Wednesday, 11 November 2015

A Too Serious a Matter for Judges

At his ANU book-event on Tuesday night Paul Kelly maintained some of the wrath, if not ‘rage’, over ‘The Dismissal’ of 11 November 1975. There was something ‘rotten’ in Australia, Kelly declared, that sired the fell events of that day. ‘Rotten’? You mean, something bespeaking decay? Or was the constitutional calamity of ‘75 sourced not in something mortiferous in Australian life, but instead in one if its vitalities; a dysfunction functional vitality, to be sure; to wit, that active force in Australian life that seeks to make a legal object all that it surveys. Kelly’s new book The Dismissal (co-authored with Troy Bramston) provides new material for such an interpretation. The authors’ discoveries underline how utterly juristic was John Kerr’s conception of the office of Governor General. To Kerr the office he filled was a kind of super-judge, a sort of Chief Chief Justice. Thus his itch during the crisis to wrap himself tight in the counsels and ‘opinions’ of judges: the then Chief Justice, Garfield Barwick (CJ 1964-81), and a future Chief Justice, Anthony Mason (CJ 1964-81); not to mention a future Federal Court Judge, Bob Ellicott. Kerr seems to have sought and weighed their advice to the exclusion of any others. Did Kerr ever seek the counsel any of the four living former Governors-General? Paul Hasluck, Richard Casey, William Philip Sidney, and William McKell – the last of whom had experienced the trials of Australia’s Constitution in granting, (amid some controversy) a double-dissolution in the face of Senate ‘obstruction’ in 1951. Did Kerr ever seek the counsel of the one living former Prime Minister who was in political retirement, Robert Menzies? (Menzies had pungently, but privately, opposed the Senate blocking of supply in 1974). It might be replied that Kerr was seeking ‘legal advice’; but that is the rub: the office of Governor General is not a judicial position, it is an executive one. It is an odd executive position, certainly, but executive all the same; and best filled with those with executive experience in the state; former politicians and soldiers. But what need did Kerr have of such as these? He had already announced as Chief Justice of NSW that its citizens owed more to the court house than the parliament house. He was wholly beholden to a legalistic mind-set: his memoirs were entitled Matters for Judgement. Of course. Most specifically, Kerr – and thereby Australian political life – was in the thrall of the legalistic mythology of Solving Conflict By Reason; a rationalistic illusion that had been fatally fostered in Australia by Henry Bournes Higgins, and which underlay the massive halter on the Australian economy known “Arbitration and Conciliation” of which Kerr was wholly a part. (He sat on Commonwealth Industrial Court for six years). Kerr – as Kelly stresses - was a conflict-avoider, and his actions during the constitutional crisis were part of his quest to place the law In Place of Strife. It is melancholy testimony to the futility of that quest that it ended in the hatred of him by those who had appointed him, the faithless snubs of those he had appointed, and the embarrassed chill of the Crown he supposedly represented.

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