It has long been rumoured that in addition to Chief Justice Sir Garfield Barwick, another judge advised Governor-General Sir John Kerr in the dismissal of Prime Minister Gough Whitlam on 11 November, 1975.
Sir Anthony Mason, then a closet republican, is named in a new book as the ''third man'' who secretly advised Sir John in his decision to sack the Whitlam government in 1975 reports Michael Gordon in “Revealed: the third man in the dismissal” in The Sydney Morning Herald 25 August, 2012.
At the time of the 1999 referendum, Sir Anthony revealed that he had become a republican when as an eight year old boy, he watched the 1932 -33 bodyline test cricket series. As Sir David Smith says in his book, “Head of State”, he accepted two imperial honours before revealing this.
According to Jenny Hocking’s book to be published in September, “Gough Whitlam: His Time”, Sir John Kerr's records suggest ''Mason was not merely the third man: he was, in many ways, the man''.
…reserve powers still exist…
From the extract in the Herald, Ms. Hocking seems to disapprove both of the reserve powers and of the Governor-General seeking advice without the approval of the Prime Minister.
Notwithstanding the curious claim by Senator Bob Carr that the reserve powers no longer exist, all respected constitutional lawyers agree that these are still exercisable at the discretion of the viceroy.
…G-G's right to other advice…
It is also well established that he or she may take other advice, as may The Queen, although some challenge this. I recall discussing this with a senior English judge, Lord Wilberforce, who confirmed that the Palace would seek advice from time to time. This was sought directly and not through the prime minister.
Ms. Hocking says that Sir Anthony, at the time a High Court judge, was the author of a statement incorporated in Sir John’s his public statement justifying his actions.
She adds that Sir John Kerr's records “make it clear that he wanted the extent of Sir Anthony's role to surface after his own death but while Sir Anthony was still alive, to deflect his responsibility for the deception and dismissal of Mr Whitlam.”
…The Queen and Prince Charles…
Sir John Kerr knew that if Mr. Whitlam realized he was considering dismissing him, he could move first and advise The Queen to dismiss him. The book claims that at Sir John raised this with Prince Charles in Port Moresby in September 1975.
The book records Prince Charles saying : ""But surely Sir John, the Queen should not have to accept advice that you should be recalled the very time, but this happen when you are considering having to dismiss the government".
Ms. Hocking says the Prince raised this with The Queen’s Private Secretary Sir Martin Charteris who wrote to Sir John one week before the supply crisis referring to “ the contingency to which you refer".
Hed said that while The Queen would "try to delay things" although in the end The Queen would have to take the advice of the Prime Minister.
During the 1999 referendum campaign republicans argued that their model was no different from what can happen now. They claimed the Governor-General could be dismissed immediately. In The Cane Toad Republic, I pointed to two precedents which demonstrated that this was untrue. I cited support from the leading republican constitutional lawyer, the late Professor George Winterton.
That is clearly the position today.
No errant prime minister can act as one could under the 1999 Keating Turnbull republic, who would have found it easier to sack the president than his driver.
Had we voted yes in 1999, our prime minister today would have been the only one in the world who could sack the president whenever she wished – without reasons, without notice and without appeal.