1975 Australian constitutional crisis

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The secretary of the Governor-General, David Smith, announcing the dissolution of Parliament on November 11th, 1975. Gough Whitlam, the sacked Prime Minister, stands behind the secretary directly to his right while the address is being made.

The Australian constitutional crisis of 1975 refers to the events that culminated in Australia's then Prime Minister, Gough Whitlam, being sacked by Australian Governor-General Sir John Kerr, who appointed Leader of the Opposition, Malcom 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 Australian Federal Parliament, the Senate, where the opposition Liberal-National Country Party coalition had a majority. The Senate deferred voting on bills that appropriated funds for government expenditure, attempting to force the Prime Minister to call an election. The action was unprecented in Australian history and never since been reattempted. The Whitlam Government simultaneously dismissed the calls and attempted to pressure Liberal Senators to support the bills while also exploring alternative means to fund government expenditure. The impasse extended into the weeks, 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 his Liberal opponent Malcolm Fraser as caretaker Prime Minister, thus resolving the crisis.

Background

The Whitlam government, which was elected in 1972 after decades of conservative rule, had pioneered several social reforms immediately after gaining office. These included the creation of the Medibank universal health care system, the introduction of no-fault divorce legislation, and the abolition of fees for tertiary education. These reforms initially made the Whitlam government popular. However, the electorate soon became wary of the breakneck pace of reform and Whitlam's "crash through or crash" style of governance. Inexperienced and erratic Ministers made several gaffes. Relations with bodies such as the public service - particularly the Treasury and the trade union movement - were often tense. The economy was beset by stagflation. Within this context, the government came under increasing attack.

In 1974, Whitlam called a double dissolution in an effort to gain a government majority in the Senate. Whitlam failed to gain a majority. However, after the election, bills which had been rejected three times by the Senate in the previous parliament were able to be put to a historic joint sitting of both houses of parliament. This ensured such social reforms as Medibank were able to be instituted. By 1975 the government had become scandal-plagued and unpopular in the electorate. Desperate to raise revenue, a number of Ministers sought finance through unorthodox channels, triggering what became known as the Loans Affair.

The crisis was triggered by two casual vacancies in the senate arising. These were caused by the appointment of one sitting Labor Senator, Lionel Murphy, as a judge on 9 February and the sudden death of Senator Bert Milliner on 30 June. It fell on two non-Labor State premiers to choose their replacements, Tom Lewis of New South Wales and Joh Bjelke-Petersen of Queensland. Both chose candidates who opposed the Whitlam government. On 27 February, Lewis appointed replacement Senator Cleaver Bunton from New South Wales. Bunton was independent and not a member of any political party. On 3 September, Bjelke-Petersen refused the Labor Party's candidate as replacement Senator, Mal Colston. Bjelke-Peterson had been presented only with Mal Colston, when he had requested multiple candidates from which to choose. Bjelke-Peterson chose to appoint obscure french-polisher Albert Patrick Field. Field was a Labor Party member but openly critical of the Whitlam government.

The action by both Premiers went against a previously unbroken convention under which a Senator who dies or resigns mid-term is replaced with a nominee from the former Senator's political party.

Field's appointment came under challenge in the High Court. Field was on leave from the Senate, unable to exercise a vote, for the period of the crisis. The number of nominally Labor Senators was thus reduced. However, the Liberal-Country opposition would not provide a "pair". A pair is an informal but well-established tradition whereby whenever a sitting member or Senator is through circumstances outside their control unable to attend and vote, the opposite party reduces its own numbers accordingly by having one of their own members abstain from the vote.

Quoting financial mismanagement, the Opposition refused to vote on the passage of the government's budget through the Senate. They considered that having lost the support of Parliament, the Prime Minister was obliged to resign and to advise the Governor-General to call an election.

Usually in Westminster systems, the government is only accountable to the directly-elected lower house, with the upper house being either appointed, hereditary, or indirectly elected. After a confrontation between Lloyd George and the House of Lords, Britain's Parliament Act of 1911 enshrined the pre-existing principle in Britain that the upper house cannot thwart the wishes of a government with the majority support of a lower house. Australia's Constitution, however, had provided for a powerful upper house, with wide powers. The constitution had been enacted in 1901, thus pre-dating the Parliament Act. Unlike members of the House of Lords or the Canadian Senate, Australian Senators are directly elected, albeit on a rotational basis and in a manner that proportionally advantages states with smaller populations at the expense of larger ones. The Constitution specifically provided that the Senate could not originate or amend bills about finance or expenditure, but then provided that otherwise both Houses were to have equal legislative power, prima facie leaving the Senate with power to defer or reject them.

The Liberals defended their action in blocking supply by arguing that Whitlam himself had openly flouted conventions. The 'Loans Affair' (among other issues), in their opinion, justified their use of any legal means, however unconventional, to force what they saw as a reckless and incompetent government out of office. The Liberals moreover claimed (rightly, according to opinion polls) that the electorate had tired of the Whitlam government and wished to vote it out, and thus forcing the government to call an election was justifiable.

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 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 backdown, but also to permanently and definitively establish the supremacy of the lower house.

Public opinion during the crisis 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 cave in by passing 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 had started to drift towards the conservatives and felt isolated from the Government.

The precedent had long been established that in normal circumstances the Governor-General was expected only to act on advice received from the Prime Minister, and Whitlam confidently assumed this would be the case during the crisis. However, according to the Constitution, and in accordance with established practice in the wider Commonwealth of Nations, the Governor-General still possessed wide ranging reserve powers to dissolve parliament and sack the government on his own initiative, in certain limited circumstances. It would later become apparent that Kerr and Whitlam were at odds over whether the Governor-General had the power to act independently in times of crisis. Kerr had a much more pro-active interpretation of the office's role than the Labor Government, which assumed he would take no action unless prompted. As the government money threatened to run out Kerr came under increasing pressure from the Liberals, who insisted that constitutionally, a Prime Minister who could not obtain supply must either resign or be dismissed.

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 request Elizabeth II, the Queen of Australia, to remove him as Governor-General instead. 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. 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. Kerr was also mindful of threats from Fraser that the Opposition would begin publicly criticising him unless he "did his duty".

The front page of the Melbourne Age newspaper

This prompted Kerr to seek advice from the Chief Justice of the High Court of Australia, Sir Garfield Barwick. 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 Liberal Party government and not in an impartial position personally. Whitlam claimed that he specifically instructed Kerr not to seek Barwick's advice, but 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 November 11, 1975, Whitlam is summoned by the Governor-General to Government House at Yarralumla. The Prime Minister arrivied without the knowledge that Fraiser had also been been summoned but had arrived earlier. Whitlam also carried with him a letter officially requesting official approval for a half-Senate election in order to break the deadlock but his request is prempted by Kerr. Stating that there was no prospect of the crisis being resolved otherwise, Kerr dismissed Prime Minister Whitlam and appointed Malcolm Fraser as the caretaker Prime Minister, on the basis that Fraser had promised to pass supply, then immediately advised the Governor-General to dissolve parliament and call a general election. Fraser did so, and Kerr called a general election for December 13, 1975. The Liberal and National Country Party Senators were advised of the situation and they duly 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 — all through October and November two independents, Lewis's appointment Cleaver Bunton and Steele Hall, a former Liberal Party but now Liberal Movement Senator from South Australia, had supported the Labor Party — the motions for deferring the Budget bills were passed by 30-29 — an outcome which would have been 31-27 in favour of passing the Budget bills had the Labor Senators tried to reject them on November 11th. Kerr ignored two immediate motions of no confidence in Fraser from the House of Representatives as by the time he received them Parliament had already been dissolved by proclamation.

Upon the steps of Parliament House, Whitlam proclaimed to 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 was countersigned Malcolm Fraser, who will undoubtedly go down in Australian history from Remembrance Day 1975 as Kerr's Cur.

Aftermath

ALP Policy launch before a huge crowd in the Sydney Domain on 24 November 1975

In the ensuing federal election, the ALP's campaign focused entirely on the illegitimacy of the dismissal (with the slogan of "Shame Fraser, Shame"), while the Coalition focused on Labor's economic management shortcomings. 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 focussed on the economy and accepted the Liberals' line that a 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 unconstitutionally 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 was seen as a popular endorsement of Kerr's actions, although Kerr himself became a reviled figure and left office early to live in self-imposed exile in Surrey.

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 "state's 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. It has been used as an argument for the codification of the reserve powers within the Constitution. This 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 unforseen 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, to require that State Governments fill Senate vacancies with a member of the Party of the original holder of the seat.

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 basically 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 elected 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 could 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 in its own right. With the Coalition now holding 19 of the 36 seats which will not be up for re-election, this leaves open the possibility of the Coalition controlling the Senate in opposition if they were to narrowly lose the next election, due in 2007.

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.

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.

Similar crises

There are several parallels with the 1926 King-Byng Affair, a Canadian constitutional crisis in which the Canadian Governor General had a significant precipitating role.

References

• Tony Blackshield, "Dismissal of 1975", in Blackshield, Coper and Williams, Oxford Companion to the High Court of Australia (Oxford University Press, 2001) ISBN 0195540220
• Paul Kelly, November 1975 (Allen & Unwin, 1995) ISBN 1863739874

External links

• The Whitlam Dismissal