"All that is necessary for the triumph of evil is that good men do nothing"
Edmund Burke
“The Crown and The Constitution”The Dissolution of the Australian Parliament: 11 November 1975 By Professor D. P. O’Connell... (Reprinted from "The Parliamentarian" - January 1976) Professor Daniel Patrick O'Connell: Educated at University of Auckland, N.Z. and Trinity College, Cambridge, U.K. L.L.M. (N.Z.): Ph. D., LL.D (Cantab). Reader in Law, University of Adelaide 1953-62; Professor of International Law, Adelaide 1962-72; Chichele Professor of International Law, Oxford University since 1972. Author of a number of publications on International Law. The Dissolution of the Australian Parliament: 11 November 1975 By Professor D. P. O’Connell... (Reprinted from "The Parliamentarian" - January 1976) On 11 November 1975 the Governor-General of Australia, Sir John Kerr, dismissed the Labour Government of Mr Gough Whitlam, commissioned the Leader of the Opposition, Mr Malcolm Fraser, to form a caretaker Government until an election could be held, accepted Mr Fraser's advice given immediately afterwards that both Houses of Parliament should be dissolved, and dissolved them, unleashing a storm of controversy as to the constitutionality of his actions and their likely consequences in the long as well as the short term. The Governor-General saw Mr Whitlam at Government House at 1 p.m. on that day and handed him the following letter:
The Governor-General's statement of his reasons is appended to this article. At 2.20 p.m. the Senate passed Supply Bills. Fourteen minutes later Mr Fraser rose in the House of Representatives to announce that he held the Governor-General’s commission as Prime Minister. There followed five divisions in that House which the Labour Party (now the Opposition) won. The final division was on a motion of no-confidence in Mr Fraser as Prime Minister, which, when it was passed, led to a resolution requesting the Speaker to call on the Governor-General to dismiss Mr Fraser and commission Mr Whitlam to form a Government, as the leader of the party with the confidence of the House of Representatives. At 3.15 p.m. the House adjourned for the Speaker to convey this resolution to the Governor-General. An appointment was made for the Speaker to see the Governor-General at 4.45 p.m. At that very time the Governor-General's secretary read the proclamation of dissolution of Parliament upon the steps of Parliament House to a hostile crowd and an angry Mr Whitlam, whose immediate response was an intemperate remark about the Governor-General which many took as a threat to both the office and its incumbent. In the election campaign that followed, both the Labour Party and the Liberal Country Party coalition acclaimed the Governor-General's action as, respectively, an assault upon and a defence of the Constitution. Certainly it was an unusual test of the relationship between Parliament and the Head of State and of the inherent power of the Head of State in the authentic processes of democracy. Some have seen it as a vindication of the view that the Crown has residual power to resolve a question of the constitutionality of governmental actions, and so as a matter of general interest to Commonwealth countries which have retained the monarchy. However it be interpreted, the episode is of historic importance. A proper assessment of the constitutionality of the Governor-General's actions and associated events requires a review of the progress of the constitutional crisis leading to the dissolution of Parliament. A prominent feature of the policies of the Labour Government after it came to power in December 1972 was the progressive ousting of foreign multinational interest in the Australian mineral industry. Since section 51 (xxiii) of the Australian Constitution requires the payment of compensation on "just terms" for the taking of property, a programme of nationalization would require a prodigious outlay of public money. During the early part of 1975 a public scandal erupted over attempts by the Treasurer, Dr Cairns, to raise the vast sum of four billion dollars on the international loan market through unconventional agencies and outside the legal framework for the raising of loan monies. It was generally believed that the funds thus raised would be employed in a scheme for the transfer to Australian ownership of the mineral interest in foreign corporations. The documents that passed from hand to hand among the fringe bankers who sought to raise these funds tend to authenticate this theory, since they state that the funds were to be put at the disposal of the "Ministry of Energy". But another explanation was suggested in a letter to the Melbourne Age of 11 July 1975 by a Professor C. Howard, who had until shortly before he wrote this letter been a special constitutional consultant to Senator Murphy, the Labour Attorney-General, whom he included in his denunciations in this letter. He wrote:
He then nominated as persons "known or believed to have been implicated in one capacity or another", Mr Whitlam, Dr Cairns, Mr Connor, the Minister of Energy, and Senator Murphy. These four Ministers are said by other sources to have participated in a joint decision to raise the funds in these amounts and in unorthodox ways, although this has not been substantiated.1 The unorthodoxy lay not only in the use of fringe bankers and amateur agents but in the circumvention of the strict requirements of the Financial Agreements Act, 1928-1966, which is covered by Section 105A of the Constitution. This schedules the Financial Agreements of the Commonwealth and States, whereby all loan raisings have to be approved by the Australian Loan Council (which is composed of Commonwealth and States), unless the raisings are for "temporary purposes". It has been rumored that the Attorney General gave an opinion that a loan with a maturity date of 20 years would be a loan for temporary purposes (although it would be difficult to see what could then be a loan for other than temporary purposes, since 20 years exceeds the maturity period of most bond issues). Certainly, documents relating to the attempts of the agents to raise the sum of four billion dollars nominate a 20-year period. When the facts of Dr Cairns' actions became public knowledge he was dismissed by Mr Whitlam amid charges of exorbitant commissions to various people. Various undertakings were then given to Parliament by Mr Whitlam, but in mid-October he found it necessary to dismiss Mr Connor also for continuing to negotiate with a view to raising these funds. Subsequently, reputable newspapers alleged that Mr Whitlam himself was a party to the decisions taken to authorize the negotiations, and was aware of the activities of his Ministers at all relevant times, but again this has not been substantiated. Whatever the truth of the various allegations made before and after the dissolution of Parliament, the dismissal of Mr Connor a few days before the Senate was due to vote on the budget, which had already passed the House of Representatives, suggested the atmosphere of a major financial scandal. Since Labour did not have a majority in the Senate the possibility had been canvassed for some months of the Opposition seeking to force a general election by rejecting the Supply Bill when it reached the Senate. Mr Fraser had publicly said that this would happen only when extraordinary and reprehensible circumstances existed. The loans scandal led to the Opposition adopting the stance that these circumstances did exist, and the Senate deferred the Supply Bill each time that it was presented by the Government during the next three weeks. It was expected that within six weeks the Government would be driven to extraordinary methods to maintain public services, or would have to resign or Mr Whitlam would have to advise the Governor-General to dissolve Parliament. Mr Whitlam determined to ride out the storm. The initial stages of the constitutional crisis thus raised two questions of constitutional law and practice: concerning the powers of the Senate with respect to Supply, and the requirements of law relating to the expenditure of funds without budgetary appropriation. Refusal of Supply: Power of Senate So far as the withholding of supply is concerned, the position in Australia is different from what it is in the United Kingdom, where the House of Lords has long been fettered in the matter of money Bills. The draftsmen of the Australian Constitution of 1900 deliberately rejected the idea that the popularly elected House should be paramount in the matter of Supply in favour of the idea of control by the states over federal expenditure through the Senate, which was structured to represent the people organized in the states rather than in the electorate generally. This fundamental point has not always been adverted to in the course of the controversy over the Senate's powers, nor has attention been drawn to section 49 of the Constitution which states that the powers, privileges, and immunities of the Senate are those of the House of Commons, and not of the House of Lords. Section 53 of the Constitution reads:
It will be noted that the limitations imposed on the Senate in respect of money Bills relate to their amendment not their rejection. So far as their rejection is concerned, there is nothing in the Constitution to suggest that the ordinary requirements of Section 1 for the enactment of legislation would not apply to money Bills, namely that they should pass both Houses. In 1974 the Senate forced a dissolution of both Houses by rejecting a series of government Bills. The possibility of it repeating this in 1975 depended upon Mr Whitlam taking advantage of the continued rejection of his Bills by a hostile Senate to advise the Governor-General in favour of a double dissolution once again. But Mr Whitlam made it clear that he would suffer the rejection and would not go again to the electorate. So the rejection of the budget seemed to be the only way in which the Government could be forced to go again to the people. The loan scandals could then be made an electoral issue. Whatever the written text of the Constitution, the rejection of Supply was a highly controversial matter, and Mr Whitlam had for some time previous to the passage of the budget through Parliament been mobilizing opinion against it. A government-inspired move led to letters to the newspapers contending that the duty of the Senate to pass the Supply Bill was a matter of constitutional convention, as in the case of the House of Lords, or, at least, that it was rash because once the precedent was set it could become a routine political tactic which would debase the constitutional system, if it did not actually make Australia ungovernable. Although it was widely canvassed, the theory of a constitutional convention on the subject of Supply in Australia is not readily sustainable. For a constitutional convention to arise which would, in effect, alter the intendment of the written text of the Constitution there would have to be a practice to that effect supported by a general consensus. While it is true that the Senate had not previously rejected Supply, the constitutional theorists had never previously propounded a theory on the basis of this self-denial, which was explicable by political circumstances. And the Labour Party, which in 1975 was so assiduous in cultivating the supposed convention, had, when in Opposition in 1970, voted in the Senate against Supply legislation on the theory of the Senate's independent role. Speaking in the House of Representatives on 12 June 1970 in the debate on the States' Receipts Duties (Administration) Bill, Mr Whitlam (then Leader of the Opposition) said: "This Bill and its associated Bills will be rejected by Parliament. This Bill will be defeated in another place. The Government should then resign. It has become quite clear in the months since the last federal election that this Government is pathologically incapable of resolving the problems of Commonwealth-state-civic financial relations." On 18 June 1970 in the debate on the same Bill in the Senate, Senator Murphy (then Senate Leader of the Opposition) said: "The Senate is entitled and expected to exercise resolutely but with discretion its power to refuse its concurrence to any financial measure, including a tax Bill. There are no limitations on the Senate in the use of its constitutional powers, except the limitations imposed by discretion and reason." On 25 August 1970, Mr Whitlam speaking in the budget debate in the House of Representatives said: "Let us take this budget and the Government which produced it to the people themselves. The Parliament has already voted Supply to the end of November. By that time, there can be an election for both Houses. An election therefore would cause no disruption. The only thing that will cause disruption is the continuance of the Government. Let me make it clear at the outset that our opposition to this budget is not mere formality. We intend to press our opposition by all available means on all related measures in both Houses. If the motion is defeated, we will vote against the Bills here and in the Senate. Our purpose is to destroy the Government which has sponsored it." On 1 October 1970 Mr Whitlam said in the House of Representatives: "We all know that in British Parliaments the tradition is that if a money Bill is defeated ... the Government goes to the people to seek their endorsement of its policies." Furthermore, in Australia the rejection of Supply by Upper Houses has been an intermittent phenomenon for a long time, and even recently, because of the independent position of these Houses compared with the House of Lords. In the nineteenth century this occurred three times, the case of Victoria in 1879, when the Government ran out of money and sacked the civil service, being celebrated, and discussed prominently by Dicey in his Constitutional Law. The memory of these notorious incidents was fresh when the Australian Constitution was being drafted, and it is no accident that curbs on the Senate in this matter were excluded. Again in 1947 and in 1952 the Victorian Legislative Council rejected the Supply Bill, as did the Tasmanian Council in 1952. The expediency of the deferment of Supply by the Senate in October 1975 is a matter of political judgment, but its constitutionality is a different matter altogether, and the confusion of the two in the minds of the Australian public tended to excite public criticism both of the Liberal-Country Party action in failing to pass the budget and the decision of the Governor-General, consequent upon that action, to dismiss a Government which had the confidence of the House of Representatives. When the Supply Bill failed to pass the Senate Mr Fraser demanded the resignation of the Government and publicly argued that if this did not occur the Governor-General had the duty to dismiss the Government. It seemed, on the face of it, that the Governor-General, in acting as he did, was yielding to the tactics not to say the asseverations of the Opposition. The constitutionality of his action was thus inevitably confused with the questions of the confidence of the House of Representatives and the duty of the Governor-General to act upon the advice of a Prime Minister who enjoys this confidence. A Head of State who lacked the competence of independent action in the circumstances now existing in Australia would be nothing but the creature of a Government, irrespective of the expedients adopted by it to survive in power when denied the financial means of doing so. Either the Government would, within a short time, be driven to questionable methods of funding its necessary activities, or public administration would come to a halt - as it had in Victoria in 1879 - with incalculable social and economic consequences. Mr Whitlam stated that the Government would continue to govern without Supply, and that it had legal access to funds other than those appropriated by Parliament in the Consolidated Revenue Accounts to enable it to do so. There is no public indication of the funds to which he was referring, but it was believed that the Government's intention was to withdraw money from the Loan Fund. The legal situation seems to be as follows: Section 83 of the Constitution states that "no money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law". Harrison Moore, Commonwealth of Australia, 1st ed. p. 187 said: "This excludes the once popular doctrine that money might become legally available for the use of the government service upon the votes of Supply of the Lower House." Sections 31, 32, and 59 of the Audit Act, 1901-1973 require that no money shall be drawn from the Commonwealth Public Account except after the Auditor General has certified that that amount is lawfully available by virtue of appropriation under section 83 of the Constitution. The Commonwealth Public Account includes the Consolidated Revenue Fund and the Loan Fund. The necessary warrant for payment can be issued to the Treasurer by the Governor-General on the Auditor-General's certificate. Under section 42(2) (c) and (d) the Auditor General is legally bound to surcharge any person who pays out of the Commonwealth Public Account without the authority of a warrant lawfully issued by the Governor-General. The blockage of the Supply Bill by the Senate meant that appropriated funds would quickly run out. It is important to note the central position occupied by the Governor-General in this legislative scheme - something overlooked in the general debate upon the legality and propriety of his dismissal of the Government. His constitutional powers must be assessed in consideration of the legal responsibility placed upon him, by this legislation, and in the light of the knowledge, which he presumably acquired as to how the Government proposed to circumvent the legal restrictions upon its access to funds. How did the Government propose to draw public monies in order to stay in office? Any answer must be speculative.2 Section 3 of the Loan (Temporary Revenue Deficits) Act 1953-1966, and Section 6, of the Loan (Short-Term Borrowings) Act 1959-1973 allow the Treasurer to expend money standing to the credit of the Loan Fund for the purposes of any appropriation made or to be made out of the Consolidated Revenue Fund: both of these Acts appropriate to the extent necessary for the purposes of those sections. Was it intended to make out a plausible case for raiding the Loan Fund in order to finance routine expenditure, on the argument that, since the budget had merely been deferred by the Senate and not rejected, the expenditure was for the purposes of an appropriation "to be made"? The Governor-General, as a former Chief Justice of New South Wales, would be in a position to form a view as to the intrinsic legality of any policy of the Government; and as the person required to issue the warrant he would have an exceptional and independent authority. Again, his legal duty, coupled with what he presumably learned (since he says he talked with the Treasurer) are essential features of the background to his decisions. It may be because he felt he was on the horns of a legal and constitutional dilemma that the Governor-General decided to dismiss the Government and appoint Mr Fraser a caretaker Prime Minister to advise him to dissolve Parliament. Power of dissolution The power of dissolution in Australia has not been left to the prerogative. Section 5 of the Constitution concerns the dissolution of the House of Representatives, and reads as follows:
Section 57 governs the dissolution of the Senate, and it reads:
Governor-General's discretion The question is whether, by convention, the Governor-General is bound to accept the advice of his Ministers in all matters arising under these sections. As it happened, in the present case the dissolution of both Houses was advised by Mr Fraser when he took office, but since he did take office only on the understanding that he would tender this advice, and after the dismissal of Mr Whitlam, it is still pertinent to consider the question. Harrison Moore in his Commonwealth of Australia at p. 95 wrote that the Governor-General, in exercising his powers under section 5 would generally, "but not necessarily" act on the advice of his Ministers. In 1914 the Chief Justice advised the Governor-General in connection with a double dissolution (i.e., one under both sections 5 and 57) that under both sections the Governor-General had a duty of "independent exercise of discretion" (Evatt, "The Discretionary Authority of Dominion Governors", Canadian Bar Review, Vol. 18 (1940), p. 5). The Chief Justice said that the Governor-General must form his own judgment, and was not bound to follow the advice of his Ministers since he was "in the position of an independent arbiter". (Official History of Australia in the War of 1914-1918 Vol. XI, E. Scott, p. 19). Theoretically the discretion of the Crown in the matter of dissolution is maintained by Forsey (The Royal Power of Dissolution of Parliament in the British Commonwealth (1943), p. 259), who would allow it to be exercised only "negatively, preventively; never as a means of bringing about some positive end desired by the King himself or his representative". It is questioned by Markesinis, The Theory and Practice of Dissolution of Parliament (1972), pp. 7071, 120, on the ground that the Crown needs to be protected against a charge of partisanship. But in the case of the exercise of his powers under section 57 of the Australian Constitution, relating to the dissolution of the Senate, the Governor-General's competence of independent judgment has been conceded by Prime Ministers, notably by Mr Menzies when advising with respect to a double dissolution in 1951. He told the then Governor-General that the latter would not be bound to follow his advice in respect of the existence of the conditions of fact set out in section 57, although he had to be himself satisfied that those conditions of fact were established (Parliamentary Papers, 1957, Vol. 5, p. 918). In his memorandum of advice to the Governor-General, Mr. Menzies noted that the Governor General attached some importance to the unworkable condition of Parliament as a whole, which resulted from the failure of the Senate to pass legislation. His advice was that the Governor-General should dissolve Parliament if "good government, secure administration, and the reasonably speedy enactment of a legislative programme were being made extremely difficult, if not actually impossible". A clear perception of the scope of the Governor-General's discretion was difficult in the events of October-November 1975 because of the linking of the question of his duty to act on the advice of his Ministers with the contentions advanced by his Ministers that the Senate was in breach of the Constitution in rejecting Supply voted by the House of Representatives. The Governor-General might well have taken the view that one constitutional impropriety does not warrant another, and that his discretion should not be made to depend upon the plausibility of the Government's intentions respecting the Senate, but the confusion in the public mind as to the constitutionality of the Senate's actions would certainly have to be taken into consideration by him when determining the scope of his powers and the timing of their exercise. (In fact, the Governor General in his statement of his reasons for dismissing Mr Whitlam said that, in his view, the action of the Senate was not constitutionally improper.) The link between the two questions was explicitly presented in a legal opinion given to the Prime Minister by the Attorney-General and the Solicitor General on 4 November 1975.3 they said that:
The opinion, albeit none too firmly, supported the existence of a convention that the Senate ought not to refuse Supply, upon the basis that Supply had not previously been refused, and by drawing analogies from conventional situations not expressly covered by the Constitution, notably the office of Prime Minister. It was pointed out that Jennings (Cabinet Government, 3rd ed. 1969, p. 403) mentioned that no Government had been dismissed in the United Kingdom since 1784, and that in the case of others of the Crown's Dominions Forsey (p. 71) had been unable to find a case of "forced dissolution" since 1853, i.e. a case where Ministers were dismissed because they refused to advise dissolution. This led them to doubt the existence of a prerogative right in the instant circumstances. They drew attention to section 61 of the Constitution, which reads:
and to section 62 which provides for a federal Executive Council to advise the Governor-General "in the government of the Commonwealth". From these they concluded, in bold and broad terms, that "the executive power of the Commonwealth exercisable by the Governor General may only be so exercised on advice of a Ministry which, because responsible government permeates the Constitution, will be drawn from the majority party in the Representatives". It followed, in their opinion, that the Governor-General had no duty to dismiss the Government in the instant case; and, as to his powers, they admitted that he could not disregard the effects of the Senate's action upon the business of government, but they argued that it was "not correct to treat the exercise of those powers as demanded when refusal of Supply is threatened or when it occurs". They did not directly deal with the possibility - having dealt with the Governor-General's "duty" - that he nonetheless retained a discretion. At least by implication, they seem to have conceded it. They sought to meet the point by drawing attention to the provisions for breaking a deadlock between the two Houses, section 57 of the Constitution, and by pointing out that the conditions for doing so would only arise when the budget had failed to pass for a period of three months. The purport of this opinion was that the Government had the right to survive for at least another two months. The fact that the conditions prescribed for the use of section 57 already existed in the case of another 21 Bills which had failed to pass the Senate was beside the point if the Government chose not to advise the Governor-General to use that section. The defect in the argument was, of course, that even when the budget fell within those conditions the Government might still refuse, as it said it would, to advise a dissolution, so that the financial crisis would intensify, and would not be resolved by the use of the deadlock procedures. In other words, contrary to the opinion expressed, the Constitution did not contain effective provisions to resolve the problem, and so it is hard to agree that section 57 could plausibly curb the general functions of the Governor General as the Crown's representative and as an officer under the Constitution. The most that could be said about this argument of the Attorney General and the Solicitor-General is that section 57 limits the Governor-General's power to dissolve the Senate temporarily not absolutely; but even this limitation would depend upon facts not all of which are yet known. Consultation by Governor-General The Governor-General is unquestionably obliged to consult his Ministers, and his Law Officers, up to the time when he comes to make a decision. The Governor-General has said that he discussed matters with the Attorney General (and the Treasurer). It is not known that he discussed them with the Solicitor-General, who in Australia is a statutory creature, but it seems that he was handed a copy of the joint opinion. If it were to be said that he was under an obligation to make his decision upon the basis of the advice tendered to him by his Law Officers, it would follow that he would have no independent faculty of decision. If he does have that faculty it follows that when it comes to the point of his deciding to accept or to reject their advice he is entitled to seek other advice and is free to act upon it. This is what the Governor-General did. Following the precedent of 1914 already referred to, he consulted the Chief Justice, Sir Garfield Barwick, who advised as follows: Advice of Chief Justice
It will be noted that the Governor General’s letter to Mr Whitlam dismissing him followed the context of the Chief Justice's advice. (See page 1.) Impartiality of judiciary The propriety of the Chief Justice giving an opinion in these circumstances has been questioned, first on the ground that this was inconsistent with his judicial functions since the question might have to come before the High Court over which he presides; and secondly because of the previous position of the Chief Justice as Attorney-General and Minister of Foreign Affairs in the Liberal-Country Party Government of Sir Robert Menzies, Mr Fraser's party. So far as the first of these criticisms is concerned, the Chief Justice prefaced his opinion with the observation that he felt free to give it because the question "of its nature" was one not likely to come before the court. In their joint opinion the Attorney General and the Solicitor General had said firmly that the matter was not one for the courts, and that hence no judicial answer was possible, and only a political one could be sought. Indeed, it is apparent that the questions raised by the refusal of Supply were inherently non-justiciable. There remains the insinuation of partiality, and of course this is impossible to counter with technical argument. It draws attention to the consequences inherent in political appointments to the bench, especially of Law Officers whose standing is not that of Sir Garfield Barwick. It is proper for a Governor General to turn to the Chief Justice when he needs to consider whether or not to reject the advice of his Law Officers, because he is then getting a quasi-judicial opinion from the highest source. But the dangers inherent in an obscuring of the separation of powers when the judiciary is partially recruited from politics can engender public disquiet and give excuse to those who stigmatize the events as an establishment plot. There is, perhaps, a lesson in this. The Governor-General should, perhaps, nominate standing counsel of intellectual and professional repute who stand outside politics and are not members of the judiciary, to whom he can turn for independent advice when the occasion arises. (Not always will the Governor General be an ex-Chief Justice.) The example of the Palace could be followed, but it would be desirable for a group of counsel to be nominated so that in the event of a repetition of this type of crisis their identity can be known and their opinions made public. In this way the Crown would be best sheltered from the charge of political involvement, and the personality of the Governor-General - now greatly exposed by these events - could be protected. Timing of Governor-General's action So much for the issues of constitutionality raised by the Governor General’s action. But were they premature? It has been said that he should have waited until the existing appropriations ran out. Only the Governor General and his Ministers knew whether he had already been called upon, or was about to be called upon, to issue financial warrants under circumstances when their legality could be questioned. But aside from essential facts, which are unknown, there is the question of the dilemma in which he was put by Mr Whitlam on 11 November. On that morning the Labour caucus resolved upon a premature election for half of the Senate, and Mr Whitlam either advised, or was about to advise, the Governor-General accordingly. This was an expedient to give Labour a good chance of gaining control of the Senate. But the essential issues were outside the powers of the Governor General, for the state Governors under Section 12 of the Constitution have to issue the writs for election to the Senate seats in their states, and four Premiers had said that they would not advise their Governors to do this. If this was the situation, the Governor-General could issue writs only for the four territorial seats. This might have given Labour control of the Senate, but it would have taken some weeks during which the constitutional crisis would have become ever more fundamental and government might have broken down. It would not have solved the problem of Supply immediately, nor for at least two months. If the Governor-General had accepted advice to issue the four writs under his jurisdiction he might have been confronted with the consequences of a failure of Supply. Yet if he did not accept that advice, it would be necessary for him to dismiss the Government. It has also been said, in favour of the view that he should have allowed further time to elapse before exercising his constitutional power, that politicians should be allowed enough time to "bluff it out": that Mr Whitlam should have been given the opportunity to see if a Liberal Senator would cross the floor on the issue of Supply, so as to give the Government its majority, or if Mr Fraser's resolve would weaken. This is a matter of judgment as to the gravity of the situation and the plausibility of these considerations in the circumstances. Only the Governor-General was in the position to make that judgment, but it is on this point that the historians will no doubt take final issue. Finally, it has been said that the Prime Minister is entitled to an ultimatum, and that the Governor-General's letter to him of 11 November fell short of that, whatever it reveals of what had gone on beforehand. A Prime Minister is entitled to bluff and to have his bluff called, but the only proper way of calling it is by way of ultimatum. To the contrary case it has been suggested that had the Governor General on 1 November given Mr Whitlam 24 hours in which to advise a dissolution or to tender his resignation (which it seems clear he had committed himself not to do), Mr Whitlam would immediately have asked the Queen for Sir John Kerr's recall, so dragging the monarchy into the controversy. This is speculation, but it points to the delicacy of the situation in which the Governor General found himself. And it overlooks the question of what the Governor General was to do about the advice that was to be tendered to him on that day concerning a half-Senate election. The Governor-General says that he resolved to hand the problem to the people at a general election. This has been challenged as undemocratic because it withdrew power from the hands of the people's representatives. Others have seen it as the most democratic of all the possible solutions to the crisis. The Governor-General has also been criticized for dissolving Parliament when the House of Representatives had demonstrated that only Mr Whitlam enjoyed its confidence. It has been contended that he should have called upon Mr Whitlam to form a new Government. But the Governor-General knew that the vote of no-confidence in the House was a charade. The Senate had passed the Supply Bill in the knowledge that Parliament was to be dissolved. If now Parliament was not to be dissolved and the Labour Party was to be put back in power, the Senate would have been defrauded, and the political crisis would - have been exacerbated. Mr Whitlam could not have expected this result because the rules of the democratic game are not designed to promote political stunts. It is precedent that determines so much of the scope of the exercise of power in the office of the Governor-General, and practice that puts bounds to the royal prerogative. Some of the arguments that were advanced against what the Governor-General did before he did it - which were arguments intended to deter him from doing it or others from saying he ought to do it - have been negated by the fact that he did it. The powers of the Senate to refuse Supply as well as the functions of the Governor-General, have been clarified by the events. What portents exist for the future, and whether in the light of what the future holds the actions of any persons concerned will be judged not to have been prudent, is another matter. Personal position of Monarch There remains one final point to be considered, and that is the personal position of the monarch. The Speaker of the House of Representatives, and also private citizens, wrote to the Queen seeking her intervention. The reply given by the Palace was that the matter was not in the Queen's hands so long as the Governor-General acted within the scope of his powers:
Two things are noteworthy about this: the first is that the Governor-General's actions are his responsibility and not the monarch's. Although there is a delegation of the royal prerogative in the Letters Patent constituting the office of Governor-General the provisions of the Constitution, quoted in this article, amply justify the position taken by the Palace. And the second is that the tenure of the Governor-General is a matter for the Queen acting upon the advice of the Prime Minister. The admission of this by the Palace underscores the difficulties of the Governor-General on 11 November 1975. GOVERNOR-GENERAL'S STATEMENT Canberra, 11 November 1975. - The following is the full text of the statement by Sir John Kerr, Australia's Governor-General: I have given careful consideration to the constitutional crisis and have made some decisions which I wish to explain. Summary: It has been necessary for me to find a democratic and constitutional solution to the current crisis which will permit the people of Australia to decide as soon as possible what should be the outcome of the deadlock which developed over Supply between the two Houses of Parliament and between the government and the opposition parties. The only solution consistent with the Constitution and with my oath of office and my responsibilities, authority and duty as Governor-General is to terminate the commission as Prime Minister of Mr Whitlam and to arrange for a caretaker Government able to secure Supply and willing to let the issue go to the people. I shall summarize the elements of the problem and the reasons for my decision which places the matter before the people of Australia for prompt determination. Because of the federal nature of our Constitution and because of its provisions the Senate undoubtedly has constitutional power to refuse or defer Supply to the Government. Because of the principles of responsible government a Prime Minister who cannot obtain Supply, including money for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority and, indeed, the duty under the Constitution to withdraw his commission as Prime Minister. The position in Australia is quite different from the position in the United Kingdom. Here the confidence of both Houses on Supply is necessary to ensure its provision. In the United Kingdom the confidence of the House of Commons alone is necessary. But both here and in the United Kingdom the duty of the Prime Minister is the same in a most important respect - if he cannot get Supply he must resign or advise an election. If a Prime Minister refuses to resign or to advise an election, and this is the case with Mr Whitlam, my constitutional authority and duty require me to do what I have now done - to withdraw his commission - and to invite the Leader of the Opposition to form a caretaker Government - that is one that makes no appointments or dismissals and initiates no policies, until a general election is held. It is most desirable that he should guarantee Supply. Mr Fraser will be asked to give the necessary undertakings and advise whether he is prepared to recommend a double dissolution. He will also be asked to guarantee Supply. The decisions I have made were made after I was satisfied that Mr Whitlam could not obtain Supply. No other decision open to me would enable the Australian people to decide for themselves what should be done. Once I had made up my mind, for my part, what I must do if Mr Whitlam persisted in his stated intents, I consulted the Chief Justice of Australia, Sir Garfield Barwick. I have his permission to say that I consulted him in this way. The result is that there will be an early general election for both Houses and the people can do what, in a democracy such as ours, is their responsibility and duty and theirs alone. It is for the people now to decide the issue which the two leaders have failed to settle. On 16 October, the Senate deferred consideration of appropriation Bills (nos I and 2) 1975-1976. In the time which elapsed since then events made it clear that the Senate was determined to refuse to grant Supply to the Government. In that time the Senate on no less than two occasions resolved to proceed no further with fresh appropriation Bills, in identical terms, which had been passed by the House of Representatives. The determination of the Senate to maintain its refusal to grant Supply was confirmed by the public statements made by the Leader of the Opposition, the Opposition having control of the Senate. By virtue of what has in fact happened, there therefore came into existence a deadlock between the House of Representatives and the Senate on the central issue of Supply without which all the ordinary services of the Government cannot be maintained. I had the benefit of discussions with the Prime Minister and, with his approval, with the Leader of the Opposition and with the Treasurer and the Attorney General. As a result of those discussions and having regard to the public statements of the Prime Minister and the Leader of the Opposition, I have come regretfully to the conclusion that there is no likelihood of a compromise between the House of Representatives and the Senate, nor for that matter between the Government and the Opposition. The deadlock which arose was one which, in the interests of the nation, had to be resolved as promptly as possible and by means which are appropriate in our democratic system. In all the circumstances which have occurred the appropriate means is a dissolution of the Parliament and an election for both Houses. No other course offers a sufficient assurance of resolving the deadlock and resolving it promptly. Parliamentary control of appropriation and, accordingly, of expenditure is a fundamental feature of our system of responsible government. In consequence it has been generally accepted that a Government which has been denied Supply by the Parliament cannot govern. So much at least is clear in cases where a ministry is refused Supply by a popularly elected Lower House. In other systems where an Upper House is denied the right to reject a money Bill denial of Supply can occur only at the instance of the Lower House. When, however, an Upper House possesses the power to reject a money Bill, including an appropriation Bill, and exercises the power by denying Supply, the principle that a Government which has been denied Supply by the Parliament should resign or go to an election must still apply-it is a necessary consequence of parliamentary control of appropriation and expenditure and of the expectation that the ordinary and necessary services of government will continue to be provided. The Constitution combines the two elements of responsible government and federalism. The Senate is, like the House, a popularly elected chamber. It was designed to provide representation by states, not by electorates, and was given by Section 53 equal powers with the House with respect to proposed laws, except in the respects mentioned in the section. It was denied power to originate or amend appropriation Bills, but was left with power to reject them or defer consideration of them. The Senate, accordingly, has the power and has exercised the power to refuse to grant Supply to the Government. The Government stands in the position that it has been denied Supply by the Parliament with all the consequences which flow from that fact. There have been public discussions about whether there is a convention deriving from the principles of responsible government that the Senate must never under any circumstances exercise the power to reject an Appropriation Bill. The Constitution must prevail over any convention because, in determining the question how far the conventions of responsible government have been grafted on to the federal compact, the Constitution itself must in the end control the situation. Section 57 of the Constitution provides a means, perhaps the usual means, of resolving a disagreement between the Houses with respect to a proposed law. But the machinery which it provides necessarily entails a considerable time lag which is quite inappropriate to a speedy resolution of the fundamental problems posed by the refusal of Supply. Its presence in the Constitution does not cut down the reserve powers of the Governor General. I should be surprised if the law officers expressed the view that there is no reserve power in the Governor-General to dismiss a ministry which has been refused Supply by the Parliament and to commission a ministry as a caretaker ministry which will secure Supply and recommend a dissolution, including where appropriate a double dissolution. This is a matter on which my own mind is quite clear and I am acting in accordance with my own clear view of the principles laid down by the Constitution and of the nature, powers and responsibility of my office. There is one other point. There has been discussion of the possibility that a half-Senate election might be held under circumstances in which the Government has not obtained Supply. If such advice were given to me I should feel constrained to reject it because a half-Senate election held whilst Supply continues to be denied, does not guarantee a prompt or sufficiently clear prospect of the deadlock being resolved in accordance with proper principles. When I refer to rejection of such advice I mean that, as 1 would find it necessary in the circumstances I have envisaged to determine Mr Whitlam's commission and, as things have turned out have done so, he would not be Prime Minister and not able to give or persist with such advice. The announced proposals about financing public servants, suppliers, contractors, and others do not amount to a satisfactory alternative to Supply.
Postscript: The foregoing set the stage for the Australian Federal Election, December 13, 1975 and the following (written pre Christmas 1975) is added for the information of students of the Australian political system. The 1975 Federal Election occurred after one of the most dramatic periods in Australia's political history. The Governor-General, Sir John Kerr, prorogued the Parliament on 11th November 1975, after a constitutional confrontation that followed the refusal by the Opposition Liberal and National Country Parties in the Senate to pass the annual budget. Gough Whitlam was not sacked from the Parliament… his commission to advise the Governor General was withdrawn under the provisions of The Australian Constitution. It was not a “Constitutional” problem but a political party power struggle and the provisions of The Constitution were used to resolve the problem by giving the Power back to the people by way of an election. A NEW, OR FALSE DAWN FOR AUSTRALIA? The most heartening aspect of the Federal Election results is that they proved that the instincts of the Australian people are still relatively sound. But more than sound instincts are necessary to save a people from disaster; they must be reflected in sound policies. The massive electoral backlash against the Whitlam Government was not only a condemnation of the continuing high inflation and associated problems, but was a violent reaction against the style of the Whitlam Government. In May of last year a bare majority was still prepared to give Whitlam "a fair go" unconvinced that Mr. Bill Snedden had any real answers to their problems. But as the overseas jaunts continued, jobs for the boys (and the girls) were the order of the day, the Morosi affair was defended, and the loans scandal developed, decent Australians became increasingly nauseated. The decisive Senate vote for Mr. Brian Harridine, the former Secretary of the Tasmanian Trades and Labor Council expelled from the Labor Party, provided further striking evidence of the revolt of many Labor voters. Mr. Harridine said after his election as an Independent that the Labor Party had been destroyed because it had become the mouthpiece of the Communist Left. "The Whitlam Government tried to set up the leftist ideologies' corporate welfare State and the people rejected it", he said. Mr. Harridine went on to say that "I will be using the Senate's powers to the best of my ability to ensure that the Senate, the States' House, carries out its function of protecting the States." The victory of Brian Harridine was undoubtedly one of the highlights of the Federal Elections. It was a triumph for a dedicated individual against the Marxist forces dominating the Australian Labor Party. The Labor campaign was almost completely centred around Mr. Whitlam. He was the "Great Leader". His photos were even on A.L.P. "How-to-vote-Cards", this irritating many Labor supporters. He became a victim of his own vanity and arrogance as he bathed in the adulation of the frenzied faithful attending his mass rallies, many of these masterminded by Communists. The mindless chanting of "We Want Gough" recalled the cry of "Heil Hitler". There was deep resentment of many a factory floor as "stand-over" tactics were used to try to force a day's pay for the Labor Party. The comparatively uniform national swing against the Whitlam Government demonstrated that electors felt that Gough Whitlam personified all that they detested. This point was made in Mr. Whitlam's own electorate, where the backlash was even more violent. Even more revealing concerning the vulgarity of the Socialists while in office, was the attitude of many when defeated. There was no evidence of the Spirit of "Socialist brotherhood". Mr. Frank Crean, the "stodgy book-keeper" who was responsible for the first of the Whitlam Government's disastrous budgets attacked Mr. Whitlam's leadership and offered himself. Dr. Jim Cairns, the man whose lack of administrative capacity was demonstrated during the loans affair, and whose main contribution to the Labor Party's election campaign appeared to be visiting supermarkets with Junie Morosi to autograph her book, decided that the moment was opportune to settle old scores with Gough Whitlam. While Mr. Clyde Cameron, another hopeless incompetent, gave full vent to his bitter feelings. The sickening truth is that only a few weeks ago Mr. Whitlam's bitter critics were lauding him, a point, which Mr. Fraser would be well advised to contemplate. He has come to office against a background of convulsive events, which make it imperative that he defuse the inflation problem constructively in the near future, or face even more violent electoral reactions than those experienced by Mr. Gough Whitlam. He is on trial as no other Australian Prime Minister has been. Electors are not going to tolerate continuing inflation for three years when they know that just as prices can be increased overnight by more indirect taxation, they can also be reduced overnight by removing indirect taxation. They recall how Dr. Jim Cairns was forced to try to save the Australian car industry early in 1975 by cutting the Sales Tax on cars and trucks by 50 per cent. Prices fell dramatically immediately. Oppressive and inflationary record interest rates could also be reduced immediately. Mr. Fraser would thus retain the support of the thousands of young married homebuyers in outer Metropolitan areas who spurned Mr. Whitlam's Government on December 13th. No rational person expects the Fraser-Anthony Government to solve all Australia's problems immediately. But unless some constructive results are forthcoming during the early part of 1976, the Fraser-Anthony electoral victory will prove to be, not a new, but a false dawn for Australia. No one should feel too sorry for defeated Federal Members of Parliament. Taxpayers are obliged to continue financing them. Mr. John Gorton will receive 75 per cent of the current salary of a private Member, plus his Prime Ministerial pension of $4,500. A total of $19,500. Those who have served three terms will get $10,000 a year for life. Even a defeated one-term Member, like Mrs. Joan Child will receive a lump sum bonus of $7,000. All those entitled to pensions do not have to worry about these being eroded by inflation; they are automatically geared to inflation: Members of Parliament, irrespective of party differences, are most considerate about their own futures. It is doubtful if the new Parliament will last more than 2.5 years at the outside. A Senate Election is due in June 1978. If still Prime Minister, Mr. Fraser would hardly consider a Senate election in May and a full election in December 1978. One of the pre-election sensations was a stinging attack on the Whitlam Government by the new Anglican Bishop of Ballarat, the Right Rev, John Hazlewood. Addressing a rally to celebrate the centenary of the Ballarat diocese on November 25, Bishop Hazlewood described Socialism as "a semi-religious disease". He charged, "Evil was being done at a scale never before experienced and at levels of government and power that we had always supposed to be invulnerable, even sacred. Righteousness, justice, care, understanding, truth, honesty, obedience were among the virtues that Christians had recognised as good for generations, and no matter what smokescreens were put up, they were the basis of stable government". The Bishop's robust attack on Socialism came as a pleasant surprise to many who knew him as the "swinging" Dean of Perth. And sad to say… the Fraser-Anthony Government was even worse than the Whitlam era so paving the way for another dose of socialism under the Hawk Government. Will Australians ever learn?
|