QED

It Was Politics, not the Constitution

When events are politicised they often acquire names that do not properly reflect what really happened.  One example is the so-called Rum Rebellion, which was a coup d’état in 1808 to overthrow the governor of NSW, William Bligh.  In reality it arose from a power struggle between the governor and entrepreneurs such as John Macarthur and was initially referred to as the Great Rebellion.  However in 1855, a Quaker, William Howitt, published a popular history in which as a fierce opponent of the ‘demon drink’ he coined the name ‘Rum Rebellion’, which has stuck to the event ever since.

We can note a similar situation with the so-called ‘Constitutional Crisis’ of 1975, although in that case the misrepresentation occurred almost immediately.  The events in 1975 did not amount to a constitutional crisis.  The Constitution was clear and worked as it was designed to work.  When a government can’t get a supply bill passed by Parliament, this creates a political crisis, not a constitutional one.

See also: John de Meyrick and David Smith on The Dismissal

Under the Australian Constitution, legislative power is vested in Federal Parliament, consisting of the Queen, the Senate and the House of Representatives.  Proposed laws appropriating revenue or moneys, or imposing taxation cannot originate in the Senate, and the Senate cannot amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.  However, in other respects, the Senate and the House of Representatives have equal power.

In this regard, the democratically elected Australian Senate may be contrasted with the unelected British House of Lords, which under the Parliament Act 1911 lost the power to reject or amend any legislation in a way unacceptable to the House of Commons.  As far as supply is concerned, an opposition in control of the Senate cannot amend but may choose to pass, reject or defer consideration of the relevant bills.

In 1975 the Federal Government was in trouble.  Ministers were being sacked or sidelined and the final blow to its image was the Loans Affair, an attempt to borrow money, bypassing the Treasury, from Middle Eastern sources through the agency of a more than somewhat shady small-time Pakistani commodity dealer, Tirath Khemlani.  The Opposition, after much huffing and puffing about extraordinary circumstances, but having the required numbers in the Senate, announced that it was going to defer passing supply unless a general election was called.  Gough Whitlam, knowing that public opinion had turned against his government, chose to fight with every means at his disposal any and all calls to hold a general election.

At this point, we should consider the critical role of conventions in our Westminster system.  Of course, no convention can override the express provisions of the Constitution, but they have developed over the years to ensure its smooth and civilised operation and are generally not amenable to legislation, as this would constrict their capacity to meet situations no one anticipates.

Michael Connor: Inventing the Dismissal and
Stumbling on the Steps of History

Two conventions are relevant here.  First, if the parliament refuses Supply the government should resign or call a general election to resolve the matter and, second, the Governor-General acts in accordance with ministerial advice.

In his book, The Framers of the Australian Constitution: Their Intentions, Dr Frank McGrath, a former Chief Judge of the Compensation Court of NSW writes:

It is clear from an analysis of the Convention debates that the framers of the Constitution understood that the principles of responsible government needed modification to adapt them to a federal structure.  There is no doubt that they intended that Supply could be refused by the Senate, and that such a refusal could force the government either to resign or advise an election of the House of Representatives.

The debates also make it clear that the framers of the Constitution were aware of the potential dangers this posed.

Parliament includes both the Senate and the House of Representatives.  The Senate has the power to pass or reject (but not amend) an appropriation bill.  In accordance with convention, Whitlam should have sought a general election when the Senate refused to pass Supply.  None of this was new.  Oppositions from both sides had previously threatened to bring down both state and federal governments by blocking Supply but had generally lacked the numbers to bring this about.  This time the opposition actually had the numbers, but Whitlam refused to comply with convention.  The opposition stuck to its guns as money to pay public servants and government creditors was due to run out by the end of November.  The government developed a scheme to borrow money from the banks to get around this, but it was generally believed that this was probably illegal.

Finally, Whitlam informed the Governor-General that after the Remembrance Day ceremony on November 11, he would visit him at Government House to advise the calling of a half-Senate election for December 13.  However, such an election would not resolve the supply situation, as money would run out before the Senate was reconstituted and, in any case ,whether or not the new Senate would pass supply could not be known.

As noted, in accordance with constitutional convention, a Governor-General acts in accordance with ministerial advice, so the only way to resolve this conundrum was to change the advising minister.  Thus, when Whitlam saw Kerr on November 11, Kerr had no option but to dismiss him before he formally tendered his advice, which is what he did.  Fraser was then commissioned as caretaker prime minister on the basis that he would obtain Supply and advise a double-dissolution election, which he also did.

Thus it was Whitlam himself who in the final analysis determined the date and timing of his dismissal from office.

Of course, numerous red herrings have been scattered around to confuse matters — one of them was the allegation that Kerr’s action in obtaining advice from Chief Justice Sir Garfield Barwick was improper.   This is more nonsense. Since Federation, chief justices have repeatedly advised both governors-general and state governors on constitutional matters.

 David Smith: Australia’s Head of State: The Definitive Judgment

Another red herring was John Pilger’s fanciful assertion that the CIA and MI6 were involved in the dismissal.  This is not to say that many in the CIA weren’t pleased, but so were many others.  For example, in his memoirs, From Third World To First: The Singapore Story: 1965-2000, the Prime Minister of Singapore, Lee Kuan Yew, wrote of one dispute with Whitlam, “I was prepared to expose his motives and show him up as a sham white Afro-Asian … It was a relief when their governor-general removed Whitlam.”  Yet no one has ever claimed that Lee played any role in the dismissal.

The recently released letters between Buckingham Palace and Yarralumla fully reveal what anyone of any sense already knew – that the Queen had no role in Whitlam’s dismissal.  This should have been the end of the matter.  However, in an article in The Australian of July 20, 2020, constitutional lawyer Professor George Williams writes:

The release of the Palace Letters has shone light on a flaw in our system of government. This is the possibility that the governor-general can dismiss a prime minister who enjoys the support of the House of Representatives. Sir John Kerr said he exercised such a power to dismiss Gough Whitlam on November 11, 1975. However, it is not clear that such a power even exists.

Later in the article, he writes:

Kerr’s dismissal of the Whitlam government using a reserve power that may or may not exist remains an open wound in Australia’s democracy. 

That a law professor would ignore the fact that our Parliament is more than just the House of Representatives is extraordinary and takes no account of the fact that, in giving specific powers to the Senate, the Constitution explicitly modifies the Westminster system of responsible government as applied in Australia.  Further, that a power may not exist in the face of a clear demonstration that it does shows a disconnection from reality.  That the dismissal should remain an open wound in Australia’s democracy when it resulted in Australians going to the polls (and giving Malcolm Fraser landslide control of both houses) defies logic.

The lack of judgement of so-called experts in academia, the media and the republican movement should concern us all, but comes as no surprise. In 2005, a book of recollections was published by Melbourne University Press entitled The Dismissal, Where were you on November 11, 1975?   Edited by Sybil Nolan with an introduction by Jenny Hocking, the book consists of essays by people from all sides of the debate.

Peter O’Brien: Jenny Hocking Comes Up Empty

In one essay, The Professors’ Lunch, author Frank Moorhouse recalls having lunch in the dining room of the university staff club on November 11, 1975, with Donald Horne and Professor Douglas McCallum, both on the staff of the Department of Political Science at UNSW.  During their meal a waitress came up and informed them, breathlessly and close to tears, that she had heard on ABC radio that the Governor-General had sacked Whitlam.  McCallum, who hated Whitlam, said that she must be wrong, that this was not constitutionally possible.  Horne said she must have misheard it.  Both proceeded to lecture her on how things worked.  Moorhouse recalled, “I laughed and said, ‘You have two professors of political science here’.  She seemed to cheer up, blushing with confusion.”

It’s not only French philosophers who mislead our youth!

None of this necessarily justifies the actions of the Senate in denying Supply.  Whether this was right, or if Fraser and his supporters were unprincipled opportunists, is open to debate.  But that’s a political question, not a constitutional one.

10 comments
  • PT

    I’ll say it. Fraser was an unprincipled opportunist. He supposedly opposed Field’s appointment to the Senate, but used his appointment (by not giving a pair when Field was absent dilute to Labor’s court challenge to his appointment – which made their 30 votes a majority in the 59 sitting member chamber) to block supply even if he didn’t directly rely on Field’s vote. Did Field ever say how he would have voted at the time? Bunton voted for supply!
    .
    Fraser had form: such as his bringing down Gorton, ironic given he showed far less support to his own Ministers including Reg Withers than Gorton had actually given him. But the clincher in the poor character reference to Fraser is his behaviour after leaving politics. To ingratiate himself with the chattering classes, he threw Kerr under the bus, and then the monarchy and Anglo-Australia! And all to make sure the resentment of those he was courting was directed at anyone else than him!
    .
    Most of all I was disgusted when I read about his sudden conversion to republicanism where he was moaning about the events of 1975, and this showed the need etc.! He CAUSED the events of 1975, and here he was getting away with sounding as if he was somehow opposed to it!
    .
    I have a suspicion that he was haunted by the true cost of his actions, and sought some sort of redemption and forgiveness from those who felt wronged. But in Christian redemption there is reflection and repentance, and confession of guilt. Fraser never, ever did that. Instead he attacked Howard, Hanson and her “redneck bogan sympathisers”, hung Kerr out to dry, attacked Britain and the concept of Australia as a western nation, and ultimately the Queen. All to divert attention from himself and his own actions as far as I can see, except for putting down white Australia where he sought to draw his attention to him starting large scale Asian immigration (which didn’t happen under Whitlam despite the hype), bringing in Lebanese refugees, and above all promoting multiculturalism and founding SBS!
    .
    For me, the fact Fraser was largely successful in this endeavour is an even greater indictment of the chattering classes than it is of him. As Col O’Brian has pointed out, Sir John was put in the position of having to decide on ending the standoff rather than thrusting himself into the position. The attacks on Kerr are really objections to the election that followed. Had Whitlam won, Kerr would have resigned, and probably been forgotten. But Whitlam lost, and lost badly. Kerr was held “responsible” as it was apparently undemocratic to have an election! As caretaker PM Fraser had two tasks: secure supply and advise an election. He made no other executive decision other than advise dissolving Parliament and electing a new one. This “undemocratic” claim is really bitterness about Labor being cheated of “its time”! An understanding emotion perhaps, but not a rational judgement, nor a “democratic” one!

  • Salome

    I remember before the election, people of a certain persuasion going about with badges on exhorting us to restore democracy (or somesuch). After the election, I distinctly remember a woman of a certain persuasion with a badge on that read ‘I mourn democracy’. I was young–too young to vote–and I was confused. She mourned democracy when we’d just had an election . . .

  • Elizabeth Beare

    Fraser was never an appealing man per se, which was helpful to those of us who were lefties back in the day He was a simply superb target for ire. His move to the left in later years suggests how stung he was by the earlier historical legacy regarding the character attached so strongly to him by the left and that he was currying favour for leftist causes in order to retrieve in his own estimation and that of others honor of some sort. For left soft power was on the rise, as we now know. We are currently reaping its whirlwind.

  • ianl

    > ” … Kerr had no option but to dismiss him [Whitlam] *before* he formally tendered his advice [for a half-Senate election]…”

    This was how an actual Constitutional Crisis was avoided. This aspect was the real worry then. A meeting of State Governors was convened in Adelaide to examine this question prior to November ’75.

    For those commenters above still piqued by Fraser’s rank hypocrisy after the event, be of good cheer. A lady of a certain persuasion in country music Memphis took him down, big time.

    George Williams, amongst many others, is still trying to have removed both the ability of the Senate to refuse, block or defer supply and also those uncodified Reserve powers of the GG. These twin aims are the true raison d’etre of the Republican push. In my view, there is no hope this will happen – the referenda are simply too hard to win.

    Personally, one of the aspects clarified up in brilliant limelight by ’75 is the pleasing situation wherein either the PM or the GG may sack each other. Pleasing because this razor edge keeps a needed balance – and both positions deserve the tension. A genuine safety valve.

  • Lewis P Buckingham

    ‘Kerr’s dismissal of the Whitlam government using a reserve power that may or may not exist remains an open wound in Australia’s democracy.’
    From recall only.
    That objection was answered at the time.
    If that reserve power did not exist, all that had to happen was for the ALP to challenge the decision in the High Court. They Didn’t.
    The GG had his office sound proofed before telling Whitlam of his dismissal.
    The time line on the GG decision to sack Whitlam, was constrained by the time it took for supply to run out and the time it would then be possible to pass supply.
    A half senate election may have resulted in a decision to block supply.
    So that political opportunity was not taken by the GG.
    The Senate was obdurate.
    Fraser was the only person able to pass supply.
    The condition was Parliament went to the people.
    Democracy resolved the deadlock.
    Apart from ‘maintaining the rage’,nothing useful, constitutionally, has arisen from this.
    Watching the US, who now would vote for a President to rule over all?
    Is the real lesson that the GG’s will follow the constitution, not the hopes of their nominees?

  • terence.dwyer

    All correct.

    Years later, around 1982 or so, I arranged to take a friend interested in Constitutional Law to see Mr Odgers, the Clerk of the Senate, on a Saturday afternoon at his home (in Griffith if I recall rightly). My friend, a barrister, wished to give Mr Odgers some suggestions for the next edition of Australian Senate Practice (we both had copies of the 1972 edition). Mrs Odgers was there and gave us tea and cake while they talked. At the end of the long discussion, I, a non-lawyer at the time, asked Mr Odgers if Mr Whitlam was aware of the full history set out in his 1972 edition of the Senate’s powers and practice in relation to money bills including the list of about 50 or so rejected money bills Senator Murphy had tabled against the McMahon Government (when the ALP Opposition wanted to block sales tax changes, if I recall) and also Senator O’Connor’s rewriting of the preamble to the first Supply Bill of 1901 to insist on the Senate’s equal role in granting supply to the Crown.

    Mr Odgers replied that he could not comment.

    Mrs Odgers then piped up and said “But I can. I was here when he rang Jim up and Jim read it all out to him.”

    I have my signed copies of the 1972 and subsequent editions Odgers’ Senate Practice as mementos of that visit.

    So Mr Whitlam was a shameless liar when he misrepresented to the world and the public that the Senate was acting contrary to the Constitution and its conventions.

    Ever since then, I have had no respect for him.

    I have more respect for Clyde Cameron and Rex Connor who at least wanted some nation building.

    Dr Terence Dwyer
    Dwyer Lawyers
    Canberra

  • Lonsdale

    Dr Dwyer, I think you have just added a really important contribution to our discussion of the Dismissal. Thank you. And please, may it not be lost amongst the rubbish history.

  • PT

    Interesting Dr Dwyer. Whitlam lied through his teeth about the whole issue. The only point where he may have some point was the irregular appointments of Field and Bunton, and Bunton supported supply! Field was on leave from the Senate pending the decision on Labor’s challenge to his appointment (based upon the timing of his resignation from the department of education), and so never voted at all – but that leave of absence gave the Opposition an absolute majority by default. Fraser probably should not have exploited this given that he supposedly opposed Field’s appointment. Having said that, Whitlam tried fiddling with the Senate on many occasions. Not least in creating territory Senators, but with different terms from the rest of the chamber. This would mean that Whitlam, in theory, could obtain a brief Senate Majority even though the election gave the majority to his opponents due to the differing rules upon which the territory Senators took their seats: clearly the man’s intention all along. But how is this a “commitment to democracy”? I don’t see this as fundamentally different to what Lewis and Bjelke-Petersen did in their casual appointments. But the howls of outrage! The truth is that he tried to manipulate the system for his own ends as much as Fraser and Co, but just wasn’t as good at it. Not a good look for the “intellectual superior”!

  • PT

    I want to add that Whitlam often contradicted himself in statements (but was never called on it). I remember statements on ABC documentaries in the ‘80’s where he decried Bunton’s appointment, declaring that Murphy had “faced the voters” more recently than the NSW Government had. But the Queensland government had faced the voters more recently than any Federal MP (apart from the member of Bass) and the 1974 election was a disaster for Labor, and probably would have cost them a Senator if repeated in a Federal poll. Did Whitlam really want to draw attention to this, given it was the Field appointment that indirectly led to the fall of his government? No! He relied on the interviewer and audience not thinking of it, or not being aware of it, and certainly not being called on it. I often wonder if Whitlam’s reputation was highly intelligent is really based on soft, or ignorant, interviews!

  • norsaint

    Lee Kuan Yew wasn’t the only one glad to see the back of Whitlam. The Australian voters seemed pretty happy to consign him and his mob to the dustbin of history. Unfortunately Fraser spoke a good game but that was about it. The exponential growth of government continued apace to the point where now we can all be locked up arbitrarily in our homes.

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