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May 01st 2013 print

David Smith

Labor’s Selective Constitutional Conventions

On February 23 the Australian National University hosted a seminar titled “Visions and Values of Australia’s Governors-General”. The seminar was opened by the university’s Chancellor, Professor Gareth Evans. No doubt the organisers had hoped for a scholarly contribution from a distinguished professor. Instead, what they got was a polemical diatribe against a governor-general who had carried out his constitutional duty, from a former politician who had held ministerial appointments in the Hawke and Keating governments. You can take the man out of politics but you can’t take politics out of the man.

In typical lawyer fashion, Evans bemoaned the fact that the Australian Constitution makes no mention of the office of prime minister or the institution of cabinet. Oh dear! But that hasn’t stopped us from having them.

Another constitutional scholar, S.E.K. Hulme QC, has a different take on our Constitution. In a 1992 address he observed:

One provision of the Constitution makes the Executive power exercisable by the Governor-General. Another requires the Governor-General to summon an Executive Council. Another empowers him to appoint officers as Ministers of State, and says that they shall be members of the Executive Council, and that they shall not hold office for more than three months unless a member of one House or the other. There is little more. Not a word about parties, about majorities, about the election of ministers by Caucus, about resigning if a vote of no confidence is carried, or about any of a host of such matters. In England and in the Australian colonies these matters were governed by constitutional convention, and the Founding Fathers took it for granted that when on 1 January 1901 the words they had written came to life, they would find those conventions waiting to attach.

In his seminar paper Evans pointed out that “the symbolic role of the Governor-General … [as] the personal manifestation of the unity and identity of the country” and the “day to day community engagement role” are also not mentioned in the Constitution but are “left to be assumed”. That has not stopped governors-general from fulfilling those very important roles, and Evans named some of those who filled it exceedingly well.

The office of governor-general has been described as “the highest single expression in the Australian governmental structure of the idea that Australians of all parties and all walks of life belong to the same nation”. Evans attributes the words to Sir Zelman Cowen, but in fact they are Sir Paul Hasluck’s. Evans notes that “neither this actual language, nor anything remotely like it, appears in our 1900 founding document”. To which I can only add, “nor should it”.

Given that it has been suggested that John Howard might be appointed as our next governor-general, it was interesting to see what Evans had to say about the appointment of former politicians to the vice-regal office. He noted that Sir William McKell, Lord Casey, Sir Paul Hasluck and Mr Bill Hayden had been excellent governors-general, “two from each side of the aisle”, and he thought it fair to say that notwithstanding their long histories of engagement … in party political warfare, each of them made the transition to the role of Governor-General—which should of course be seen to be non-partisan and to symbolize the unity of the country—with dignity, competence and effectiveness.

No argument from me with that. However, when Evans got to Sir John Kerr he allowed his selective memory and his political amnesia to take over. He described Sir John’s tenure as “catastrophic”, but I doubt that the vast majority of the Australian people who so decisively rejected Gough Whitlam and his government in landslide defeats at the 1975 and 1977 elections would agree. According to Evans,

Sir John’s dismissal of the Whitlam Government in November 1975, and commissioning the Leader of the Opposition Malcolm Fraser to lead the country to an immediate election, in circumstances where the crisis caused by the Senate’s blocking of supply had far from run its course, and in complete defiance of all hitherto accepted understandings of the constitutional conventions concerning acceptance of the advice of the serving government, generated bitter political divisions in the country which, on this subject, have barely healed to this day. (Emphasis added—I shall return to the words in italics.)

Evans continued:

I have written and edited books on all this in my previous incarnation as a constitutional lawyer and am afraid that my views on Kerr’s values, vision and understanding of the office have not mellowed—either as a Labor politician, with all the emotional baggage that might be thought to go with that, or as a lawyer being as intellectually objective as I can be.

Well, let me assure Evans that there are aspects relating to the blocking of supply by the Senate that he has not written about; that his emotional baggage as a Labor politician will have prevented him from writing about them; and that his intellectual objectivity has been severely compromised as a consequence.

I begin with Evans’s complaint that Sir John’s intervention came when “the Senate’s blocking of supply had far from run its course”. Indeed it had, but the decision to bring matters to a head on November 11, 1975, was not made by the Governor-General but by the Prime Minister. That was the day when Whitlam attempted to give the Governor-General the stupidest piece of advice imaginable: he intended to advise the Governor-General to order a half-Senate election to be held on December 13. Could Whitlam have believed that the election of senators who would not have taken their seats in the Senate until 1 July 1976—six and a half months later—would solve the nation’s immediate financial and economic crisis caused by the government having already started to run out of money?

There was another factor that Whitlam had failed to take into consideration. While it is the governor-general who names federal election dates on the advice of the prime minister, it is the state governors who issue the writs for the holding of elections of senators, on the advice of their respective premiers. And four of the six premiers had already announced that they would refuse to give that advice.

An astute prime minister would have realised that a half-Senate election was simply not possible, and that even if one had been held, it would not have solved the supply crisis. If Whitlam had needed more time to negotiate a solution he could have had it, but he chose instead to give the wrong advice at the wrong time. It was Whitlam, not Kerr, who stopped the supply crisis from running its course. Whitlam was hoist with his own petard.

If Evans is on shaky ground over just who stopped the supply crisis from running its course, he is in worse trouble when we come to look at just who defied hitherto accepted understandings of constitutional conventions.

Throughout the supply crisis the Whitlam government’s attack was on the Senate’s refusal to pass the government’s budget. Whitlam’s view was that the Constitution and its associated conventions vested control over the supply of money to the government in the House of Representatives, and that the actions of the Senate in blocking that supply of money were a gross violation of its role. This is not true. Control over the supply of money to the government is vested in the Parliament, and that includes the Senate. J.R. Odgers, a distinguished Clerk of the Senate, wrote in the 1976 edition of Odgers’ Australian Senate Practice: “Any contention that there is a convention that the Senate should not defer or reject money Bills is insupportable.”

To put this matter beyond doubt, on September 30, 1975, the High Court handed down its judgment in Victoria v The Commonwealth. Four of the six judges who heard the case held that, except for the constitutional limitation on the power of the Senate to initiate or amend a money bill, the Senate was equal with the House of Representatives as a part of the Parliament, and could reject any proposed law, even one which it could not amend. The judges who expressed these opinions were Sir Garfield Barwick, the then Chief Justice; Sir Harry Gibbs and Sir Anthony Mason, who each, in turn, became Chief Justice; and Sir Ninian Stephen, who later became Governor-General. As these judgments were of crucial importance to the debate then raging in the Parliament, relevant parts of the judgments were incorporated in Hansard on October 30, 1975. Yet still Whitlam and his acolytes have continued to rail against the Senate.

Although Whitlam was constantly reminding the Governor-General, both privately and publicly, that he could act constitutionally only on the advice of his prime minister, that he was not entitled to seek external advice, and that he could not consult the Chief Justice of the High Court, the existence of the governor-general’s reserve powers, which may be exercised contrary to, or without, the advice of the prime minister, would have been, or should have been, well known in Labor circles. One of the most definitive and scholarly works on the subject, entitled The King and His Dominion Governors, was written in 1936 by Dr H.V. Evatt. In 1940, Evatt, who was then a Justice of the High Court of Australia, and later became the national leader of the Australian Labor Party, wrote in the Canadian Bar Review:

a long course of practice tends to negative the proposition that the Governor-General of the Commonwealth of Australia or the Governor of a State is a mere automaton in the hands of Ministers who have lost, or are about to lose, the support of Parliament.

More to the point, Whitlam’s advice to Sir John Kerr was contrary to Labor’s quite different view in 1951, when Prime Minister Menzies sought a double dissolution from Governor-General Sir William McKell. Labor’s view then was that the Governor-General was not obliged to accept the Prime Minister’s advice and indeed should not accept it unquestioningly; that he should not simply accept the advice of the first two law officers of the Crown; that he should instead seek independent legal advice; and that he should seek it from the Chief Justice of the High Court, Sir John Latham.

When Evans refers to constitutional conventions, does he mean those that apply when Labor is in government, or those that apply when Labor is in opposition?

Whitlam has continued to claim, again quite falsely, that Sir John had ignored a joint legal opinion from the Attorney-General, Kep Enderby, and the Solicitor-General, Sir Maurice Byers. As the 1975 crisis continued, and as calls mounted in the Parliament and in the media for the Governor-General to resolve it, Sir John asked Whitlam for a joint legal opinion from the Attorney-General and the Solicitor-General. On November 6 the Attorney-General called on the Governor-General with a document that had been prepared by the Solicitor-General. At the top it was headed “Joint Opinion”. At the bottom it had been signed by the Solicitor-General, and there was a place for the Attorney-General to add his signature. The Attorney-General told the Governor-General that there were parts of the opinion with which he did not agree and that he could not sign it. Instead, he took out his pen, wrote the word “Draft” at the top of the document, crossed out the Solicitor-General’s signature, and handed the now worthless document to the Governor-General. Enderby went on to say that he proposed to prepare another joint legal opinion with which he could agree, and that he would send it to the Governor-General as soon as possible. That joint legal opinion never came.

Finally, there is one aspect of the 1975 supply crisis that Evans has not written about, that he did not mention in his seminar address, and that Whitlam and the media have ignored as well. I refer to the precedents that the Australian Labor Party, and Whitlam, established between 1950 and 1970 for what Fraser did in 1975.

On May 12, 1967, Senator Lionel Murphy, the Leader of the Labor Opposition in the Senate, had this to say in the Senate:

The Opposition opposes this Bill. There is no tradition, as has been suggested, that the Senate will not use its constitutional powers, whenever it considers it necessary or desirable to do so, in the public interest. There are no limitations on the Senate in the use of its constitutional powers except the limits self-imposed by discretion and reason. There is no tradition in the Australian Labor Party that we will not oppose in the Senate any tax or money Bill, or what might be described as a financial measure. Our tradition is to fight, whenever and wherever we can, to carry out the principles and policies for which we stand. We are not circumscribed by any notions which arose elsewhere in connection with other institutions … We in the Senate are democratically elected by the people of the States. If we consider it to be in the public interest that a measure be rejected, who gives us the right to refrain from doing so under some pretended notion that the Senate cannot reject a tax or money Bill?

On June 12, 1970, the Leader of the Opposition, Gough Whitlam, had this to say in the House of Representatives:

The Prime Minister’s assertion that the rejection of this measure does not affect the Commonwealth has no substance in logic or fact … The Labor Party believes that the crisis which would be caused by such a rejection should lead to a long term solution. Any Government which is defeated by the Parliament on a major taxation Bill should resign … This Bill will be defeated in another place. The Government should then resign.

On June 18, 1970, Senator Murphy had this to say in the Senate:

For what we conceive to be simple but adequate reasons, the Opposition will oppose these measures. In doing this the Opposition is pursuing a tradition which is well established, but in view of some doubt recently cast on it in this chamber, perhaps I should restate the position. 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. The Australian Labor Party has acted consistently in accordance with the tradition that we will oppose in the Senate any tax or money Bill or other financial measure whenever necessary to carry out our principles and policies. The Opposition has done this over the years, and in order to illustrate the tradition which has been established, with the concurrence of honourable senators I shall incorporate in Hansard at the end of my speech a list of the measures of an economic or financial nature, including taxation and appropriation Bills, which have been opposed by this Opposition in whole or in part by a vote in the Senate since 1950.

At the end of his speech Senator Murphy tabled a list of 169 occasions when Labor Oppositions had attempted to oppose money bills in the Senate for the sole purpose of forcing the government of the day to face the people at an early election.

On August 25, 1970, the Labor Opposition launched its 170th attempt since 1950. Whitlam had this to say in the House of Representatives:

Let me make it clear at the outset that our opposition to this budget is no 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 this Budget and to destroy the government which has sponsored it.

As Jack Kane, a former Democratic Labor Party Senator for New South Wales, wrote in 1988:

There is no difference whatsoever between what Whitlam proposed in August 1970 and what Malcolm Fraser did in November 1975, except that Whitlam failed … Senator Murphy, for Whitlam, sought the votes of the DLP senators, unsuccessfully. That is the only reason why Whitlam did not defeat the 1970 budget in the Senate and thus fulfil his declared aim to destroy the Gorton government.

So when Whitlam told the nation that the Senate’s action in refusing supply to his government was unprecedented, he may literally have been telling the truth, but he was not telling the whole truth. While 1975 was the first successful attempt, the truth of the matter is that, over a period of twenty years, Labor had established 170 precedents for what Fraser did in 1975, and Whitlam himself had been the architect of the last two of those attempts, against the Holt government in 1967 and against the Gorton government in 1970. Clearly, 1975 was a case of the biter bitten. The Labor Party’s mythology about the 1975 supply crisis and the dismissal of the Whitlam government has no basis in fact.

The next time Evans writes or lectures about the 1975 supply crisis and the “hitherto accepted understandings of the constitutional conventions” I hope he will remember that both Whitlam and Murphy declared in Parliament that a government that cannot obtain supply from the Senate must resign and recommend an immediate election. I also hope that Evans will be less selective and more forthcoming about all of our constitutional conventions, and not just confine himself to those that sustain his political biases and prejudices. As Chancellor of the Australian National University he owes his audiences nothing less.

Sir David Smith was Official Secretary to five governors-general from 1973 to 1990. He has held the following appointments at the Australian National University: Visiting Fellow in the Political Science Program in the Research School of Social Sciences, Visiting Fellow in the Faculty of Law, and Visiting Scholar in the College of Law. His book Head of State: the Governor-General, the Monarchy, the Republic and the Dismissal (Macleay Press, 2005) was launched by former Governor-General Mr Bill Hayden.