1975_Australian_constitutional_crisis

1975 Australian constitutional crisis

The Australian constitutional crisis of 1975, commonly called The Dismissal, refers to the events that culminated with the removal of Australia's then Prime Minister, Gough Whitlam by Governor-General Sir John Kerr and appointing the Leader of the Opposition Malcolm Fraser as caretaker Prime Minister. It has been described as the greatest political and constitutional crisis in Australia's history.

The crisis began in the upper house of the Federal Parliament, the Senate, where the opposition Liberal-National Country Party coalition had a majority. Using a series of recent scandals as justification, the Senate announced it would defer any voting on the annual supply bills that appropriated funds for government expenditure until the Prime Minister called an election for the House of Representatives. The Whitlam Labor government dismissed such calls as being incompatible with the Westminster tradition of lower house supremacy. Simultaneously, the government pressured Liberal Senators to support the bills, while also exploring alternative means to fund government expenditure. The impasse extended into weeks, with the threat of the government failing to meet its financial obligations being ever present.

On 11 November 1975, the Governor-General dismissed Whitlam as Prime Minister and appointed Fraser as caretaker Prime Minister; the Senate then approved the appropriation bills and Fraser immediately advised Kerr to dissolve both houses and call a federal election, which saw the coalition win a majority in the House of Representatives and form government.

Background

The Whitlam government was elected in 1972 after 23 years of Liberal rule. It held a nine seat majority in the House of Representatives, but did not control the Senate. In accordance with pre-election promises, it embarked on a series of significant reforms, many of which were blocked by the hostile Senate.

In April 1974, in an effort to achieve a government majority in the Senate, Whitlam obtained the concurrence of the Governor-General Sir Paul Hasluck to a double dissolution under section 57 of the Constitution. Labor was returned at the election on 18 May with a reduced majority of five seats. Nor was the Senate result as favourable as Whitlam had hoped, with a theoretical balance of power now falling to two independent senators, one of whom was to join the Liberal party in February 1975. Section 57 provides that, after a double dissolution election, if bills that had been rejected twice by the Senate in the previous parliament were put to the new parliament and were again rejected by the Senate, they could then be put to a joint sitting of both houses. Hasluck's term as Governor-General had ended on 11 July, and the same day Sir John Kerr was sworn in as the new governor-general. It was Whitlam's 58th birthday. Six of the bills that had been the subject of the double dissolution were introduced to the parliament a third time and, as expected, were again rejected by the Senate. On 30 July Whitlam gained Kerr's agreement for a joint sitting, which was set for 6-7 August 1974. The joint sitting, the only one in Australia's history under the terms of section 57 of the Constitution, passed all six bills, including the enabling legislation for Medibank.

At around this time, desperate to raise revenue, certain ministers were seeking finance through unorthodox channels, precipitating a scandal termed the Loans Affair.

Irregular appointments to Senate casual vacancies

Two casual vacancies occurred in the Senate. These arose from: the appointment of New South Wales Labor senator Lionel Murphy to the bench of the High Court on 9 February; and the sudden death of Queensland Labor Senator Bertie Milliner on 30 June. It fell to two non-Labor state premiers, Tom Lewis of New South Wales and Joh Bjelke-Petersen of Queensland, to choose their replacements. Contrary to accepted tradition, they both chose candidates who opposed the Whitlam government. On 27 February, the New South Wales Parliament appointed Cleaver Bunton as a replacement senator for New South Wales. Bunton was not a member of any political party. On 3 September, Bjelke-Petersen, having requested a list of candidates from which to choose, had rejected the Labor Party's sole proffered candidate, Mal Colston. Instead, he chose French-polisher union president, Albert Patrick Field, with the Queensland Parliament approving the choice. Field was a long-standing Labor Party member but was known to be openly critical of the Whitlam government.

The actions of both premiers went against a convention, unbroken since 1949 (when the Senate adopted proportional representation), under which a senator who died or resigned mid-term was replaced by a nominee chosen by the departed senator's political party. However it was also the practice in some cases that the party provide a list of several nominees, and the relevant state parliament would make the choice.

Field had resigned from the Queensland Public Service, but at the time of his appointment to the Senate, the two weeks' notice required by the QPS had not expired. This could have meant that he was still technically employed by the QPS, and thus holding an office of profit under the Crown, which would have made him constitutionally ineligible to be chosen as a senator. To test this, the Labor Party challenged his appointment in the High Court. Field was on leave from the Senate, and unable to exercise a vote for the duration of the crisis. This left the Senate numbers at 30 Coalition, 27 Labor, and two independents (Bunton and Steele Hall, both of whom supported Labor on the contentious supply votes).

Deferment of supply by the Senate

Claiming financial mismanagement, Opposition senators declined to vote on the passage of the Government's budget. They maintained that, having lost the support of Parliament, the Prime Minister was obliged to resign and to advise the Governor-General to call an election.

The Liberals defended their action in blocking supply by arguing that Whitlam himself had openly flouted conventions. In their opinion, the 'Loans Affair' (among other issues) justified their use of any legal means, however unconventional, to force what they saw as a reckless and incompetent government out of office. They also pointed to polls that indicated that they would probably win an election if one were held at that time.

Whitlam, on the other hand, had a low regard for the status of the Senate. It had been long-standing Labor policy (implemented in Queensland) to abolish upper houses as they were considered anti-democratic. He adamantly insisted that the upper house had no power to dictate terms for the election of the directly-elected lower house. The lower house, the 'house of the people', was more democratic and representative than 'the house of the states' and thus, in a modern democracy, had to be supreme. Whitlam emphasised the long-established principle of the Westminster system that, as long as a government has a majority in the lower house, it is entitled to stay in office and serve its full term. Paul Kelly, in his book November 1975, stated that Whitlam viewed the crisis as a chance not only to force Fraser into a humiliating back-down, but also to permanently and definitively establish the supremacy of the lower house.

Public opinion during the months of October and November was mixed. The Whitlam government remained unpopular largely because of economic problems but also because of the scandals; however, opinion polls showed that, as the deadlock wore on, a growing majority blamed the Opposition for the crisis and wanted it to pass the budget bills.

The dismissal

The situation was complicated by the relationship between Kerr and Whitlam. Kerr had long felt that he had been taken for granted and not given the respect due to his office. Originally a Labor sympathiser with ambitions to gain parliamentary office earlier in his life, Kerr's views had become much more conservative over the years.

Constitutional precedent had long established that the Governor-General was expected to take no action except upon 'advice' (de facto direction) received from the Prime Minister, and Whitlam confidently assumed this would be the case during the crisis. However, according to the Australian Constitution, and in accordance with established practice in other Westminster style constitutional monarchies, the Governor-General still possessed wide ranging reserve powers to dissolve parliament and sack the government on his own initiative, in certain limited circumstances. These reserve powers had not been carried out by any monarch since King William IV in 1834, and it was a matter of academic and legal debate as to whether they still existed in reality.

It would later become apparent that Kerr and Whitlam were at odds over whether the Governor-General had the power to act independently of the Prime Minister in times of crisis.

On 30 October, Kerr proposed a compromise solution to Whitlam and Fraser, in which Fraser would let the budget pass in return for Whitlam abandoning plans to call an early Senate election, but Fraser rejected this. On 2 November Fraser offered to pass the budget if Whitlam would agree to call an election before the middle of 1976, but Whitlam in turn rejected this, citing the constitutional convention that only he, as Prime Minister, could advise the Governor-General to call an election. There is considerable evidence that Kerr had discussions with Fraser independently, against Whitlam's advice. When Whitlam rejected Fraser's proposal, it seems, Kerr decided that Whitlam was the one unwilling to bend.

By November, Fraser and the Opposition began to ramp up pressure on Kerr to take action against Whitlam, threatening to criticise him publicly if he did not do so. Around this time, Fraser and Liberal MPs began calling for Kerr to use his reserve power to dismiss Whitlam, claiming that this was the only constitutional option if a Prime Minister who loses supply does not call an election or resign.

A precedent had been set in Australia for the use of the reserve powers at a state level in the dismissal of New South Wales Premier Jack Lang by Sir Philip Game - but in this situation Game had warned Lang that his dismissal was imminent. Kerr was unwilling to warn Whitlam that he was contemplating dismissing him, fearing that Whitlam's reaction would be to advise Elizabeth II, the Queen of Australia, to remove him as Governor-General instead - advice the Queen would be compelled by convention to follow. Though this might appear to be an unlikely proposition, it was constitutionally possible, and in the peculiar circumstances of the crisis could not have been ruled out. The senior state Governor at the time, Sir Roden Cutler, Governor of New South Wales, gave Kerr the advice that he should warn the Prime Minister of his actions. Kerr refused to take such advice. Kerr subsequently claimed that he was not so much fearful of the loss of his own position but of the prospect that the monarch could become involved in Australian domestic politics, doing severe damage to her constitutional status.

This prompted Kerr to seek advice from the Chief Justice of the High Court of Australia, Sir Garfield Barwick. On 9 November, Barwick advised Kerr that the Governor-General did in fact have the constitutional power to remove Whitlam from office. At this point, it appears that Kerr made up his mind to dismiss Whitlam. This action was criticised after the event by Whitlam on two grounds: firstly, since the High Court does not issue advisory opinions, Barwick was not speaking with constitutional authority but only as an individual, and secondly, Barwick was in fact a former Attorney-General in a Coalition government and thus could not be considered impartial. Whitlam as Prime Minister had specifically requested Kerr as Governor-General not to seek Barwick's advice. Kerr maintained that he did what was necessary to resolve the crisis.

Kerr also met with Fraser. Fraser argued that the Senate represented the displeasure of the Australian people with the government's management; that there was a practical impasse for the government; and, stressing the necessity for action well before government revenue dried up, that if the Governor-General did not act decisively then the Prime Minister could without notice dismiss the Governor-General and maintain the deadlock indefinitely.

On the morning of 11 November, Whitlam arranged to see the Governor-General at Yarralumla. The Prime Minister arrived without the knowledge that Fraser had also been summoned but had arrived earlier. Whitlam also carried with him a letter requesting official approval for a half-Senate election in order to break the deadlock.

However, just as Whitlam was formally tendering his advice that Kerr request the State Governors to issue writs for a half-Senate election, Kerr cut him off and asked him if he intended to advise a House election as well. When Whitlam said no, Kerr stated that there was no prospect of the crisis being resolved otherwise. He then informed Whitlam that he was terminating his commission as Prime Minister and handed him a pre-written letter to that effect--thus preempting any plans Whitlam might have had to advise the Queen to dismiss Kerr.

A few minutes later, Kerr summoned Fraser. At this point, Kerr asked Fraser whether, if commissioned as Prime Minister, he would 1) pass the budget; 2) advise a double dissolution election (in which both the House and Senate would be up for election) and 3) enact no new policies, make no appointments and initiate no inquiries into Whitlam's government pending the election. When Fraser answered "yes" to all questions, Kerr commissioned him as the caretaker Prime Minister of Australia. Years later, Fraser claimed that Kerr had asked him the same questions earlier in the day over the phone, something which Kerr adamantly denied in his memoirs.

Fraser then instructed his Senators to pass the budget and advised Kerr to call a double dissolution election for 13 December. The Liberal and National Country Party Senators voted to pass the Supply bills, along with the Labor Senators. However, the Labor Senators were largely not yet aware that Whitlam and his government had been dismissed (because Whitlam, plotting to defeat Fraser on the floor of the House of Representatives, had omitted to tell them). In any case it would have been useless for the Labor Senators to vote against supply. Fraser advised the House that he had been appointed Prime Minister. The House passed a motion of no confidence in Fraser, who had left the House shortly after his announcement and did not participate in the debate. The Speaker, Gordon Scholes, suspended the session in order for him to call on Kerr to advise him that Fraser did not have the confidence of the House, and to request him to withdraw Fraser's commission and invite Whitlam to form a new government. By the time Kerr received Scholes at 4:45 p.m., however, Kerr had already given Royal Assent to the Supply bills and dissolved Parliament on Fraser's advice, so the no confidence motion was rendered null and void.

Amongst general din and shouts from hecklers amongst the crowd that had quickly gathered as the news had spread, the Official Secretary to the Governor-General, David Smith read out the proclamation of the dissolution of Parliament from the steps of Parliament House. The proclamation ended with the words "God Save the Queen". Whitlam then addressed the assembled press and onlookers:

Well may we say "God save the Queen" because nothing will save the Governor-General. The proclamation you have just heard read by the Governor-General's Official Secretary was countersigned "Malcolm Fraser", who will undoubtedly go down in Australian history from Remembrance Day 1975 as Kerr's Cur.

Aftermath

In the ensuing campaign, the ALP's focus was predominantly on the asserted illegitimacy of the dismissal (with the slogan of "Shame Fraser, Shame"), while the Coalition focused on Labor's economic management. Although some people expected a major backlash against Fraser in favour of Whitlam (who had launched his campaign by calling upon his supporters to "maintain your rage"), based on the fact that opinion polls in October and early November had shown most voters tended to blame Fraser for causing the crisis and to disagree with his tactics, once an election was called the majority of people focused on the economy and accepted the Liberals' line that confirming the change of government was necessary to "turn on the lights" (the Liberal election slogan). Despite the passion of die-hard Labor supporters, furious at what they saw as an Establishment plot to destroy a Labor government, the ALP suffered its greatest ever loss (losing 7.4% of its previous vote at the 1974 election) against Fraser's Coalition. This might be seen as a popular endorsement of Kerr's actions. However, Kerr became a reviled figure among ALP supporters, was never again received anywhere in Australia without protest, and resigned from office in December, 1977. Fraser directed Kerr's successor to appoint Kerr to the diplomatic post of Australian ambassador to UNESCO, but public protest was so strong that Kerr never took up the position. After his resignation, he mostly lived in self-imposed exile in Surrey, England.

Legacy

The crisis is significant in analysing Westminster systems for the large number of conventions that were involved. Constitutional texts cannot cover every conceivable reality, and the political process almost always relies to some extent on custom and convention in operation. The Australian Constitution, drafted by those steeped in the British tradition of an unwritten constitution, relies on established unwritten customs to determine and guide the application of what appears in the Constitutional text. Some have seen expressed in the 1975 crisis a fundamental contradiction deriving from the Australian Constitution's melding of the principles of the Westminster system, with a dominant lower house that determines the government, and United States-style federalism, with a "states' chamber" (the Senate) with powers very nearly equal to those of the House of Representatives.

The Australian crisis illustrates how unwritten conventions can operate flexibly during a crisis, seen by some as a benefit, while being used by others as an argument for the codification of the reserve powers. The latter view is not accepted by many prominent Australian constitutional scholars, who argue that the flexibility is needed, and would be lost in codification. It is argued that in a system where the Houses have equal power, a head of state with wide reserve powers is required to serve as umpire. Codification of powers essentially eliminates the vice-regal ability to use discretion in their exercise, and these scholars argue this discretion is necessary in order to resolve unforeseen difficulties.

Although the crisis was described as Australia's most dramatic political event since Federation in 1901, it caused no disruption in the services of government; it saw the parties remaining committed to the political and constitutional process by contesting the subsequent election and accepting the result. Further, in some of Whitlam's reflections of this period in the following years, he himself often referred to it as a "political" crisis, rather than a "constitutional" crisis. In either case, the crisis did precipitate one constitutional change, passed by referendum in 1977, that requires that State Governments fill Senate vacancies with a member of the party of the original holder of the seat, if they choose to fill the vacancy at all.

In the years afterwards, some Australian republicans have used the crisis as an argument for change, on the basis that Australia's current constitution is flawed over (a) the powers of the Upper House with regard to supply and (b) the lack of security of tenure of the Governor-General in dealing with a crisis. No attempts to constitutionally deny the Senate the power to block supply have been put to referendum, despite multiple changes of government since 1975. Strictly the crisis could have occurred whether Australia was a republic or a constitutional monarchy, since the structural causes of the crisis were the approximately equal powers of the two Houses of Parliament and the Governor-General's ability to invoke reserve powers - powers which would be transferred to the president under most models for an Australian republic. Whether and in what form these reserve powers would exist under any potential future republic is an as yet undecided issue.

Prior to the constitutional referendum of 1988, the convention responsible for deciding on which amendments would be put to a popular vote rejected a proposal to introduce an amendment to strip the Senate's power to block supply.

The question of whether the Senate would ever block supply again remains uncertain. For most of the time from 1980 to 2004, the balance of power in the Australian Senate was held by the Australian Democrats who disavowed ever blocking supply to a government, thus reducing the question's urgency. At the 2004 elections the Liberal/National Coalition government won control of the Senate, so the question became academic. After their loss at the 2007 election, the Coalition controlled the Senate until 30 June 2008, but blocking supply has not been an issue. From 1 July 2008 the balance of power in the Senate will be in the hands of the Australian Greens Party, and independents.

Fraser and Whitlam have not kept up any enmity and are reconciled to the point where they have, on occasion, spoken jointly on political issues such as the referendum of 1999 as to whether Australia should become a republic. They have even appeared in the same spirit, as a trio with ex Prime Minister Bob Hawke, on an Australian television interview program.

Journalist Paul Kelly has produced a series of books generally regarded as forming the most comprehensive account of the crisis. His most recent is entitled November 1975. While Kelly criticises both Fraser and Whitlam heavily, and points out the flaws in the Australian constitutional system that made it possible, he ultimately shifts the majority of the blame on Kerr for doing little to encourage a negotiated solution to the crisis.

A dramatised version of events exists in the form of a television mini series, The Dismissal, screened in 1983. Amongst those with directing credits are George Miller and Phillip Noyce, with cinematography by Dean Semler. Paul Kelly's book The Unmaking of Gough (first published in 1976) was re-released under the title The Dismissal in 1983 as a tie-in to the television series.

Alleged role of the United States government

A minority of commentators believe the United States was involved.

Following the end of the Second World War, American influence supplanted that of the United Kingdom in Australia. According to Tony Douglas,

A cable from a senior CIA official and Task Force 157 member, Ted Shackley, on 10 November accused Whitlam of being a security risk and asked ASIO to do something about it. The Head of the Defence Department, [Sir] Arthur Tange, described him as "the greatest risk to our nation's security that there has ever been."

Christopher Boyce, a former U.S. civilian defense contractor for the CIA and a convicted Soviet spy, claimed that the CIA wanted Whitlam removed from office because he wanted to close United States military bases in Australia, including Pine Gap. Boyce said that the US government considered that "Mr. Whitlam's Government was a threat" because of Whitlam's interest in US security operations on Australian territory. Boyce also claimed that Sir John Kerr was an agent for the CIA. While working at the message-routing center of TRW, Boyce read a message sent to the CIA implicating the U.S. government with interfering with the Australian elections.

In 1977, a reported message from U.S. President Jimmy Carter to then prime minister Malcolm Fraser formally denied 'improper interference' by the CIA in Australian government. However, this assurance "covered only current activities rather than what may have occurred under the previous Whitlam government.

Few people consider the United States government pressure to have been a significant factor in the dismissal of Whitlam by Kerr, and mainstream historians generally do not even mention it. Whitlam himself appointed Kerr as Governor-General, the Liberals blocked supply, and the Australian public had the opportunity to vote Whitlam back in immediately after the dismissal. None of these factors were felt to have been influenced by a foreign power.

Footnotes

References

Tony Blackshield, "Dismissal of 1975", in Blackshield, Coper and Williams, Oxford Companion to the High Court of Australia (Oxford University Press, 2001) ISBN 0-19-554022-0
Paul Kelly, November 1975 (Allen & Unwin, 1995) ISBN 1-86373-987-4