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
No encomiums in the major dailies and no detailed examination of his life and his contribution to the law and politics. At least not yet.
And here we are on November 11, of all days, a day to which Ellicott made an unfortunate contribution.
Ellicott’s legal career is regarded by his peers as distinguished – barrister, solicitor general in both the McMahon and Whitlam periods, Federal Court judge and back to the Sydney bar as an eminence gris – but not many fingerprints on anything publicly memorable, apart from his contribution to developing and expanding administrative law.
It was Ellicott’s political career that was notably colourful – if that word could accurately be applied to Malcolm Fraser’s attorney general.
Ellicott, as Opposition shadow attorney general in October 1975, came up with a legal opinion that if the Whitlam government couldn’t ensure passage of the supply bills through the senate, then governor general John Kerr should use his reserve powers to dismiss the government and install others who could secure supply.
This provided the underpinning for the Fraser’s strategy to secure the dismissal of the Whitlam government and the restoration of the Coalition to its rightful place in power.
Ellicott’s notion was that Kerr had unilateral power to dismiss government, and need not act on advice. If Whitlam could not say how and when the supply bills would be passed, then Kerr could act like George III with the prerogative to select ministers that agreed with his schemes.
Ellicott’s advice was quietly left at the Commonwealth Club in Canberra and discretely collected by one of Kerr’s aides.
The Coalition was staunchly opposed to Whitlam’s proposal for a half-senate election – and Kerr was of the same mind. After all, this was a dangerous idea because it conceivably could give Labor a window to control both houses with the prospect of an electoral redistribution.
Kerr told Whitlam in a phone call on October 21, 1975 that he thought Ellicott’s opinion was “bullshit” – which reinforced in the prime minister a belief that the GG was opposed to the use of the reserve powers.
By now Kerr was deep into “sustaining” conversations with High Court judge Sir Anthony Mason, which involved secret meetings at the home of Lady Kerr, Mason’s place in the Blue Mountains and dinners at Admiralty House.
Certainly, Fraser was using Ellicott’s advice to pressure the insecure Kerr into sacking the government.
Attorney General Ken Enderby, released advice from Sir Maurice Byres, Ellicott’s replacement as solicitor general, to the effect that even though the reserve powers of the monarch’s representative existed, there was “grave doubt” they could be used for the dissolution of parliament.
The Queen’s private secretary, Sir Martin Charteris, assured Kerr that the reserve powers should be used in a crisis.
He referred the GG to the thoughts of a Canadian constitutional lawyer, Eugene Forsey:
“If supply is refused this always makes it constitutional proper to grant a dissolution.”
Charteris told Kerr that he was keeping the Queen in the loop about what was going on in Canberra and Forsey later made it known that he supported Kerr’s actions in dismissing the government.
In any event, Kerr had the blessing of chief justice Garfield Barwick that the dismissal was quite constitutional.
Fraser agreed – of course. The agreement not to have any investigation that raked over what went on with the loans affair, and how Fraser and Ellicott manipulated the situation that led to Kerr’s actions, was entirely suitable for the conspirators.
Billy McMahon was still in the wings and was actively engaged in getting a Sydney solicitor Danny Sankey to commence a case in the Queanbeyan magistrate’s court against Whitlam, Lionel Murphy, Rex Connor and Jim Cairns.
The charge was that the former ministers conspired to deceive the government general in relation to the “loans affair”, which contravened the Commonwealth-State Financial Agreement.
Sankey’s case effectively countered the undertaking that Fraser had given Kerr about no court actions of inquiries. The High Court ultimately said the charge was bad in law and dismissed it.
The prime minister and Ellicott fell out over the Sankey case. Fraser wanted the AG to take the matter over and kill it. Ellicott thought the Commonwealth should pay the costs of all the parties, a proposal that Fraser stoutly opposed.
Ellicott resigned as attorney general, but Fraser later brought him back into the cabinet in 1977 as Minister for Home Affairs.
In his new portfolio Ellicott promptly cancelled Film Australia’s proposal to fund a movie version of David Ireland’s book, The Unknown Industrial Prisoner. It was about the dehumanisation of the employment of oil refinery workers at Botany Bay.
Under Ellicott as the nation’s film Czar there’d be no money for that sort of subversive nonsense.
The current King of Australia wrote to Kerr in March 1976 endorsing his decision to sack the government, which Prince Philip had described as “bloody socialists”. Charles told Kerr he was courageous and did the correct thing. “Please don’t lose heart.”
Vale Bob Ellicott.
Prince Charles sent a thank-you letter to John Kerr after Kerr sacked PM Whitlam:
“I appreciate what you do and admire the way you have performed. Please don’t lose heart. What you did last year was right and the courageous thing to do.” https://t.co/01j8zdDHyI @RoyalCentral pic.twitter.com/p11U2LgF9w— Peter Cronau (@PeterCronau) November 10, 2022