remarkable fact of his assistance with the preparation of the key dismissal document that has left many people, myself included, utterly bewildered by Mason's simultaneous claim that he did not 'encourage Sir John to dismiss Whitlam'. If there was ever any doubt as to Mason's view at that point, I would have thought drafting the letter of dismissal was a rather significant clue!

Even according to Mason's own version, the only possible conclusion is that he was implicated in Kerr's dismissal of Whitlam – and Mason knew, from 9 November 1975, that Whitlam was to be dismissed.

But Mason's role in the events of 11 November 1975 did not end with the dismissal itself, and we now know that he played a critical role in Kerr's response to events in the House of Representatives, following the final session of the House as parliament resumed sitting after lunch. This parliamentary sitting on the afternoon of 11 November 1975, makes for a rare engrossing reading of Hansard and is another fascinating, yet forgotten, part of the history of the dismissal. For two hours the House was pitched in an enthralling, epic struggle – a struggle by Whitlam to regain office and by Malcolm Fraser to retain office - culminating in what I have called John Kerr's 'second dismissal', the dismissal of the parliament itself. And I will return to this final role later.

It is almost impossible for us to imagine this today, but Whitlam had arrived at Parliament House early on 11 November 1975, believing that the parliamentary crisis was over. He had decided to call a half-Senate election, to be announced to the Parliament that afternoon. Several parliamentarians, journalists and public servants I interviewed described the sense of relief, bordering on exhilaration, they had felt that morning - the stalemate in the Senate would now be over. Political events quickly moved on and by midday the Canberra news bulletins were confidently reporting that there was to be a half-Senate election on 13 December.11 The Supply crisis was already yesterday's news.

Now this is a crucial element in the forgotten history of that day - Whitlam's decision to call a half-Senate election. It is astonishing that for all the thousands of words written about the dismissal, this simple fact, that Whitlam had decided to end the stalemate in the Senate and to call the half-Senate election, is seldom mentioned. Most importantly for any analysis of the dismissal is the further fact that Sir John Kerr had been fully apprised of Whitlam's intention. The necessary documents for calling the half-Senate election had been drafted, schedules and dates for the election and for the writs had been set – and the Governor-General was well aware of this.

On 6 November Whitlam had told Kerr that he would hold the half-Senate election on 13 December, and that the final paperwork would be prepared and sent to him over the coming days. Kerr received a draft copy of Whitlam's letter advising the half-Senate election on 7 November, 4 days before the dismissal. Whitlam also told Kerr that he would call on him on 11 November with the formal letter of advice to set the half Senate election in train. At no stage during these formal exchanges did the Governor-General indicate that he would in any way dispute, much less reject, Whitlam's decision.

On the morning of 11 November, Whitlam telephoned Kerr and arranged to see him as soon as the morning session of parliament had ended, to deliver the formal letter advising the half-Senate election that he had first confirmed with him nearly a week earlier. This is the source of Whitlam's insistent complaint that he was 'ambushed' by Kerr. Only Whitlam's overweening sense of institutional propriety had prevented him from announcing the half-Senate election in the Parliament before his appointment with Kerr at 1 o'clock. His short speech to the House of Representatives announcing the half-Senate election had been written, but would never be read. A copy of it is here in the Archives.

The story of the dismissal itself in the Governor-General's study has been told countless times. On entering Kerr's study, and (most significantly) before Whitlam had handed Kerr his letter advising the half-Senate election, the Governor-General handed Whitlam a letter of his own, dismissing him and his entire government. It read: 'I hereby determine your appointment as my chief adviser and head of the government. It follows that I also hereby determine the appointments of all the ministers in your government'.12 Whitlam later described it as the greatest shock he had ever experienced. 'We will all have to live with this', Kerr said. 'You certainly will', Whitlam replied, before shaking Kerr's hand and leaving.

His first instinct was to call his wife Margaret who was then in Sydney; 'I've been sacked', he said bluntly. 'What do you mean?', she said, 'He can't sack you, you're the Prime Minister!'. How different our history might have been had Whitlam heeded Margaret's fiery advice that afternoon; 'You should have slapped his face and told him to pull himself together!'

There is one critical point to remember here, that in this vital hour after his dismissal as Whitlam gathered his thoughts and his colleagues at the Lodge liked 'stunned mullets' as Graham Freudenberg described them, and that is – that Whitlam did not know that Malcolm Fraser was already Prime Minister. Everything that followed in both Houses of parliament that afternoon needs to be seen in the light of the insurmountable disadvantage of ignorance that Whitlam faced as he tried to unravel Kerr's actions. Whitlam simply had no idea that when he had first arrived at Yarralumla, in order he thought to call the half-Senate election, the Leader of the Opposition Malcolm Fraser was already there, secreted with the Governor-General's official secretary David Smith in a small ante-room at the other end of the corridor while Whitlam was being dismissed, and soon to be appointed Prime Minister himself.

Whitlam's thoughts at this time, in a state of intense shock, were entirely tactical, and entirely focussed on the House of Representatives. As far as he was concerned the Labor Senators already had their instructions—to pass the Supply Bills— his task was to secure the confidence of the House of Representatives and to again form government. At the lodge he set about drafting a motion that he believed would see him reinstated as Prime Minister that afternoon.

The House of Representatives resumed at 2 o'clock and for the next 2 hours it sat more or less in continual uproar. The atmosphere was electric. After half an hour of chaos and confusion, to a packed public gallery filled with people leaning dangerously over the balustrade, crying, outraged, an amended censure motion, now against the Member for Wannon, Malcolm Fraser - was passed by 7 votes. It was the first of several motions against Fraser passed by the House that afternoon.

At 3 p.m., Gough Whitlam finally rose to speak. With the shock of hearing Fraser announce that he was already Prime Minister, Whitlam had scrapped the motion he had painstakingly prepared at The Lodge and now literally had to think on his feet. He moved a simple motion of no confidence in Fraser, the member for Wannon, as Prime Minister, expressing its 'want of confidence' in the putative Prime Minister and requesting the Speaker to advise the Governor-General to call on Whitlam as the leader with the confidence of the House to again form government:

 'That this House expresses its want of confidence in the Prime Minister [Fraser] and requests Mr Speaker forthwith to advise His Excellency the Governor-General to call on the honourable member for Werriwa [Whitlam] to form a government.'

The no confidence motion in Malcolm Fraser as Prime Minister was carried by 10 votes, and the Speaker was sent to Yarralumla, to call on the Governor-General and advise him to restore the Whitlam government to office.

At this point Kerr's actions in dismissing Whitlam would have, and should have, unravelled. Kerr would reinstate Whitlam as Prime Minister, being the leader holding the confidence of the House of Representatives, and now with his budget passed, since the Senate had finally passed the Appropriation bills that had sat in limbo for the preceding month. It may seem astonishing now, but Whitlam fully believed that at this point he would be recommissioned as Prime Minister and his government restored to office. He rang Margaret again, sounding confident that this would be 'put right' – that he would be back in office within an hour, and told her not to come to Canberra, that all would be well. To her lasting regret, Margaret remained in Sydney and did not see Gough at all on 11 November 1975, the day his political career effectively ended.

Meanwhile, the Speaker was headed for Yarralumla, to convey the motion of no confidence in Fraser to the Governor-General. None of them had anticipated what then took place. Kerr simply refused to see the Speaker, or to receive the motion of no confidence in Malcolm Fraser. Instead, Kerr kept the Speaker waiting for more than an hour until after he had dissolved both Houses of Parliament and closed down the parliament, with Malcolm Fraser still in office. The doors of the House of Representatives were closed and sealed, with copies of the proclamation dissolving the parliament taped across them. The House of Representatives, scheduled to reconvene at 5.30pm, would not meet again.

This was Sir John Kerr's second dismissal on the 11th November 1975, the dismissal of the parliament itself. Even more remarkable is that in this sequence of events, so long overlooked in the history, we see again the critical involvement of 'the third man', Sir Anthony Mason, during the final hours of the parliamentary session of 11 November 1975. Mason's final involvement in Kerr's actions that day had remained secret for 37 years until the release of Mason's own statement, soon after the publication of Gough Whitlam: His Time, which further elaborated his now greatly expanded role. Mason recalls that after the dramatic post-dismissal afternoon parliamentary session, Kerr made one final and crucial telephone call to him, - and it is interesting to note that Kerr makes no mention of this final conversation with Mason in his own account of these events. The Governor-General was concerned, with a rather belated nod to parliamentary propriety, that the Speaker wanted to see him, to convey the resolution just passed by the House of Representatives expressing no confidence in the Fraser government and calling for the reinstatement of Whitlam as Prime Minister.

Sir Anthony Mason's response to Kerr's quandary posed by the House of Representatives' motion of no confidence in Fraser was simple – he told the Governor-General that 'the resolution [of the House of Representatives] was irrelevant as he had commissioned Mr Fraser to form a caretaker government'. Mason's advice was a breathtaking repudiation of the very essence of the Westminster system and its core convention of responsible government - that governments are made and unmade on the floor of the House of Representatives – where our decision as electors is translated into government.

In the 45 minutes since Fraser's announcement that the Governor-General had appointed him Prime Minister, he had lost five motions in the House of Representatives, including a motion of no confidence by ten votes. The assault on responsible government through the continuation of Fraser in office, despite the want of confidence motion against him, was absolute.

So, a justice of the High Court, Sir Anthony Mason, told the Governor-General that the single most important resolution the House of Representatives can ever make – the resolution by which governments are made and unmade, a vote of confidence or lack of it – was irrelevant. The parliament's determination of the formation of government, its decision on who was to lead that government, was to be ignored in favour of his, and the Governor-General's, own. It was, as Mungo MacCallum described it, 'a reassertion of the divine right of kings'.13 Mason had already refuted the advice of the Government's official legal advisors, had met in secret with Kerr in defiance of the Prime Minister's advice to the Governor-General, he had even drafted a letter dismissing Whitlam from office, and now he refuted the most significant resolution of the House. And yet, Mason says most strenuously, that he did not advise Kerr and he did not encourage him to dismiss Whitlam.14

Reflecting on Mason's almost surreal denial of his own responsibility, Richard Ackland drily observed that; 'Judicial activism has rarely seen such unbridled meddling in the democratic political process'.15

This was Mason's final role – one that he had kept determinedly hidden until his reluctant release of his statement following the revelations in this book. Kerr's papers show that for years after the dismissal he desperately wanted Mason's role to be known, pressing him repeatedly to reveal his role in order to provide, as the Chief Justice Garfield Barwick had, public support from judicial office for his actions in dismissing Whitlam. 'I should have dearly liked to have had the public evidence during my lifetime of what Mason had said and done … [but] he would be happier … if history never came to know of his role', Kerr wrote.16

Mason however, would have none of it, refusing to allow his name to be put in the public domain and refusing my attempts to discuss this with him – snapping, as I said earlier, 'I owe history nothing'. It is at once a marvellous and a dreadful response, a precise encapsulation of the arrogant assumption of personal power in public office and a rejection of the essential respect between the arms of government, without which democratic institutions cannot function.

Mason's continued silence has been seen as self-serving, as ensuring the continued public ignorance of his role in the dismissal of the Whitlam government. And there is no doubt that his silence had worked to his own benefit, for it is simply inconceivable that the Hawke labor government would have appointed Mason Chief Justice of the High Court in 1987 had it known the full story of his involvement with Kerr in dismissing the Whitlam government. Gareth Evans for instance, while not directly involved in the appointment of Sir Anthony Mason as Chief Justice in 1987, doubted whether it would have been made; 'Had this material, which goes much further than anything previously known about his role, been on the record in 1987, I think the government would certainly have thought long and hard about appointing Sir Anthony Mason as chief justice'.17 Whitlam's own Attorney-General, Kep Enderby, described the secret interactions between Kerr and Mason as 'extraordinary' and 'scandalous'; Kerr 'should have consulted me as attorney-general and [Maurice] Byers as solicitor-general', he said.18 And in many ways this angry riposte points to the contest that lay at the heart of the dismissal – the contest between political and executive power – and to the lasting bitterness at its imperfect resolution.

These further details about Mason's role only came to light with the publication of my biography of Whitlam and with the revelations from Mason himself that followed – and the revelations continue to this day. Just this week I read another set of letters between Sir John Kerr and Sir Garfield Barwick which reveal their determination to keep Mason's involvement secret, at least until after their deaths. All parties accepted the need to protect Sir Anthony Mason – then a rising figure on the High Court bench - from the opprobrium that Kerr and Barwick had undoubtedly faced for their actions in dismissing Whitlam.

On the fifth anniversary of the dismissal, 11 November 1982, Sir Garfield Barwick wrote to Kerr reminiscing about their actions and about Sir Anthony Mason's, then presumed limited, role; 'I am not minded … to disclose my conversation with Mason, [Barwick wrote] nor with you in connection with what Mason thought. … I feel strongly that the younger man should not be involved'. Kerr replied in hesitant agreement; 'I feel with you that "the younger man should not be involved". I have no desire to bring forward Mason's name, certainly not at this stage, though I feel that it may be desirable, before the history is finally written, for it to be known what he actually believed, but not until after our deaths'.19 Kerr of course was being disingenuous to the end. Contrary to what he claimed in this later letter to Barwick, he had every desire to bring forward Mason's name. Indeed Kerr left his detailed record in the National Archives precisely in order to do so, despite his promise to Mason. For this final breach of faith we should perhaps be grateful to Sir john Kerr. For without it, the full story of 'the third man' would still be lost to history.

1: Hocking, J. 'Introduction: History by Numbers' in Nolan, S. (ed) The Dismissal: Where Were You on November 11 1975? MUP. Carlton. 2005 :2

2: Hocking, J. Gough Whitlam: A Moment in History MUP. Carlton. 2009 :12-14

3: Kerr, J. 'Conversation with Sir Anthony Mason During October-November 1975' Private and Confidential Papers of Sir John Kerr Relating to the Constitutional Crisis of 1975 NAA M4523 1 Part 14

4:The Australian 'Editorial: The governor-general, the judge and the dismissal' 28 August 2012

5: Mason, A. 'Statement' Canberra Times 27 August 2012 :9-11

6: Henderson, G. 'Kerr's matter of sound judgment' Sydney Morning Herald 8 January 1994

7: Private communication with the author, 15 June 2012

8: Hocking, J. Gough Whitlam: His Time :305

9: Mason, A. 'Statement' Canberra Times 27 August 2012 :9-11

10: Kerr, J. 'Conversation with Sir Anthony Mason During October-November 1975' Private and Confidential Papers of Sir John Kerr Relating to the Constitutional Crisis of 1975 NAA M4523 1 Part 14

11: Fraser, A. 'The Extraordinary Day' Quadrant December 1975 :4-18; :4. In Hocking, J. Gough Whitlam: His Time MUP. Carlton. 2012 :324

12: Kerr, 'Letter of Dismissal from Governor-General Sir John Kerr to the Prime Minister, the Honourable Edward Gough Whitlam', 11 November 1975, Whitlam Institute e-collection.

13: MacCallum, M. 'The Dismissal: an uncorrected throwback to tyranny' The Drum 3 September 2012

14: Mason, A. 'Statement' Canberra Times 27 August 2012 :9-11

15: Ackland, R. 'With nod (and wink) to past, it's more fodder for maintaining the rage' Sydney Morning Herald 31 August 2012 :13

16: Kerr, J. 'Conversation with Sir Anthony Mason During October-November 1975' Private and Confidential Papers of Sir John Kerr Relating to the Constitutional Crisis of 1975 NAA M4523 1 Part 14

17:The Australian 31 August 2012

18:The Australian 27 August 2012 :3

19: Letter, Barwick, G. to Kerr, J. 11 November 1982; Kerr, J. to Barwick, G. 22 November 1982 NAA M4526 4 Part 1

Copyright National Archives of Australia 2016