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Gough Whitlam speaking on the steps of Parliament House, Canberra, following his dismissal.


The 1975 Australian constitutional crisis, commonly called The Dismissal, refers to the events that culminated with the removal of Australia's then Prime Minister, Gough Whitlam of the Australian Labor Party, 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 historymarker.

The crisis began in the upper house of the Federal Parliament, the Senate, where the opposition Liberal-National Country Party coalition had a majority. Believing the Coalition would win a general election after a series of recent scandals, the Coalition senators tried to force the government to the polls by blocking the government's money bills. They announced they would defer any voting on the annual supply bills that appropriated funds for government expenditure until the Prime Minister called a general election for the House of Representatives. The blocking of Supply was unprecedented in Australian political history, and the Whitlam Labor government resisted the calls of the Senate as being incompatible with the Westminster tradition of lower house supremacy. The government pressured Liberal Senators to support the Supply bills, and explored 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, after numerous meetings with both sides and failing to broker a settlement, the Governor-General enforced his executive powers enabled by the Australian Constitution and dismissed Whitlam as Prime Minister. He appointed Fraser as caretaker Prime Minister. The Senate then approved the appropriation bills as Fraser immediately faced a vote of no confidence in the lower house where his party was in the minority. Fraser 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 a government.

Background

Whitlam's Labor 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 House 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. 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 Queenslandmarker, to choose their replacements. The accepted tradition when filling casual vacancies was for the premier to choose a nominee from the party that the former Senator represented. Despite both vacancies being caused by the departure of Labor Senators, both premiers 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. Although a long-standing Labor Party member, Field 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 Courtmarker. 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 convention 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 possessed wide-ranging reserve powers to dissolve parliament and sack the government on his own initiative, in limited circumstances. Such reserve powers had not been exercised by any monarch since King William IV in 1834, and it was a matter of academic and legal debate as to whether they subsisted under either the unwritten British Constitution or the written Australian Constitution.

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 compromise.

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 proper 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 Walesmarker 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. Though this might appear to be an unlikely proposition, it was constitutionally possible and, in the peculiar circumstances of the crisis, it 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 heed such advice. Kerr subsequently claimed that his motivations in not warning Whitlam were not fear for his own position, but of the prospect that the monarch could become involved in Australian domestic politics.

This prompted Kerr to seek advice from the Chief Justice of the High Court of Australiamarker, Sir Garfield Barwick. On 9 November, Barwick advised Kerr that the governor-general did in fact have the constitutional power to remove the prime minister from office in these circumstances. 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 or judicial 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 advised (ie. directed) Kerr as governor-general not to seek Barwick's opinion. 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 Yarralumlamarker. 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, supported by his staff, claimed that Kerr had asked him the same three 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 who were largely not yet aware that Whitlam and his government had been dismissed (because Whitlam, intending 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 assent to the Supply bills and dissolved Parliament on Fraser's advice, so the no-confidence motion was rendered obsolete.

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 Housemarker. 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

The news that Whitlam had been dismissed spread across Australia during the afternoon, triggering immediate protest demonstrations. On 12 November, the Speaker of the House of Representatives, Gordon Scholes, wrote to the Queen, asking her to restore Whitlam as Prime Minister. The reply from the Queen's Private Secretary, dated 17 November 1975, included the following words:

As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia.
The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution.
Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.


Over the following weeks, Kerr was the subject of intense denunciations by angry Labor supporters, led by Whitlam, who made a series of speeches attacking Kerr.

In the ensuing election campaign, the Australian Labor Party's focus was predominantly on the asserted illegitimacy of the dismissal (with the slogans of "Shame Fraser, Shame"), while the Coalition focused on Labor's economic management. Some 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 blamed Fraser for causing the crisis and disagreed with his tactics. Once an election was called, the majority of people focussed 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). Passionate die-hard Labor supporters were furious at what they saw as an establishment plot to destroy a Labor government, but their often outraged behaviour during the campaign was telling, polarising the electorate and alienating undecided voters. Labor suffered its greatest loss ever (losing 7.4% of its vote at the 1974 election) against Fraser's Coalition.

Kerr was not forgiven by many Australians. Countless demonstrations occurred against him for years. He found the personal attacks on him and his wife, whom Whitlam and others accused of having been a sinister influence, deeply wounding. For the rest of his term as Governor-General Kerr was rarely able to appear in public without encountering angry demonstrations against him. On one occasion he genuinely feared for his life when he was unable to leave a speaking engagement in Melbournemarker except by having his car drive through an angry crowd. Labor MPs and Senators refused to accept his legitimacy as governor-general, as did Labor parliamentarians in the states and territories, shunning all official functions where he was in attendance.

Concern about Kerr's health may have been one reason why he cut short his five-year term and resigned his office in December 1977. In fact, his resignation had already been proposed during the visit of the Queen as early as March 1977. Though Fraser did owe his ascension to the Prime Minister's office to Kerr's actions, he nonetheless wanted Kerr gone. Fraser offered Kerr a post as ambassador to UNESCOmarker, an offer which he subsequently withdrew under enormous public pressure. Bill Hayden, then leader of the parliamentary opposition Labor party, was one of the critics against the UNESCO appointment. In the Australian Parliament he stated, "The appointment of Sir John Kerr as Ambassador... is not just an indecent exercise of the rankest cynicism. It is in every respect an affront to this country."

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 a Senate vacancy may only be filled by a member of the party of the original holder of the seat, if the holder's party still exists and if the State Parliament chooses to fill the vacancy.

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. Also, another potential question is why such eventualities could not be avoided by formal constitutional clarification of the roles of the monarch and Governor-General.

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 Senate was held by the Australian Democrats, who disavowed ever blocking supply to a government, thus reducing the question's urgency. At the 2004 election the Liberal/National Coalition government won control of the Senate, so the question became academic. After their loss of government at the 2007 election, the Coalition still controlled the Senate until 30 June 2008, but blocking supply was not an issue. From 1 July 2008, the balance of power in the Senate has been 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 former 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 miniseries, The Dismissal, screened in 1983. 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 few commentators allege involvement by United States intelligence in the dismissal of the Whitlam government.

The most common allegation is that the Central Intelligence Agency influenced Kerr's decision to dismiss Whitlam. In 1966 Kerr had joined the Association for Cultural Freedom, a conservative group which was later revealed to have received Central Intelligence Agency funding. Christopher Boyce, an employee of a CIA civilian contractor and convicted Sovietmarker spy, claimed that the CIA wanted Whitlam removed from office because he threatened to close US military bases in Australia, including Pine Gap. Boyce said that Sir John Kerr was described by the CIA as "our man Kerr". These allegations were repeated in Parliament in 1986 by Peter Staples. Boyce's story was made into a movie The Falcon and the Snowman.

Journalist John Pilger goes further, calling the dismissal a "coup". He alleges that the CIA, using the Nugan Hand Bank as a front, "set up" the Whitlam Government in the Loans Affair, provided slush funds to the opposition parties, used its intelligence-gathering for political ends, subverted trade unions, and liaised with Kerr during the crisis. Similar allegations are made by William Blum in Chapter 40 of his book Killing Hope, and by Centre for Policy Development lobbyist Tony Douglas.

Whitlam initially called for an inquiry into Boyce's allegations but, by the time of his 1985 book The Whitlam Government, he downplayed the issue, saying Kerr didn't need any encouragement from the CIA. Former ASIOmarker chief Edward Woodward has dismissed the notion of CIA involvement.

See also



Footnotes

  1. Dismissal still angers Gough, AM, ABC radio, 7 November 2005
  2. The bills that were the trigger for the double dissolution were: Health Insurance Levy Bill 1974, Health Insurance Levy Assessment Bill 1974, Income Tax (International Agreements) Bill 1974, Minerals (Submerged Lands) Bill 1974, Minerals (Submerged Lands) (Royalty) Bill 1974, National Health Bill 1974, Conciliation and Arbitration Bill 1974, Conciliation and Arbitration Bill (No. 2) 1974, National Investment Fund Bill 1974, Electoral Laws Amendment Bill 1974, Electoral Bill 1975, Privy Council Appeals Abolition Bill 1975, Superior Court of Australia Bill 1974, Electoral Re-distribution (New South Wales) Bill 1975, Electoral Re-distribution (Queensland) Bill 1975, Electoral Re-distribution (South Australia) Bill 1975, Electoral Re-distribution (Tasmania) Bill 1975, Electoral Re-distribution (Victoria) Bill 1975, Broadcasting and Television Bill (No. 2) 1974, Television Stations Licence Fees Bill 1974, Broadcasting Stations Licence Fees Bill 1974. All of these bills had twice been passed by the House of Representatives and rejected by the Senate. Somewhat unusually, the bills were all ones that his own parties had blocked.
  3. whitlamdismissal.com
  4. The Prince of Wales: A Biography by Jonathan Dimbleby, p.226
  5. Malcolm Fraser: A Biography, p.323
  6. Matters for Judgement by John Robert Kerr, p.424
  7. ibid, p.428
  8. John Pilger, A Secret Country, Jonathan Cape, London, 1989, pp 140-178.
  9. "Carter denied CIA meddling", by Mike Steketee, "The Australian", 1 January 2008
  10. Terrorist threat heightened, former spy boss says, Australian Broadcasting Corporation, 7.30 Report, 11/10/2005. Accessed 2009-07-23. Archived 2009-07-25.


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


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