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THE HON CHIEF JUSTICE ROBERT FRENCH AC[*]
It would be something of an exaggeration to describe law reviews as the only
drivers of intellectual discourse about law, justice
and the legal system. In
fact, they have been rather harshly treated in the past in the United States and
in Australia. Fred Rodell’s
famous denunciation ‘Goodbye to Law
Reviews’ was published in 1936 in the Virginia Law
Review[1] and in 1999 in the
Australian Law
Journal.[2] His paper,
bolstered in the Australian Law Journal by some like-minded
sentiments from John Gava, included laments about bad writing, mediocrity and
lack of humour. As to the last,
he observed: ‘The best way to get a laugh
out of a law review is to take a couple of drinks and then read an article, any
article,
aloud. That can be really
funny.’[3]
On the other hand,
a defence and some praise was offered by Justice Kirby in 2002 in his piece
‘Welcome to Law Reviews’
published in this University’s
Law Review. He said:
Law reviews can have a value that transcends even the work of the High Court of Australia. They must criticise, cajole and analyse the law. They must question received wisdom and current orthodoxy. Authors must remain free to follow their own star, wherever it may lead. A judge cannot always do this, for a judge is controlled by the Constitution, and often by legislation or binding judicial authority.[4]
The discourse of legal scholarship is conducted at many levels. Indeed, even
within Australia the number of generalist and specialist
law journals,
monographs, essay collections and the like is remarkable and has grown
significantly in recent years. The Constitutional Law and
Policy Review edited by the late Professor George Winterton
demonstrated that high quality legal writing can even be found in a publication
that
looks like a newsletter.
Acknowledging the diversity of the outlets for
legal writing, the best of the articles in the best of the university law
reviews have
been significant vehicles for the development of legal scholarship
and, in that connection, the Melbourne University Law
Review is an outstanding contributor. No doubt it is a matter of
considerable satisfaction to a law student at this University to have the
opportunity of participating in the selection and editing of articles submitted
for publication. Tonight, you properly celebrate
your Review and the
participation of many of you in it. It is, however, not necessary to speak at
length on its virtues to this audience. Having
been given the freedom to choose
my topic, I thought it might be of interest to some of you if I were to reflect
a little upon the
role of the Chief Justice in relation to the tendering of
advice to the Governor-General.
Events surrounding the provision of judicial advice to the holders of
vice-regal office have commonly been associated with a degree
of public
controversy. The level of controversy about the dismissal of the Whitlam
government by Sir John Kerr in 1975, following
advice from former Chief Justice
Barwick, was, to put it mildly, substantial. This is not the occasion to fan the
embers of old passions
by commenting upon the rights and wrongs of decisions
taken by the Governors-General and Chief Justices or, earlier in
Australia’s
history, by colonial or state Chief Justices advising
Governors. Their decisions were shaped by the perspectives of their times.
It is
difficult at our remove to define a reliable framework for judgement about them.
That does not prevent reflection upon history
and upon the principles which
might guide choices today.
Prior to Federation it was not uncommon for a
colonial Governor to seek advice from the Chief Justice of the Colony. An early
example
occurred in 1808 when Governor Bligh relied upon legal advice from
convict attorney George Crossley and Judge Advocate Richard Atkins,
who was the
chief judicial officer of the
Colony.[5]
It was the time of the ‘Rum Rebellion’. The Court of Criminal
Jurisdiction, which was to try John Macarthur, refused
to sit with Atkins even
though the relevant statute required that the constitution of the Court include
the Judge Advocate.[6] Atkins
recommended to the Governor that the members of the Court be charged with
treasonable practices. He argued that the conduct
of the officers who were the
other members of the Court ‘amounted to an unlawful usurpation of the
judicial power, and was
calculated and intended to incite to actual
rebellion’.[7]
H V Evatt observed in his book Rum Rebellion:
even from a strictly legal point of view, the result of this assistance was by no means unsatisfactory. The inference is that Macarthur was of the opinion, not that Atkins and Crossley were making a bad legal job of it, but that they were making too good a legal job of it.[8]
Sir Francis Forbes, the first Chief Justice of New South Wales, from time to
time gave advisory opinions to the Governor. It is perhaps
not surprising that
he felt free to do so. Not only was he Chief Justice, he was also a member of
the Legislative Council and the
Executive Council. He was also required by the
New South Wales Act 1823 to certify that
colonial legislation was not repugnant to English
law.[9] During his term he provided
Governor Darling with opinions on topics including the powers of the
Governor,[10] the respective rights
of convicts and their masters,[11]
and the competency of convicted persons whose sentences had expired or been
remitted to be jurors in
England.[12] When Governor Darling
perceived himself to be under siege by a critical press, particularly The
Australian and The Monitor newspapers, he introduced
restrictive laws into the Legislative Council. Forbes advised Darling that some
of his proposed legislation
was repugnant to English
law.[13]
As Chief Justice of the
Colony of Queensland, Sir Samuel Griffith gave advice to Queensland Governors on
more than one occasion. In
November 1893, he was asked to advise Governor Norman
in relation to a dispute between the Governor and the Administrator of British
New Guinea, one William MacGregor. The dispute concerned MacGregor’s term
of office.[14] Griffith gave advice
to both men and urged compromise. As a result, MacGregor, who had wanted to
resign his administration, returned
to the position for a second
term.[15]
Professor Geoffrey
Sawer, writing in 1977, referred to the established tradition of colonial and
state Chief Justices giving advice
to their Governors. He said:
The Chief Justices of State and previously colonial Supreme Courts have
always been regarded as proper sources for advice to State Governors, as
Sir Samuel well knew from his previous experience as Chief Justice of Queenslan[16]16
Sawer made the point, however, that state Chief Justices had always been
Lieutenant-Governors and often Acting Governors and had close
social relations
with the Governors. Moreover, the occasions for constitutional adjudication
under state constitutions in state supreme
courts had been infrequent.
Nevertheless, and not surprisingly, the practice of the colonies and the states
which they became spilt
over into the new Commonwealth of Australia.
Don
Markwell, in an interesting article published in the Public Law
Review in
1999,[17]
cited a number of cases in which Governors-General had, during the first two
decades of the Federation, consulted with both the Chief
Justice of the High
Court, Sir Samuel Griffith, and Sir Edmund Barton. It is useful to refer to
several of those cases here.
In August 1904, the first federal Labor
government was unable to secure the passage of its Arbitration Bill through the
House of Representatives.[18] Prime
Minister Watson asked for a dissolution of the House, but the Governor-General,
Lord Northcote, refused.[19]
Earlier that year Griffith had predicted that Watson would be defeated and had evidently discussed that likelihood with the Governor-General. On the day that the government was defeated Northcote requested that Griffith come and see him. Griffith recorded in his papers that Northcote ‘consulted me about the political position’.[20] In 1909, Griffith also advised Governor-General Dudley in relation to the request of Prime Minister Andrew Fisher for a dissolution following his defeat in the House of Representatives. Griffith recorded in his diary of 31 May 1909 that he had lunch with Lord Dudley and ‘[w]rote [n]otes for him re proposed dissolution’.[21]
In 1914, the Cook Liberal government requested a double dissolution from
the new Governor-General, Sir Ronald Munro
Ferguson.[22]
Munro Ferguson’s immediate predecessor, Lord Denman, had given him a written briefing about how he might seek assistance in dealing with the anticipated request for a double dissolution. Denman wrote:
I suppose Griffith and Barton are the most reliable authorities, should you want advice. Isaacs is a judge who I believe is thought well of by the Labour party (it is sad how everyone in this country, even the judges, are supposed to have partizan leanings), but perhaps Griffith and Barton might hardly like a third opinion being sought.[23]
Denman also advised his successor that Professor Harrison Moore was ‘considered both able and impartial’ and that his opinion might be worth asking privately.[24]
When Cook sought a double dissolution from the new Governor-General, the
Governor-General asked whether he could consult the Chief
Justice. Cook had no
difficulty with that notion and the Governor-General saw the Chief Justice on
the following day.[25]
Griffith evidently told him that he had full discretionary power to decide for or against a double dissolution independently of the advice from his Ministers.[26]
The government argued that the Governor-General was bound to accept the Prime Minister’s advice. The Governor-General did not agree with that proposition. Nevertheless he granted the double dissolution because there was no alternative government which could muster a majority.[27]
At the request of the Governor-General, Griffith later reduced his advice to
writing. The Chief Justice also advised the Governor-General
on how to deal with
Fisher’s resignation as Prime Minister in
1915.[28]
In 1916, when the issue
of conscription arose in relation to the First World War, Governor-General Munro
Ferguson apparently received
advice from the Chief Justice that, in his opinion,
the government had no power to conscript for overseas service. Markwell set out
in his article the text of a striking letter written by Sir Samuel Griffith to
the Governor-General on 19 May 1916:
I have today ascertained that the question of the validity of some of the War regulations is about to be brought before the High Court. It would be a public calamity if the Court were compelled to pull down the whole fabric.
Under the circumstances, [and] as Parliament is sitting, I think it is consistent with my duty to the Sovereign to suggest to you that you should invite the attention of Ministers to the danger, for there is no doubt that the extent of the powers conferred by existing legislation is open to much question; which can only be solved by Parliament or the Court.
Any help that I can give in framing any necessary legislation is, as I told Mr Hughes before he left for England, at the service of the Government.[29]
Sir Samuel’s diary subsequently recorded that he lunched at Government House with the Acting Prime Minister, Senator Pearce, and discussed the War Precautions Bill 1916 (Cth).[30]
There are a number of other examples cited in the Markwell paper of
consultations with Griffith and Barton between 1915 and
1919.[31]
The evidence of consultations between the Governor-General and Chief Justice
of the High Court after the first two decades of the
Federation is
limited.
There were a number of instances in which a state Governor received
advice from the Chief Justice of his state. In 1922, the Governor
of Queensland,
Sir Mathew Nathan, was asked by the Premier, Edward Theodore, to assent, as a
matter of urgency, to a Bill which would
authorise voting by proxy in the
Legislative Assembly. The Opposition had refused to provide pairs for government
Members absent
from the Assembly because of
illness.[32]
The government had ‘wheeled’ its sick Members into the Assembly and
pushed through a Bill which would authorise voting
by
proxy.[33] The Bill was carried
after 23 divisions on the Speaker’s casting vote. When it was presented to
the Governor he told the Premier
that he did not like the measure as it was
designed solely to keep the government in office. He asked the Premier if he
could obtain
the advice of Chief Justice McCawley and the Premier agreed. After
having been advised by the Chief Justice and also by the Attorney-General,
the
Solicitor-General and leading barristers who had been consulted by the
government, the Governor assented to the
Bill.[34]
Events which led to the dismissal of the Lang government in New South
Wales in 1932 were preceded by communication between the Governor,
Sir Philip
Game, and Chief Justice Philip Street. Lang had issued ‘a circular
instructing public servants not to pay money
into the Federal Treasury as
required by law.’[35] In
Game’s opinion this was illegal. Lang refused to withdraw the circular and
the Governor dismissed him on 13 May
1932.[36] There were close
communications between Chief Justice Philip Street and the Governor in the days
leading up to the dismissal. In
a letter written by Lady Game to her mother on
15 May 1932, she said that the Governor and the Chief Justice had spent the
night
before Lang was dismissed discussing whether the Governor could refuse
assent to the Mortgages Taxation Bill 1932 (NSW). They had
formed the view that
assent could not be
refused.[37]
Not long before he
died, Lang was interviewed by Andrew Morrison, who reported that Lang blamed
Street for Game’s refusal to
accept his advice and spoke of ‘our
enemies led by the Chief Justice of New South
Wales.’[38]
Morrison wrote:
This consultation was frequent and extensive and was without the permission of the Cabinet, although it was, apparently, suspected by Lang. It is, however, clear that Game’s final decision was his own. As he stated in his telegram to the Secretary of State of April 23, 1932: ‘I presume — and the Chief Justice concurs in this view — that I have no other responsible adviser and that I must decide the question of illegality for myself in the end.’[39]
In 1952, Sir Dallas Brooks, the Governor of Victoria, took advice from the Chief Justice of Victoria, Sir Edmund Herring, and the Chief Justice of the High Court, Sir Owen Dixon. The question was whether he should grant a dissolution requested by Mr Hollway, whom he had recently commissioned as Premier following the refusal of supply to former Premier McDonald. Governor Brooks said:
I felt it advisable to seek the advice of the Chief Justice of the Supreme Court of Victoria, Lieutenant-General the Honorable Sir Edmund Herring. After discussing the matter with Sir Edmund Herring and hearing his views, I felt it wise also to seek the advice of the Chief Justice of the High Court of Australia, the Right Honorable Sir Owen Dixon. Having informed Sir Owen Dixon of what passed between myself and the four leaders of the respective parties, I had the advantage of hearing the view of Sir Owen Dixon expressed independently of that of Sir Edmund Herring. Both Chief Justices expressed the same view; namely, that I ought not to grant a dissolution to Mr Hollway.[40]
When Sir Garfield Barwick was Chief Justice, Lord Casey as Governor-General
sought his advice following the disappearance of Prime
Minister Harold Holt. It
appears that Lord Casey asked Sir Garfield whether he should immediately appoint
an Acting Prime Minister
or wait for further news about Holt. He also asked Sir
Garfield whether he should appoint the Deputy Prime Minister, Mr McEwen, who
was
the leader of what was then the Country Party, or wait until the Liberal Party
elected its own leader. Barwick records his advice
that an Acting Prime Minister
should be appointed immediately and that it should be John McEwen on condition
that he resign when
the Liberal Party had elected a
leader.[41]
It
is unnecessary to recount in detail the events of 1975. It suffices to say that
the Whitlam Labor government had a majority in
the House of Representatives, but
not in the Senate. The Senate refused supply until the government agreed to
‘submit itself
to the judgment of the
people’.[42] On the morning of
10 November 1975, at the request of the Governor-General, Sir Garfield Barwick
called upon him at Admiralty House
in Sydney. The Governor-General told him that
he had decided to terminate the Ministry’s commission and to appoint a
caretaker
Prime Minister who could obtain supply. According to Barwick’s
account of it, the Governor-General asked him if what he proposed
to do was
within his constitutional power given the circumstances then prevailing. In the
book A Radical Tory, Barwick explained what then
happened:
I responded to a request by the Governor-General for an answer to a question he asked. It was a legal question — not a political question — and its answer did not involve the expression of any political opinion, though of course Sir John’s action in withdrawing the ministry’s commission was likely to have, and did in fact have, political consequences.
Having heard his question and having decided to give the Governor-General an answer to his question, I knew of instances in which a Chief Justice and other judges of the High Court had given legal advice personally to a Governor-General. I knew also that the Chief Justice of the High Court had on an occasion given such advice to a State governor. …
I was satisfied that what I was asked did not involve a justiciable question; no court would interfere with the exercise of the Governor-General’s discretion to choose or dismiss a ministry. In the case of his choice, the Parliament alone can approve or disapprove it. In the case of a dismissal it is the electorate which will decide whether or not the dismissed ministry will or will not be returned to office. What the Governor-General proposed to do was to dismiss a ministry of which the Parliament, that is to say the whole Parliament, did not approve. That was not a matter in which any court could interfere.[43]
The Chief Justice then wrote a letter to the Governor-General and concluded with the words:
Accordingly, my opinion is that, if Your Excellency is satisfied in the current situation that the present Government is unable to secure supply, the course upon which Your Excellency has determined is consistent with your constitutional authority and duty.[44]
The rights and wrongs of Sir John Kerr’s decision, the merits of Sir
Garfield Barwick’s advice and the propriety of furnishing
it with or
without the consent of the Prime Minister have been much debated. Much of that
debate, particularly with reference to
the position of the Chief Justice,
appears to have been focused on historical precedent.
In considering whether
it would be appropriate today for a Chief Justice to provide legal advice to the
Governor-General, it is necessary
to consider the constitutional position of the
holder of that office. That position is accorded little exposition in the
Constitution itself. It is mentioned in s 71, which provides:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
The terms and conditions of appointment and removal of Justices of the High
Court are set out in s 72. There is no distinction drawn between the Chief
Justice and the other Justices of the High Court in that respect. Section 71 is
the only provision of the Constitution in which the Chief Justice is
mentioned.
The function of the Chief Justice as a Justice of the High Court
is to exercise and participate in the exercise of the judicial power
of the
Commonwealth and jointly, with the other Justices, in the management of the
Court. There is nothing in the Constitution, the Judiciary
Act 1903 (Cth) or the High Court of
Australia Act 1979 (Cth) to support the proposition that it
is an incident of the office of Chief Justice that he or she can be called upon
to provide
independent legal advice to the Governor-General relating to the
discharge by the Governor-General of his or her powers.
Such advice, if
provided, would have no constitutional standing to distinguish it from legal
advice received from a senior barrister
or a constitutional law expert, or a
retired Chief Justice of the High Court or any other court. And it is difficult
to see any basis
upon which there could be erected a constitutional convention
that would entitle a Governor-General to seek such advice, with or
without the
consent of the Prime Minister. Undoubtedly there have been historical
precedents. But the nature and circumstances of
those precedents are not such as
to provide any sound foundation for the existence of a convention. So far as the
precedents relate
to colonial and state Chief Justices they were located in a
different constitutional framework and a different relationship between
the
Chief Justice and the colonial or state Governor. They did not occur within a
colonial or state constitutional framework mandating
separation of judicial and
executive power. The early examples of advice tendered by Sir Samuel Griffith
and Sir Edmond Barton may
be seen against the background of their pre-Federation
experience. The contemporary understanding of separation of powers and the
nature of the judicial power under Chapter III of the Constitution was
not developed to the extent that it is today. And the concept of justiciability
in relation to the exercise of gubernatorial
powers under a written constitution
had not been the subject of much debate.
This is not an occasion to theorise
upon the limits of the justiciability of the acts of the Governor-General,
whether in the exercise
of reserve powers or otherwise. It is sufficient to say
that even the most confident judgement that a matter upon which advice is
sought
is not justiciable or unlikely to come before the court may be confounded by
events. And even if a judgement about justiciability
were proved correct, that
vindication might come only after the question of justiciability had been
agitated in a challenge in the
court to the exercise of vice-regal power or
things done in reliance upon its exercise.
It is unnecessary for present
purposes to expound further upon matters of principle. The life of the law as
experience rather than
logic always suggests the exercise of caution before
taking an absolute position on anything. However, it 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. Indeed, it might be that some agreed mechanism could be
established against the rare event
that it is thought desirable to have access
to independent counsel. A small group of independent experts, perhaps even
including
one or more retired Justices of the High Court, could be established
for the purpose.
In a eulogy in honour of Sir Garfield Barwick, delivered on
5 August 1997 and recorded in volume 187 of the Commonwealth Law
Reports, Sir Gerard Brennan, then Chief Justice, referred to Sir
Garfield’s tendering of advice to Sir John Kerr and said of that
event:
It was, and remains, a controversial matter but, if only on that account, will not happen again.[45]
I agree with that sentiment.
[*] BSc, LLB (UWA); Chief Justice of the High Court of Australia. This piece was originally presented by the author as ‘The Chief Justice and the Governor-General’ (Speech delivered at the Melbourne University Law Review Annual Dinner, Melbourne, 29 October 2009).
[1] Fred Rodell, ‘Goodbye to Law Reviews’ (1936) 23 Virginia Law Review 38.
[2] Fred Rodell, ‘Goodbye to Law Reviews’ (1999) 73 Australian Law Journal 593.
[3] Ibid 594.
[4] Justice Michael Kirby, ‘Welcome to Law Reviews’ [2002] MelbULawRw 1; (2002) 26 Melbourne University Law Review 1, 11.
[5] See generally H V Evatt, Rum Rebellion: A Study of the Overthrow of Governor Bligh by John Macarthur and the New South Wales Corps (1938) 192–212.
[6] New South Wales Act 1787 (Imp) 27 Geo 3, c 2, s 1.
[8] Ibid 203.
[9] Justice, New South Wales Act 1823 (Imp) 4 Geo 4, c 96, s 29.
[10] Letter from Chief Justice
Forbes and Judge Stephen to Governor Darling, 13 December 1826 in Library
Committee of the Commonwealth
Parliament, Historical Records
of Australia:
Series I — Governors’
Despatches to and from England
(1914–25) vol 12, 755.
[11] Letter from Chief Justice Forbes to Governor Darling, 3 October 1827 in Library Committee of the Commonwealth Parliament, Historical Records of Australia: Series I — Governors’ Despatches to and from England (1914–25) vol 13, 607.
[12] Chief Justice Francis Forbes, Justice James Dowling and Justice W W Burton, ‘Opinion of their Honors the Judges of the Supreme Court of New South Wales, as to the Competency of Persons, Whose Sentences Have Expired, or Been Remitted, to Be Jurors in England’, The Sydney Herald (Sydney), 12 August 1833, 2.
[13] See Letter from Chief Justice Forbes to Governor Darling, 16 April 1827 in Library Committee of the Commonwealth Parliament, Historical Records of Australia: Series I — Governors’ Despatches to and from England (1914–25) vol 13, 282. The ‘opinions’ of Forbes are also available online: Bruce Kercher, Macquarie University, Important Judgments: Forbes Court, 1824–1836 (2009) Decisions of the Superior Courts of New South Wales, 1788–1899 <http://www.law.mq.edu.au/scnsw/html/judgments.htm> .
[14] Roger B Joyce, Samuel Walker Griffith (1984) 249.
[15] Ibid.
[16] Geoffrey Sawer, Federation under Strain: Australia 1972–1975 (1977) 157.
[17] Don Markwell, ‘Griffith, Barton and the Early Governor-Generals: Aspects of Australia’s Constitutional Development’ (1999) 10 Public Law Review 280.
[18] Conciliation and Arbitration Bill 1904 (Cth).
[19] Markwell, above n 17, 283.
[20] Papers of Sir Samuel Walker Griffith: Volume 4 — Letters to Lady Griffith, 1873–1916 (State Library of NSW, MLMSS 363/44) 92, quoted in ibid.
[21] Diary Entry for 31 May 1909 in Sir Samuel Griffith Diaries (State Library of NSW, DLMSQ 197) 87, quoted in Markwell, above n 17, 284.
[22] Markwell, above n 17, 284.
[23] Letter from Lord Denman to Sir Ronald Munro Ferguson, 11 May 1914 in Papers of Ronald Craufurd Munro Ferguson (Lord Novar) (National Library of Australia, MS 696) 7393, 7399, quoted in ibid.
[24] Denman, above n 23, 7399, quoted in Markwell, above n 17, 284.
[25] ‘Memorandum of My Interview with Mr Cook on 2 June 1914, When He Asked for Double Dissolution’ in Papers of Ronald Craufurd Munro Ferguson (Lord Novar) (National Library of Australia, MS 696) 10 283, 10 283–4, quoted in Markwell, above n 17, 284.
[26] Letter from Sir Ronald Munro Ferguson to Lewis Vernon Harcourt, 9 June 1914 in Papers of Ronald Craufurd Munro Ferguson (Lord Novar) (National Library of Australia, MS 696) 4618, quoted in Markwell, above n 17, 284.
[27] Markwell, above n 17, 284–5.
[28] Ibid 286.
[29] Letter from Chief Justice Griffith to Sir Ronald Munro Ferguson, 19 May 1916 in Papers of Ronald Craufurd Munro Ferguson (Lord Novar) (National Library of Australia, MS 696) 3739, 3739–41, quoted in ibid 289.
[30] Diary Entry for 20 May 1916 in Sir Samuel Griffith Diaries (State Library of NSW, DLMSQ 197), quoted in Markwell, above n 17, 289.
[31] See generally Markwell, above n 17, 288–90.
[32] Andrew Morrison, ‘How Australian Governors Get Their Advice’, The Sydney Morning Herald (Sydney), 24 March 1983, 6.
[33] Ibid. See also Neville Cain, ‘Theodore, Edward Granville (1884–1950)’ in John Ritchie (ed), Australian Dictionary of Biography (1966–) vol 12, 197, 198.
[34] Morrison, ‘How Australian Governors Get Their Advice’, above n 32, 6.
[35] Bede Nairn, ‘Lang, John Thomas (1876–1975)’ in Bede Nairn and Geoffrey Searle (eds), Australian Dictionary of Biography (1966–) vol 9, 661, 665.
[36] Ibid.
[37] Anne Twomey, ‘The Dismissal of the Lang Government’ in George Winterton (ed), State Constitutional Landmarks (2006) 129, 139, citing Letter from Lady Game to Her Mother, 15 May 1932.
[38] Andrew Morrison, Interview with Jack Lang (March 1975), quoted in Morrison, ‘How Australian Governors Get Their Advice’, above n 32, 6.
[39] Morrison, ‘How Australian Governors Get Their Advice’, above n 32, 6.
[40] John B Paul, ‘The Dismissal: History Justifies Barwick’s Advice’ (1 March 1983) The Bulletin 50, 58. On Dixon’s involvement, see generally Philip Ayres, Owen Dixon (2nd ed, 2007) 235–8.
[41] Garfield Barwick, A Radical Tory: Garfield Barwick’s Reflections and Recollections (1995) 290.
[42] Commonwealth, Parliamentary Debates, Senate, 15 October 1975, 1156 (Reginald Withers).
[43] Barwick, A Radical Tory, above n 41, 291.
[44] Letter from Chief Justice Barwick to Governor-General Kerr, 10 November 1975, quoted in ibid 292.
[45] ‘The Late Sir Garfield Barwick’ (1997) 187 CLR v, viii.
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