The Dismissal (1975)

Introduction

The dismissal has been described as the greatest political crisis in Australia’s history. It began in the middle of October 1975 when the Senate refused to pass the government’s Budget. In respect of each of the Supply bills the Senate resolved that

… this Bill be not further proceeded with until the Government agrees to submit itself to the judgment of the people, the Senate being of the opinion that the Prime Minister and his Government no longer have the trust and confidence of the Australian people …

The month long stand-off between the House of Representatives and the Senate, between the Government and Opposition parties, was only resolved on Tuesday 11 November 1975 when the Governor-General of Australia, Sir John Kerr, intervened. He dismissed the Prime Minister, Mr Gough Whitlam, and appointed the Leader of the Opposition, Mr Malcolm Fraser, as a caretaker Prime Minister. A Double Dissolution election was held on 13 December 1975 at which the Whitlam Government was soundly defeated.

The unilateral action of the Governor-General in dismissing the Whitlam Government and his appointment of Fraser as Prime Minister when he did not have the confidence of the House of Representatives have raised a number of fundamental questions about Australia’s Constitutional arrangements.

 

Chronology of key events

2 December 1972
At the Federal House of Representatives election the Australian Labor Party (ALP) lead by Edward Gough Whitlam defeated the Liberals who had been in Government since 1949.
10 April 1974
The Opposition Leader in the Senate (Senator Withers) moved an amendment to the First Appropriation Bill in an attempt to force the Government to call an House of Representatives election at the same time as the half-Senate election. The Government sought, and the Governor-General granted, a double dissolution election.
18 May 1974
Double dissolution election. Labor retains Government with a slightly reduced majority in the House of Representatives. Labor failed to gain control of the Senate. Labor and the Coalition have 29 seats each; with Steele Hall (Liberal Movement, SA) and Townley (Independent, Tasmania) holding the balance of power.
11 July 1974
Sir John Kerr appointed Governor-General, replacing Sir Paul Hasluck.
14 December 1974
The Federal Executive Council (EXCO) approved the raising of a $US 4,000 million petrodollar loan for the Minerals and Energy Minister, Rex Connor, to finance a massive resources and infrastructure program. The loan was to be brokered by Tirath Khemlani. Khemlani had no experience in brokering loans.

Some argue this meeting of EXCO was invalid as it was not presided over by the Governor-General nor the Vice President of EXCO (then Frank Stewart); however, if properly convened there is no doubt the Governor-General would have signed the loan authorisation on the advice of the Prime Minister. More importantly, others argue that the loan instrument itself was invalid because it sought to avoid Loan Council approval (and therefore the approval of State Premiers) by incorrectly asserting that a manifestly non-temporary, twenty year loan was only for “temporary purposes”.

Ultimately the “Loans Affair” became the principle issue of Opposition attack on the Government throughout the ensuing Supply crisis.

7 January 1975
When Khemlani failed to obtain any funds, the loan authority of 14 December 1974 was revoked.
28 January 1975
A fresh loan authority for $US 2,000 million, in the same terms as the first loan authority, was approved by the Federal Executive Council. Khemlani continued to assert that he was able to raise the money.
9 February 1975
ALP Senator Lionel Murphy appointed to the High Court of Australia
27 February 1975
The NSW Parliament appointed an independent, Cleaver Burton, to replace Murphy in the Senate. This breached the convention that replacements should come from the same political party. Labor reduced to 28 in the Senate.
21 March 1975
Malcolm Fraser replaced Billy Snedden as Liberal Party Leader.
20 May 1975
The Federal Executive Council revoked the approval it had given on 28 January 1975 for a $US 2,000 million loan.
28 June 1975
The Bass by-election demonstrated the electoral weakness of the ALP - Labor lost this House of Representatives seat to the Liberals (Kevin Newman) with a 13.8% swing. The by-election was caused by Lance Barnard’s acceptance of an ambassadorship.
30 June 1975
Labor lost another Senator with the death of Bert Milliner (Queensland).
21 August 1975
The first (and only) Hayden Budget is handed down. It was well received in the media. Within days, Fraser was canvassing support to force an early election.
3 September 1975
The Queensland Parliament refused to accept Labor’s nominee to replace the late Senator Milliner; Labor had nominated Dr Malcolm Colston. They appointed Albert Patrick Field, who had contacted the then Premiers office volunteering to stand as a “true” Labor man. On route to Canberra, Field said that “Mr Whitlam will never get a vote from me”; and that he would support any moves to force an early election.
early October
Khemlani turns up in Australia with two suitcases full of cables from Rex Connor, including those sent after Connor was directed not to contact Khemlani further. Connor was obsessed that Khemlani was able to get the loan and had continued negotiating secretly with Khemlani. Khemlani gave his cables to the Opposition.
8 October 1975
Whitlam denied in Parliament that any of his Ministers were still involved in loans negotiations after the May revocation of the EXCO authority.
13 October 1975
The Minister for Minerals and Energy (Rex Connor) forced to resign after the revelation that he was still negotiating with loan intermediary Khemlani. The EXCO loan authority had been terminated on 20 May 1975. Connor was replaced in the Ministry by Paul Keating.

The scandal of the “Loans Affair” provided for the Opposition with the “reprehensible circumstances” they needed to argue that blocking the passage of the Budget in the Senate was in the national interest.

15 October 1975
Opposition frontbencher, Bob Ellicott QC, argued, among other things, that if the Prime Minister was unable to gain supply and if he sought to govern without supply, or if he intended to act illegally, it would be within the Governor-General’s power and his duty to dismiss his Ministers and appoint others who would recommend an House of Representatives election. Ellicott also argued that Kerr should ask Whitlam immediately how he proposed to resolve the crisis. Although Kerr rejected this view, he gave Whitlam no hint of his intentions until he had actually dismissed Whitlam.

Fraser announced that the Senate will not pass the Appropriation Bills unless the Government agrees to an early election.

16 October 1975
Whitlam quipped to Kerr at an official function that the Supply crisis might be resolved by who acts first: the Prime Minister asking the Queen to recall the Governor-General or the Governor-General dismissing the Prime Minister. One paradox at the heart of the 1975 crisis is that Whitlam never seriously contemplated that Kerr might dismiss him, but Kerr was obsessed with the notion that Whitlam might contact the Queen to dismiss the Governor-General.

Kerr asked Whitlam if he could consult the Chief Justice of the High Court of Australia, Sir Garfield Barwick, about the Supply crisis. Whitlam said no.

21 October 1975
Kerr came under public pressure to intervene. Kerr got Whitlam’s agreement to speak with Fraser about the crisis. On the same day Whitlam ruled out the possibility of a half Senate election or an House of Representatives election until after the crisis is resolved. In the evening, Fraser and Kerr met for the first of a number of times over the subsequent weeks.
31 October 1975
Whitlam announced that if supply runs out, he would govern without a budget. His scheme was to replace government expenditure with bank credit. Fraser responded by saying that Whitlam now sought to govern without Parliament.

After the fact, many justified the dismissal on the basis that Whitlam proposed to govern illegally; however, this justification was not listed in Kerr’s statement of reasons at the time.

3 November 1975
Public opinion mounted against the Coalition in respect of the Supply crisis. Fraser floated a compromise solution. The Senate would pass supply if the Government agrees to an election before July 1976. Whitlam rejected the compromise.
6 November 1975
Kerr decided that he would act to ensure the crisis is resolved in time for a pre-Christmas election. He determined that 11 November 1975 was the last practical day for calling a pre-Christmas election. From their discussions with Kerr, both Fraser and Hayden believed that Kerr had decided to act against the Government. Kerr did not advise or warn Whitlam of his decision. Whitlam rejected Hayden’s analysis of his meeting with Kerr.
9 November 1975
Kerr seeks advice from the Chief Justice of the High Court of Australia.
10 November 1975
The Chief Justice advises the Governor-General as to his “constitutional rights and duties”.
11 November 1975
9:00am
Whitlam met with Fraser and other Opposition leaders. He said that he would call a half-Senate election immediately unless the money bills are passed.
10:05am
Whitlam rang Kerr and said he would like to see him and advise a half Senate election. They agreed to meet at 1pm.
10:15am
Although the contents of the phone call are disputed, it appears that Kerr called Fraser to see whether, if commissioned as a caretaker Prime Minister, he would guarantee supply and recommend a double dissolution election. Fraser said yes. At this point, Kerr had not advised or warned Whitlam of his intentions.
11:15am
Fraser rang the Chief Electoral Officer to determine the last possible day for calling a 13 December 1975 election. The Chief Electoral Officer advised the Prime Minister’s Office of Fraser’s call.
12:10pm
Kerr’s Official Secretary calls Fraser to attend Government House at 1pm.
12:50pm
Fraser arrived at Government House ahead of Whitlam and was shown into a waiting room.
1:10pm
Kerr terminated Whitlam’s commission as Prime Minister. Kerr issued a statement of reasons for dismissing Whitlam. Afterwards Whitlam repaired to the Lodge for a steak.
1:15pm
Fraser appointed as Caretaker Prime Minister.
2:00pm
Both Houses of Parliament reconvene after lunch.
2:20pm
The Senate passed the Appropriation Bills (Supply).
2:24pm
The Senate adjourned.
2:30pm
Fraser announced to the House that he had been commissioned as a caretaker Prime Minister and moves that the House adjourn. The motion is defeated.
3:00pm
House carried a no-confidence motion in the caretaker Prime Minister (Fraser).
3:15pm
The House is adjourned until 5:15pm. The Speaker went to the Governor-General to convey the House’s motion of no-confidence in the Prime Minister.
3:50pm
The Governor-General gave Royal Assent to the Appropriation Bills.
4:00pm
Fraser advised a double dissolution election. There were 21 bills which satisfied the double dissolution trigger under section 57 of the Constitution.
4:30pm
Both Houses of Parliament dissolved and a double dissolution election called.
4:40pm
Proclamation read on the steps of Parliament House by David Smith, the Governor-General’s Official Secretary. Whitlam made his famous speech in reply on the steps of Parliament House.
4:40pm
The Governor-General deliberately kept the Speaker waiting until after Parliament was dissolved. At that point the House’s motion was meaningless.
12 November 1975
The Speaker of the House of Representatives wrote to the Queen expressing concern in the actions of the Governor-General.
17 November 1975
The Queen’s private secretary replied, at the command of Her Majesty, to the Speaker’s letter.
13 December 1975
Federal election - Fraser won a majority in both Houses.

 

Issues

The importance of Constitutional conventions

  • The Supply crisis and the dismissal were only possible because a number of longstanding and fundamental constitutional conventions were broken:
    • Two State Governments broke the longstanding Australian convention with their decision to fill casual vacancies in the Senate with people not from the same political party as the vacating Senator.
    • The Senate’s decision to block supply was, at the time, considered a breach of the Westminster convention of responsible government (see below).
    • Whitlam’s decision not to resign or advise an election when he was unable to secure Supply for the Crown was, according to his critics, a breach of the Westminster convention of responsible government.
    • The Governor-General’s decision not to warn and/or advise the Prime Minister before dismissing him was a serious breach of his constitutional duty.
    • The Governor-General’s decision to exercise the monarch’s powers without and/or contrary to the advice of a Prime Minister who had the confidence of the House of Representatives was a breach of the convention that the monarch and her representative should only exercise those powers in accordance with such advice.
    • The Governor-General’s decision to appoint Fraser as Prime Minister, when he did not have the confidence of the House of Representatives, was a breach of the Westminster convention of responsible government.
  • The Fraser government successfully sponsored a Constitutional amendment in 1977 to stipulate that replacement Senators filling a casual vacancy must be members of the same political party as the outgoing Senator. However, a loop-hole remains, there is no requirement for State Governments to actually fill a casual Senate vacancy.
  • Although the Australian Convention provides explicitly for the mechanisms of federalism, it does not provide adequately for the mechanics of responsible government. Because the framers of the Australian Constitution simply assumed the Westminster conventions of responsible government would operate, they did little to codify them. Where they did codify the Westminster system, they often opted for archaic constitutional theory rather than modern constitutional practice. As a result, they actually codified the historical tradition of an all-powerful monarchy, rather than the mechanisms of a constitutional monarchy. For example in section 61, executive power is vested in the Queen and exercised by the Governor-General. No mention is made in the Australian Constitution of the Prime Minister or Cabinet who, under the conventions of responsible government, actually exercise the executive power.
  • Thus, the events of 1975 have exposed a serious flaw in the Australian Constitution. Because the conventions of responsible government are poorly codified in the Constitution, opportunistic political parties can seek to do whatever is not prohibited by the Constitution to defeat the Government of the day whose position in power rests almost exclusively on unwritten conventions. As Fraser discovered, the written Constitution triumphs over the unwritten conventions.

Does the Senate have the legal capacity to delay/refuse Supply? Does “responsible government” include responsibility to the Senate?

  • Since the events of 1975 most commentators now agree that the Senate has the Constitutional right to delay and/or refuse supply.
  • Most commentators now agree that the convention of responsible government in Australia (unlike the United Kingdom) includes responsibility to the Upper House when it comes to securing Supply for the Crown.
  • Most commentators also agree that a Prime Minister does not have to resign or advise an election at the point when supply is first delayed. However, there is agreement that a government is responsible to both Houses of Parliament in securing supply for the Crown. Ultimately if supply cannot be secured, a Prime Minister should either resign or advise an election. There is no agreement about the point in the process at which a Prime Minister should resign or advise an election.

What is the precise scope of the Governor-General’s reserve powers?

  • The precise scope of the Governor-General’s reserve powers is unclear and contested. Most commentators agree the reserve powers cannot be codified readily.
  • However, it appears that the Governor-General’s reserve powers may well exceed those of the monarch in respect of Great Britain, as most if not all of the reserve powers associated with the British Crown have fallen into disuse.

When should the reserve powers be exercised?

  • Under the conventions of a constitutional monarchy, the reserve powers should only be used as an instrument of last resort in extraordinary circumstances.
  • Their use is meant to be restricted to those very few situations when others fail to adhere to the central conventions of responsible government, or when the agreed conventions fail to supply an answer to a situation.
  • Contrary to Kerr’s assertion (which overstates the exercise of the reserve powers as more than an instrument of last resort), there is no Constitutional duty requiring the Governor-General to exercise the reserve powers in certain circumstances.
  • There are two classes of situations where it is generally accepted that a Governor-General may dismiss a Prime Minister:
    • when the Prime Minister refuses to resign in situations where the conventions of responsible government call for resignation (for example, after losing a motion of no confidence in the House of Representatives; after losing the leadership of the majority party or coalition in the House; or after failing to get a Money bill passed by the Parliament); and
    • when a government acts illegally or persists in breaching a fundamental constitutional provision and those breaches cannot be brought before the courts;
  • Interestingly, in the two dismissals which have occurred this century, these preconditions have not been fulfilled. The matter which lead to the dismissal of Premier of New South Wales, Jack Lang, in 1932 could have been dealt with by the courts. In respect of Whitlam, he still had around 3 more weeks of Supply at the time he was dismissed.

Should the Governor-General advise and warn the Prime Minister before exercising the reserve powers? Did Kerr act prematurely?

  • As much as Kerr spoke of his “Constitutional duty”, he failed to exercise his duty, as described by Bagehot in his 1867 text The English Constitution, to advise and warn his Prime Minister before dismissing him. Most commentators consider that Kerr’s actions were utterly flawed because of this failure.
  • It is also clear that Kerr did little to seek a political rather than quasi-judicial resolution to the crisis. Kerr should have endeavoured to use his powers of influence to seek a political solution before applying the ultimate sanction.
  • There is little question that Kerr acted prematurely in dismissing the Prime Minister. Not only because he failed to warn and/or advise before taking any action, but there was nothing particularly precipitous about Tuesday 11 November 1975. Kelly (1995:295) comments, “Sir John’s defence of his timing is noticeably weak”.

When does the Governor-General’s exercise of his Constitutional powers without or contrary to the advice of the government of the day, which has the confidence of the House of Representatives, become undemocratic and “irresponsible government”?

  • In a liberal democracy, every exercise of the Governor-General’s Constitutional powers without or contrary to the advice of the government of the day weakens the institution of the Governor-General and could easily fuel a crisis in legitimacy.
  • The use of the Governor-General’s reserve powers, therefore, should first of all be avoided and where that is not possible limited to the situations identified above.

The appropriateness of the Chief Justice of the High Court of Australia providing legal advice to the Governor-General

  • Lucy (1993) identifies that at least seven Governors-General thought it was proper to consult a Chief Justice on the discharge of their Constitutional duties.
  • Whether it is proper for a Chief Justice to give advice is another question. Barwick argued that it was acceptable, as the matter he was advising on was not justiciable. However, this may overstate the case, and a number of commentators think it was entirely possible that aspects of the dismissal could have been brought before the High Court.

Should the Senate be able to send the House of Representatives to an election (by refusing Supply) but not be required to go to the polls itself?

  • The only reason there was a double dissolution election in 1975 is because
    1. the required triggers under section 57 of the Constitution had been fulfilled; and
    2. the (caretaker) Prime Minister of the day recommended a double dissolution.
  • If either of these two preconditions had not been met, a House of Representatives election would have been called and possibly, but not necessarily, a half Senate election because of the proximity of the next half Senate change over.
  • Therefore it is technically possible for the Senate to send the House of Representatives to an election without going to the polls itself. Most commentators consider this a flaw in the Australian Constitution.

The extent to which the lack of tenure for the Governor-General exposes him to becoming entangled in political rivalry with the Prime Minister

  • Kelly (1995) argued that Kerr’s lack of tenure, and his fear that Whitlam would call the Queen and have him sacked, compelled him to act in secret.
  • However, this is a symptom of a larger weakness - Australia’s head of State system where the actual head of State is absent and cannot exercise her powers; and her representative does not have tenure. If Australia was a normal monarchy, the Prime Minister could not have sacked the Queen. If Australia was a republic, the President would have security of tenure against removal by the Prime Minister. The Governor-General does not enjoy the tenure of either a King or President.
  • The outworking of the Australian conventions is that the Governor-General’s job is ultimately at the Prime Minister’s pleasure. Ironically, the Prime Minister’s job is at the Governor-general’s pleasure. In times of conflict, both can become entangled in political rivalry. This is not a Constitutional recipe for long term stability.

What if Fraser failed to secure supply for the Crown?

  • Under the Kerr-Barwick doctrine Fraser was commissioned on the basis that he would secure supply for the Crown, and then advise a double dissolution election. However, when Fraser agreed to ensure supply, he made a commitment that he could not guarantee.
  • Whitlam, with his majority in the House of Representatives, could have denied supply to Fraser:
    • Before the Senate had passed the Appropriate Bills, the House of Representatives, could have rescinded the House’s previous motions carrying the Bills; and asked the Senate to return the Bills. This could have been done immediately without debate and achieved before the Senate had voted on the Appropriation Bills. The House could have then agreed to sit until Kerr recommissioned Whitlam.
    • In the Senate, Labor could have used every possible procedural motion and its control of the Chair to delay the reintroduction of the supply bills.
    • Even after the Senate had passed Supply, the House of Representatives could have directed the Speaker not to send the Supply bills to Government House for the Governor-General to give the Royal Assent.
  • If Whitlam had resolved to take the above actions he would have denied supply to Fraser. Kerr could not have called an election (supply needed to be guaranteed before an election was called). By the same logic Kerr sacked Whitlam, Kerr would then have to sack Fraser and reappoint Whitlam.
  • It appears Kerr’s strategy worked, at least in part, because of its innovation and element of surpise. Now that the weaknesses in the strategy are better understood, should a similar situation occur again, it is unlikely that a future caretaker Prime Minister in the same position as Fraser would be able to secure supply.