The judiciousness of advising the Governor-General

‘An unprecedented, extensive and unconventional relationship between a High Court judge and a governor-general during a constitutional crisis’? Really? Such was the claim made in The Australian on 28 August. Much hyperbole has been generated by the recent revelations concerning Sir Anthony Mason’s involvement in the 1975 dismissal, but for the most part it shows ignorance of the past. Not only was it not ‘unprecedented’ or ‘unconventional’ for a High Court judge to have advised a vice-regal representative on the extent of his or her powers back in 1975, but it is actually quite hard to find an occasion when judges have not been involved in advising upon the exercise of reserve powers.
The reserve powers are powers exercisable by the Governor-General or a State Governor without, or contrary to, the advice of his or her responsible Ministers. They are primarily exercised in circumstances where the Governor-General does not have ‘responsible’ advisers (eg when the Governor-General is appointing a new Prime Minister or where the Prime Minister has lost the confidence of the lower House and seeks an election or to continue to govern without confidence, in which case the Governor-General can refuse a dissolution or dismiss the Prime Minister) or where there is a breach of the rule of law (eg the Prime Minister persists in acting in breach of the law, in which case he or she may be dismissed). Although the appointment of every Prime Minister is technically an exercise of the reserve powers, it is normally uncontroversial because it is clear who has the support of a majority in the lower House. For the purposes of this post, a reference to the ‘reserve powers’ means the refusal of a dissolution, the dismissal of a government or the appointment of a Prime Minister or Premier who does not or may not hold the confidence of the House.
Excluding Lord Hopetoun’s blunder, the very first exercise of a reserve power by a Governor-General in Australia was the refusal of a dissolution to the first Labor Prime Minister, terminating Labor’s first term in office after a mere four months. Prime Minister Chris Watson had lost a crucial vote on an industrial relations bill. He had made it clear that the vote would indicate confidence in his government. He asked the Governor-General to dissolve Parliament and hold an election. The Governor-General, Lord Northcote, sought the advice of the Chief Justice of the High Court, Sir Samuel Griffith. After listening to that advice, he refused Watson a dissolution and asked Watson to stay in office until a new administration could be formed. George Reid was then asked to form a government.
In 1905 Reid’s Government was defeated on the Address in Reply, which is the equivalent of a vote of no confidence. Reid sought a dissolution but was also refused. Although it is likely that Griffith advised the Governor-General (as he did in relation to other constitutional matters), there are no documents to establish whether or not he did, leaving this the only example of the exercise of such a reserve power at the Commonwealth level in relation to which we cannot be sure that a High Court judge advised.
Certainly, Griffith advised in relation to the third exercise of the reserve powers, being the refusal of a dissolution to Fisher Government in 1909. He also advised the Governor-General on the extent of his discretion in relation to the grant of a double dissolution in 1914 and advised how the Governor-General should deal with the resignation of Fisher as Prime Minister in 1915. Edmund Barton, when a High Court Justice, was also a frequent adviser to the Governor-General. Both Barton and Griffith advised on whether a referendum could be held over conscription and also on how to deal with Prime Minister Hughes’ resignation after the second conscription referendum failed in 1917.
Interestingly, the Governor-General, Sir Ronald Munro Ferguson, took the view that Griffith and Barton were entitled to advise him because they were Privy Councillors. In England, it is the role of Privy Councillors, including members of the Judicial Committee of the Privy Council, to advise the monarch. There are formal mechanisms to give this advice, such as s 4 of the Judicial Committee Act 1833, but such advice also apparently continues to be given informally to the Queen by British judges. After Sir Samuel Griffith’s retirement, the Governor-General urged the appointment of the new Chief Justice, Sir Adrian Knox, as a Privy Councillor, in order to gain the benefit of his advice.
It is not known the extent to which Knox advised the Governor-General. It may have been the case that there was no need to do so. As the two-party system solidified and majority governments became the norm at the Commonwealth level, there was no real call on the Governor-General to exercise reserve powers and therefore little need for constitutional advice. This did not mean that High Court Justices were necessarily more circumspect in their offerings of advice. Sir John Latham, for example, advised the Prime Minister on the drafting of a referendum to overturn the High Court’s judgment in the Communist Party Case.
The next occasion for the exercise of reserve powers at the national level did not arise again until the Prime Minister, Harold Holt, went missing in 1967. The Governor-General then sought the advice of the Chief Justice, Sir Garfield Barwick, as to what to do. Having taken Barwick’s advice, the Governor-General exercised his reserve power to terminate Harold Holt’s commission as Prime Minister and appoint John McEwen as Prime Minister until a new Liberal leader could be chosen.
In the meantime, at the State level, constitutional crises still abounded and advice was regularly given to Governors by judges. In 1932 the NSW Governor received advice from the NSW Chief Justice on dismissing the Lang Government, just as in 1927 his predecessor had received the Chief Justice’s advice on his reserve powers concerning the dissolution of Parliament and the ‘swamping’ of the upper House. In 1939, the next Chief Justice of the NSW Supreme Court advised the Governor about a constitutional crisis involving the defeat of the Government on a financial measure.
In Victoria, political instability and constitutional crises extended into the 1950s. In 1952, for example, the Chief Justice of the High Court, Sir Owen Dixon, along with the Chief Justice of the Victorian Supreme Court and a puisne judge, advised the Governor about a conflict very similar to that of 1975. Labor, with the support of break-away Liberals, blocked supply in the upper House. The Governor refused the Country Party Premier an election because supply would have run out during the election period. A new Premier was commissioned, who managed to achieve the passage of supply in the upper House but was then defeated in the lower House. Sir Owen Dixon first advised the Governor to refuse a dissolution and appoint the Labor leader, John Cain, as Premier because he led the largest party in the House. The Governor, Sir Dallas Brooks, replied that Cain would not accept the premiership because he preferred to go to the election as Opposition Leader. Dixon then advised the Governor to restore the former Premier to the premiership and grant him an election, which the Governor duly did. Note that Dixon was not simply advising on the scope of the Governor’s powers, but on how they should be exercised in the political circumstances.
The Victorian Governor again called upon Dixon’s aid on 2 April 1955. John Cain had been elected Premier of Victoria, but the Labor Party had split. Cain only had supply until 30 June and a faction of the Labor Party had proclaimed that it would not vote for supply when Parliament resumed. It was most likely that when Parliament met a vote of no confidence in the Government would be passed. Cain decided he wished to keep governing until the end of June without recalling Parliament to pass the supply bills. But if he resigned then, there would still have been a significant period in which the State had no supply. Dixon advised the Governor that he should ensure that there was no interval in which the services of Government were not paid. He told Brooks to tell Cain that he would not dissolve Parliament unless supply was provided or unless the possibility of a government of some kind obtaining supply was exhausted. This effectively warned Cain that rather than being permitted to go to an election as Premier, he would be replaced and a new government formed. In these circumstances, Cain agreed to the recall of Parliament in order to face a vote of no confidence. Cain’s government was defeated, he was granted a dissolution and went to the election as Premier, at which he was defeated.
Both these supply crises and the role of the Chief Justice in advising the vice-regal representative on their resolution show distinct similarities to what occurred in 1975. Interestingly, Sir John Kerr’s personal papers in the National Archives show that he took a great interest in what had occurred during the Victorian crises.
There were other occasions when Sir Owen Dixon gave advice to the Western Australian Governor. We only know this because he left behind diaries which informed the biography of Dixon written by Philip Ayres. We also know of Griffith’s and Barton’s extensive advice because their records were left to libraries and archives and because of the work of Don Markwell in writing about them. No doubt these examples are the tip of the iceberg and that much more informal advice has been given to vice-regal officers from judges over the years. In these circumstances, advice to vice-regal officers from judges can hardly be described as unprecedented, unusual or unconventional.
Looking at Sir Anthony Mason’s informal advice to Sir John Kerr through post-1975 eyes is unfair. In the context of the time, his actions were not inconsistent with those of his predecessors or his colleagues.
The primary objection to a judge giving informal advice to a vice-regal officer on a constitutional matter is that the matter might later come before the court. This was recognised by the Justices of the NSW Supreme Court when they agreed to advise the Governor in 1856 on the transition to responsible government. The Chief Justice, Sir Alfred Stephen, writing to the Governor, Sir William Denison on 8 February 1856, observed:

It is right to remind you, that in giving our views in the capacity rather of lawyers than of judges, without argument (or the means of hearing arguments) from any party to be affected by them, we may possibly hereafter, should the same question arise in the course of any judicial proceeding, see occasion to change these views, and that it will be our duty in the event of discussion to keep our minds open to change.

The other alternative is for a judge to decline to sit on a matter upon which he or she has previously advised. It should be remembered, however, that the likelihood of the exercise of the Governor-General’s reserve power to dismiss a Prime Minister being regarded as justiciable by the High Court in 1975 was extremely low. The question of whether the double dissolution criteria had been met could have come before the Court, but it does not appear that Sir Anthony advised upon that issue.
Since 1975, there have been significant changes. Some decisions of Governors-General have become subject to judicial review (see: R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; and FAI Insurances v Winneke [1982] HCA 26; (1982) 151 CLR 342), but even now it is unlikely that the exercise of a reserve power would be regarded as justiciable. The High Court has also developed a stricter separation of powers, particularly when it comes to judges fulfilling roles that involve advising the executive, even as persona designata (see: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1). Yet all this, which we can see with the benefit of hindsight, could not have been seen in 1975.
Today, it would be unwise for a judge to advise a vice-regal representative. This has not, however, completely stopped this practice from occurring. In 1985, only ten years after the dismissal, the Victorian Governor, Sir Brian Murray, facing the prospect of dismissal from office, sought advice from the Victorian Chief Justice. The Chief Justice wisely refrained from advising but one of the other judges, Sir John Starke, who was shortly to retire, did provide advice to the Governor. Again, this is only known because of archival work. No doubt other examples also exist.
Perhaps the last word should go to the current Chief Justice of the High Court, Robert French. Taking into account the controversy surrounding the 1975 dismissal and the uncertainty concerning the justiciability of acts of the Governor-General, he concluded in his article ‘The Chief Justice and the Governor-General’ [2009] MelbULawRw 23; (2009) 33 MULR 647, at 656:

[I]t is difficult to conceive of circumstances today in which it would be necessary or appropriate for the Chief Justice to provide legal advice to the Governor-General on any course of action being contemplated by the holder of that office, whether such advice were tendered with the prior consent of the government of the day or otherwise. If, in some constitutional crisis requiring consideration of the possible exercise of reserve powers, the Governor-General felt the need to seek independent legal advice, there are plainly sources other than the Chief Justice to whom he or she could resort.