RIP Bob Ellicott ... Former solicitor general, MP, attorney general and judge ... Contention dogged his political career ... "Bullshit" advice about the governor general's power to remove a government ... In the thick of November 11, 1975  COMMENT: EMAIL: URL: A little less than balanced Justinian. Let’s not forget Ellicott’s efforts for the Whitlam Government as S-G including before the International Court of Justice not to mention wider interests like the Australian Institute of Sport. Life could have been very different had Charles been made Governor-General and Ellicott Chief Justice of Australia. He was good on his feet in court well into his 70s and little has been said to cast doubt on his time as a A-G and a Federal Court judge.

A dip into Anne Twomey’s velvet thingameejig book shows a wealth of precedent for Kerr and Barwick which the mainly Whitlamist 75-ophiles would prefer to ignore. Neither God nor Gough can govern without dough and if the Senate can withhold it (directly or indirectly) then maybe (by chosen hook or vice regal crook) He or he has to go. A half Senate election was never going to cut the mustard even if State Governors issued writs.

Of course, as Mason and Cutler claim to have urged, Kerr should have warned Whitlam. Kerr shouldn’t have been paranoid, boozy and financially insecure. Speaking of which Whitlam should have opened his cheque book to Sir Paul Hasluck so the ailing Lady Hasluck could have remained at Yarralumla. Whitlam had the Senate under effective control at more than one point but flubbed it. Such flaws and oversights pepper history and could have made a difference. But none is illegal nor can they be placed at Ellicott’s door.

Ellicott was far less close to Barwick than is sometimes supposed (although they were not unfriendly). Please please Justinian - your mischievous streak has long been welcome. But it would be unbecoming to become just another blinkered leftist blatherer. We know how much better you are. COMMENT: Ellicott’s name is misspelled as Elliott no less than three times. COMMENT: Given that John Kerr was a chronic alcoholic - and that is just a statement of fact - how, objectively speaking, can any of Kerr’s defenders argue that he was capable of exercising the sound judgment required of a Governor General in the invidious position in which Kerr was placed. It was a time of political hysteria and very influential lawyers, with whom Kerr practiced as a barrister and then communicated with as a Judge, went out of their way to influence him. Principally, I’m referring to Barwick, Mason and Ellicott - all from NSW, as was Kerr. But Henry Winneke et al intervened behind the scenes as well. Kerr was not emotionally or psychologically capable of resisting any of them. And, by the way, my intuitive judgment is that there is real cause to be skeptical about Mason’s claim that he advised Kerr to warn Whitlam. Let’s face it, Mason was acting as Barwick’s “junior counsel”, in the whole exercise. Barwick would never have advised that such a warning be given. He was too cunning and self possessed for that! COMMENT: And the fact that, on any view, Mason was the better lawyer and the superior jurist does not mean that he wouldn’t have done Barwick’s bidding. Barwick was a powerful barrister and a force of nature and, importantly, Mason was junior to him at the NSW Bar and on the High Court. Res Ipsa Loquitur! COMMENT: EMAIL: URL: “On any view” is pushing it. Barwick was the best and, to say the least of it, Mason was early in his judicial career at the time. Barwick thought Gough had to go and Kerr was not obliged to warn him. Even Prof Twomey says Kerr was not obliged although Cutler (and I seem to recall) Winneke say they would have chosen to do so. There wasn’t much contact between Barwick and Mason except in relation to Barwick’s letter of advice. Nor was there much contact between Barwick and Kerr aside from the letter (significant though it was). Barwick thought little of Kerr and might have agreed with much of your assessment. But it’s just simplistic to paint Barwick as the evil puppet master. He had a firm view and performed a limited role, about which he was quite open (right down to having his meeting with Kerr in the vice regal notices and sharing or discussing his opinion with fellow Justices and the press). COMMENT: I’m afraid that we will have to disagree about Barwick. Obviously he was a gifted lawyer but I think Mason was the better jurist. But that’s only my opinion. Why is any HCA Justice entitled to think that they can give advice, especially secret advice,to the GG? There is nothing in the Constitution that, explicitly or implicitly, permits that. The Justices are appointed to sit on the Court and deliver judgments after hearing applications and appeals. And, in real terms, Barwick’s position was compromised by the fact that he was a former federal LNP AG, albeit one who had mixed success in that role. He was also a very headstrong person who never took a backward step in his life! Further, the Monarch and his or her Vice Regal representative should be open and candid with the PM. All Kerr had to say to Whitlam was that he would have to replace him if and when it became clear that the federal government was about to run out of money. Instead of doing that Kerr deliberately misled Whitlam. Had Kerr been open with Whitlam it is conjecture as to whether Whitlam would have asked the Queen to sack Kerr or, if he made that request, that the Queen would have unhesitatingly accepted it. Incidentally the tone and content of your last post suggests that you knew Barwick well. Was that so? COMMENT: EMAIL: URL: Sadly not though the record reveals much without personal acquaintance. French CJ has said the advisory role would never again occur, although Twomey’s book contains a raft of historical precedents. Perhaps it was less obviously inappropriate in Barwick’s day.

Leaving aside legal obligation, many in Kerr’s position would have consulted Whitlam, at least giving him the chance to go to the election as Prime Minister. Whitlam should have had a worst case plan to block Supply to Fraser so he might have to return his commission to the Governor-General (much as Sir William Lyne once did).

Whitlam himself says in Abiding Interests that if Kerr had thought about it, the lengthy process of getting Buckingham Palace to “decommission” Sir Colin Hannah as Administrator of the Commonwealth revealed the difficulty Whitlam would have faced in sacking Kerr. And Kerr should have been willing to take that risk without regard to personal, especially financial, concerns. Whitlam would have looked pretty silly in that event.

David Marr has said something like Barwick’s great gift as an advocate was to make the outrageous sound like plain old fashioned common sense. Barwick said in a radio interview now on YouTube that a government needs supply, the Senate can deny supply and if the government can’t get supply it has to go! To some that may not just sound like but actually be common sense.

Perhaps we will never again have to find out. Prince Charles’s letter was maybe a little unwise though understandable because he felt so sorry for Kerr. Let’s hope he would still bring an open mind to such problems as King. COMMENT: Guthrie - I assume that is the first name in your nom de plume - I think that we are close to reaching the end point of our dialogue. Since we started I’ve consulted a number of literary and media sources, that include Barwick and Mason, who speak and write about Barwick’s involvement in the Dismissal. One thing is now clear to me. Most males, including you, focus on Barwick’s intellect (which was considerable) and pay little or no attention to his personal psychology. It is the latter that is the real key to properly understanding what Barwick did and why he did it. I suspect that, like many very gifted barristers, he was a very clever, indeed brilliant, psychopath. I suggest you consult the medical literature about the meaning of that psychological type. Professor Kevin Dutton of Oxford has written extensively about it. Barwick decided, as a private citizen, that Whitlam and his government had to go AND he set out, in his trademark way, to achieve that. He succeeded. Kerr was, in substance though not in form, his puppet. Does that make Barwick an “evil puppet master” - your description, not mine? Not necessarily, but one thing is clear, to me at least. Without Barwick, Kerr probably would’ve had a much harder job sacking Whitlam. And Barwick was determined to secure the dismissal of Whitlam and his government. No Judge, especially of the HCA or any other court, is entitled to arrogate to himself the function and entitlement of removing a government from office and then, as Barwick later did, claim that he was acting in support of and furtherance of parliamentary democracy. Lol. Barwick did what he often did in his life - he behaved like a forcing current to get his own way. Bit fascistic or dictatorial don’t you think?
On a lighter note, Barwick was a short man. Google short men and James Bond. Ian Fleming was surely on the money! COMMENT: EMAIL: URL: Yes quite! And I was just beginning to enjoy myself! I consider you have seriously misjudged Sir Garfield (not to mention most men, short or otherwise). You are not the first I have so perceived. I should add I write as Sir Guthrie’s brother Godfrey. I wonder if Kevin is related to Peter? Might there have been more for his clinical gaze to ponder in Whitlam than Barwick? COMMENT: Guthrie or Grant or, is it, Richard?, have a read of this article.