In the crucial days leading up to The Dismissal, Sir John Kerr went behind his Prime Minister’s back and sought the advice of the Chief Justice, Sir Garfield Barwick.It is now portrayed as an extraordinary thing for a Governor-General to do so. And yet recent research suggests it was anything but an unusual occurrence.

In 1952 the Victorian Governor took advice from both the State Chief Justice and from the chief Justice of the Commonwealth over a constitutional problem, and there have been al least four other occasions when such advice has been taken.

It has long been known that in the Commonwealth, in 1914, the Governor-General asked the Prime Minister for permission to consult the Chief Justice and that this was granted. That such consultation occurred in 1932 between Sir Philip Game, as Governor of NSW, and Sir Philip Street, as Chief Justice, before the dismissal of the Lang Government has also been evident, although some details have come to light only recently.

Indeed, Lang in an interview with me in March, 1975, some six months before his death, blamed Street for Game’s refusal to accept his advice. He reserved his most vituperative comments for “… our enemies led by the Chief Justice of New South Wales.”

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 Sate 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 illegibility for myself in the end.”

The other two instances have only recently come to light as the result of research in the Colonial Office archive in the Public Record Office in London.

In 1922 the Theodore Labor Government in Queensland had engaged in some parliamentary sharp practice. This resulted in the Opposition refusing pairs for Government members absent through illness. With a majority of only one the Government was endangered. It therefore wheeled its sick members into the Assembly and rushed through a bill authorising voting by proxy. What The Times of August 23, 1922, described as “a desperate struggle” ensued but after 23 divisions for bill was carried on the Speaker’s casting vote. It provided for the Premier, Mr Theodore to exercise the votes of three ill members.

The Premier advised the Governor, Sir Matthew Nathan, to assent to the bill as a matter of urgency. In a dispatch of October 5, to the Secretary of State, the Governor reveals that he told the a Premier that he did not like the measure, which was designed solely to keep the Government in office. He asked the Premier to allow him to obtain the advice of the Chief Justice, T. W. McCawley. The Premier agreed.

The result is revealed in the Governor’s telegram of August 21, 1922: “After being advised by the Attorney-General, Solicitor-General and leading barristers consulted by the Government and by the Chief Justice consulted by myself that the bill … need not be reserved for signification of Her Majesty’s pleasure, I have today assented to the bill.” The file in the Colonial Office bears a pencilled minute by J. M. Green, a senior clerk, dated October 10, 1922.

“The Governor is entitled to the advice of his Attorney-General, but I see no reason why he should not also consult the Chief Justice, though I have not been able to find a precedent in a self-governing Dominion or a State. But I do not understand that it is necessary to do so through the Premier, though no doubt in the circumstances it was the most tactful course.

Sir J. S. Risley, legal adviser to the Colonial Office, added the next day that “his main reason for consulting CJ seems to have been that the AG is not a member of the legal profession.”

In December 1925, the recently appointed NSW Premier, Jack Lang, requested the Governor, Sir Dudley de Chair, to appoint 25 new members to the Legislative Council to force through a number of Government measures. The Governor thought this request excessive, given the parliamentary situation and the lack of obstruction by the Council, but offered the Premier 15 appointments. Lang construed this as a rejection of his advice and sought the intervention of the Secretary of State to direct the governor to give way. This was declined.

It is evident from one of de Chair’s telegrams to the Secretary of Sate of December 5, 1925, that he had been taking advice privately from the Chief Justice: “The Chief Justice, with who I have talked matters over, thinks with me that an increase of 10 or 15 would be generous in the circumstances.”

Apparently, the Cabinet suspected the Governor was taking advice from the Chief Justice. Thus appears an internal letter within the Colonial Office from the assistant Under-Secretary of State to the Secretary of State dated December 5, 1925, referring to representations made in London by the NSW Agent-General, for intervention: “Sir T. Coghlan hinted that ministers felt that the Governor had been taking advice elsewhere. What exactly was in his mind, I do not know, but you will see from the Governor’s personal telegram that he has consulted the Chief Justice.”

In the end, the Governor gave way and made the appointments under protest. By telegram of December 17, 1925, he advised: “Course of action suggested is considered by Chief Justice to be the only solution of the position.”

The then Chief Justice was Sir Philip Street, who also advised Game in the 1932 crisis. Except for a period in Queensland, State Chief Justices have invariably been appointed Lieutenant-Governor, he becomes the Officer Administering Government and thus fills the Governor’s role and is called upon to decide constitutional issues as they arise. Under these circumstances there could be nothing more natural in the Australian environment than for a close relationship to build up between Governors and Chief Justices, and for regular and informal consultation to take place. Indeed, it would be strange if it had not occurred.

This, and the fact that many Governors faced with difficult legal issues have not been lawyers, has encouraged the practice of such consultation. We now know of six examples, two with ministerial position and four without.

It is highly probable that there were many more, particularly on an informal basis. It is, I think, apparent that a practice of such consultation has developed in Australia and that overseas comparisons are not relevant.

ANDREW MORRISON QCis a lawyer who has published a number of academic articles on Australian legal history.