1975 – Myths Revisited

 Professor Anne Twomey is Director of the Constitutional Reform Unit at Sydney University and author of  numerous constitutional law studies especially The Chameleon Crown – The Queen and her Australian Governors She has expert knowledge of the legal story surrounding Sir John Kerr’s actions and what followed. On Monday 9 November 2015, Anne Twomey joined Paul Kelly, The Hon John Howard and Dr Gerard Henderson at The Sydney Institute  to discuss the constitutional ramifications of the dismissal of Prime Minister Gough Whitlam by Governor-General Sir John Kerr.

1975 – MYTHS REVISITED

ANNE TWOMEY

The events of 11 November 1975 were certainly dramatic and have since been the source of endless discussion and analysis.  What is disturbing, from a constitutional lawyer’s point of view, is that for many commentators, constitutional history appears to have started in 1975, with no recognition of the context in which it was situated and the history that came before.  There are too many breathless claims that everything that occurred was “unprecedented” and “unconstitutional”, without any understanding of existing practice and precedent.

This paper addresses two of these unsupported claims, balancing things out with a third dubious claim, this time put forward by the Governor-General.

Claim 1 – “Dismissal of an elected government by the Queen’s representative is unprecedented”

The first claim is that the dismissal of an elected government by the Queen’s representative is utterly unprecedented.  Even the most ignorant of commentators would be aware of the dismissal of the Lang Government in 1932, so this claim is sometimes transformed into one where it is always Labor Governments that are dismissed at the hands of the conservative forces in upper Houses and in Government House.  There are just as many examples, however, that go the other direction, with conservative leaders being removed.  The difference is that the dismissed conservative premiers went quietly, didn’t maintain the rage and got on with the business of politics.

Let me give two examples.  In 1945, 30 years before the Whitlam dismissal, it was a Labor Leader, John Cain, who orchestrated the blocking of supply to the Country Party Government of Albert Dunstan in Victoria.  Dunstan sought a dissolution, but supply was about to run out.  The Governor, Sir Winston Dugan, agreed to grant Dunstan an election if he could secure supply to cover the election period.  Dunstan failed and pressed the Governor for a dissolution.  The Governor replied that he would not be party to the illegal application of public moneys.  He therefore required Dunstan’s resignation.  Does this scenario sound at all familiar?  Dunstan was given no choice – his was a forced resignation – but he did at least submit a formal resignation, rather than refusing to do so and campaigning to maintain the rage.

We only know that Dunstan was forced to resign because of a memorandum written by Sir Frederick Mann, the recently retired Chief Justice, who advised the Governor throughout the crisis, as he had done through previous crises while serving as Chief Justice.

In 1952, Labor again joined with some renegade Liberals to block supply in the Victorian upper House to the Country Party Government of John McDonald.  Supply was due to run out 10 days later.  McDonald advised the Governor, Sir Dallas Brooks, to dissolve Parliament and hold an election.  McDonald, like Whitlam, retained majority support in the lower House, but could not get supply through the upper House.  The Governor consulted with the leaders of other political parties and concluded that Tom Hollway, a former Liberal, could achieve the passage of supply.  The Governor then informed the Premier, McDonald, that he had rejected his request for an election and required him to resign.  McDonald did so, despite still holding a majority in the lower House.  Hollway was sworn in as Premier, achieved the passage of supply in the upper House and was then immediately defeated in a vote of no confidence in the lower House (which was exactly what happened to Fraser, after the passage of supply in the Senate and a vote of no confidence in the House of Representatives).

Upon being defeated, Hollway asked the Governor for an election, noting that he had met the only condition placed upon him, which was the passage of supply.  McDonald argued, however, that Hollway had never achieved the support of the lower House and that he, McDonald, should therefore be reappointed as Premier, as he held its confidence.

The Governor then consulted the Chief Justice of the Supreme Court of Victoria and the Chief Justice of the High Court.  Having received their advice, he refused Hollway’s request for a dissolution and offered him the alternative of resigning voluntarily or doing so ‘at the Governor’s request’, being the polite term for a forced resignation or dismissal.  Hollway refused to do so voluntarily, so his was a forced resignation.  McDonald was then commissioned on the condition that he advise the dissolution of Parliament and the holding of a general election.  The election was won by Labor (rather than McDonald or Hollway).

One of the more interesting things about the reporting on 1975 is why these examples of very similar scenarios were not the subject of general reporting and public discussion.  Perhaps because they made the events of 1975 less shocking as it had all happened before.  Perhaps because they did not fit with the martyrhood narrative or the conspiracy narratives that were being so carefully nurtured.  Perhaps because they exposed the hollow ring of arguments that upper houses cannot block supply and force a lower house to an election, especially where Labor had merrily engaged in such activity not all that long before.

Claim 2 – “Advice by the Chief Justice to the Governor-General is utterly unprecedented and unconstitutional”

The next breathless claim that has often been made is that the advice by the Chief Justice to the Governor-General in 1975 was utterly unprecedented and unconstitutional.  As the two examples I have already given show, it was actually common for the Chief Justice to advise the relevant vice-regal officer in relation to any constitutional crisis.  Indeed, it is very difficult to find any constitutional controversy pre 1975 in which a Chief Justice or other judges had not advised.

While digging up written evidence of this can be quite tricky, as often advice was oral and not recorded, I can provide documented cases of such advice being given at the Commonwealth or State level in 1904, 1909, 1914, 1917, 1922, 1927, 1932, 1935, 1939, 1943, 1950 (Tas and Vic), 1952, 1955, 1956, 1960, 1967 and 1971.  These examples cover every decade and every jurisdiction except South Australia (which is only because I have not done any hunting there).  In some cases Governors, writing back to England, referred to the Chief Justice as their “adviser on Constitutional Law”, as if it were accepted as a formal role of the Chief Justice.  A former Official Secretary to a number of Governors-General, Sir Murray Tyrell, stated in an interview in October 1975 (before Barwick’s advice had been sought) that the Governor-General had requested advice from the Chief Justice “many times in the past” and that he, Tyrell, had done so himself on behalf of the Governor-General on half a dozen occasions.

The Labor Party was not immune from arguing that the advice of the Chief Justice should be provided to the Governor-General.  In 1951, for example, the press reported that Labor Members of Parliament had suggested that the Chief Justice, Sir John Latham, should advise the Governor-General on whether the requirements had been met for the grant of a dissolution of both Houses of Parliament.

Nor was the Australian reliance on judicial advice unusual within the British Commonwealth.  The advice of judges has also been sought by the monarch of Great Britain and Governors-General in other countries when constitutional issues have arisen.  While it is not possible to obtain archival documents about advice to the current Queen until after her death, the Royal Archives and British National Archives show that previous monarchs have sought advice from judges, including George V who sought advice from a Law Lord about whether he should act upon the advice of the Australian Prime Minister to appoint Sir Isaac Isaacs as Governor-General and George VI who sought advice from a Justice of the King’s Bench about his power to refuse a dissolution.  Judges have played a particularly important role in advising Governors-General in constitutional crises involving political violence in countries including Rhodesia, Grenada and Fiji.

The heart of the problem, apart from a general lack of knowledge about the precedents for such advice, is the constitutional confusion about the nature of different types of advice.  The relevant constitutional principle is that the Governor-General, except when exercising the reserve powers, acts upon the advice of his or her responsible ministers.  First, it should be noted that this is confined to the advice of responsible ministers.  If ministers have ceased to be responsible to Parliament, having lost its confidence, then their advice is no longer conventionally binding.  This was not a significant issue with respect to the 1975 dismissal, although arguably the Governor-General was not obliged to accept Fraser’s advice as Prime Minister, to the extent that he had failed to establish his responsibility to the House of Representatives.

Secondly, it must be recognised that there are two types of advice.  The first is what the Palace describes as “capital A advice”, which is formal advice by responsible ministers that by convention is binding on the monarch or Governor-General (except when exercising a reserve power) and shifts responsibility from the monarch or Governor-General to his or her advisers.  This is quite different from “advice with a small a”, which is informal advice that aids a monarch or Governor-General in understanding the scope of his or her powers or the precedents and conventions concerning their exercise.  This is non-binding advice, which may be sought from and given by anyone, be it a judge, an academic, a private lawyer or a political scientist.  It has no constitutional role.  It may be used or ignored by the Governor-General.  Unlike “capital A” advice, it does not shift responsibility from the Governor-General to his or her advisers.

Whitlam was therefore technically correct when he said that the Governor-General could not accept advice from anyone other than his Ministers, if what is meant is “capital A advice”.  However, it has always been accepted that the Queen and her vice-regal representatives are entitled to receive informal advice about legal and constitutional issues from whomsoever they choose, and there are very many examples of this occurring.  It was therefore perfectly “constitutional” and within convention for Sir John Kerr to seek advice from judges, other vice-regal officers, lawyers, academics or anyone else about the extent of his powers and the conventions governing their exercise.

The decision to exercise a reserve power, however, is the Governor-General’s alone and could not be shifted to anyone from whom he or she had sought informal advice. The only person who could accept responsibility for Kerr’s decision, by which is meant responsibility to Parliament, was Malcolm Fraser, by reason of accepting a commission to form a government in the relevant circumstances.  Kerr did, indeed, make it a condition of appointment that Fraser accept responsibility for the dismissal of Whitlam, but from the public’s point of view, responsibility rested with Kerr.

None of this is to say that it would be wise today for judges to advise a vice-regal officer concerning a live constitutional crisis.  Since 1975, the rules concerning justiciability have been relaxed and the decisions of vice-regal representatives are more likely to be regarded as subject to judicial review.  The doctrine of separation of powers has also developed significantly since 1975, placing limits on the non-judicial activities of judges.  There is also a greater pool of former judges (since the imposition of a fixed retirement age) and others whom vice-regal officers can call upon for informal advice if a crisis arises.  Hence, it would no longer be wise or appropriate for vice-regal representatives to take advice from judges in Australia in the case of a constitutional crisis.

Claim 3 – “Kerr couldn’t warn Whitlam without seriously risking his own dismissal”

The final myth I want to address is one propagated by Kerr – that he couldn’t warn Whitlam without creating a race to the Palace, which Whitlam might win.  This is a weak excuse.  Yes, Kerr knew that Whitlam had very recently advised the Queen to remove the commission of the Queensland Governor, Sir Colin Hannah, to be Administrator of the Commonwealth, after Hannah had referred to the ‘bumbling ineptitude of the Whitlam Government’.  Yes, we know that Whitlam’s first response to his dismissal was to speak of contacting the Queen and that he did in fact ring the Palace as soon as it was morning in London, but by which time it was too late for anything to be done.  That is the critical point – timing.

There is a deal of evidence from other countries where such conflicts between the Governor-General and Prime Minister have occurred, that the Queen will not act instantly upon that advice.  She requires it in writing, with a full explanation of events.  She also requires a full explanation from the Governor-General.  She may require legal advice by the Crown law officers of the country concerned.  On average, it takes weeks to months for a dismissal to be achieved.  The approach taken is usually one of ‘masterly inactivity’ or ‘hastening slowly’ as British diplomats describe it, with a view to events being resolved politically or legally in the relevant country before any final decision is made by the monarch.  The tactic of delay is usually successful.  A Governor-General whose dismissal is being contemplated by the monarch still has full power to dismiss the Prime Minister.  Once the Prime Minister has been dismissed, his or her advice to dismiss the Governor-General is regarded by the Palace as ceasing to have any force.  This is because it is no longer the advice of a ‘responsible Minister’.

A recent case in Tuvalu is a good example.  In 2013, the Government lost its majority in Parliament and tried to hold onto office by not summoning Parliament so that it could avoid defeat on a motion of no confidence.  The Governor-General exercised a reserve power to summon Parliament so that the matter of confidence could be resolved.  This was thwarted by the Government using a procedural tactic on the first occasion, but when the Governor-General again summoned Parliament, the Prime Minister advised the Queen to dismiss the Governor-General.

Being aware that the Queen had been advised to dismiss him, but not having received any notice of dismissal, the Governor-General took the view that he was still in office and then dismissed the Prime Minister.  He appointed a caretaker Prime Minister who he required to convene Parliament forthwith for a vote on confidence and the election of a Prime Minister.

Urgent court orders were sought upon the validity of the Governor-General’s action.  Ward CJ granted declarations concerning the validity of the sitting of Parliament but declined to consider the issue of the validity of the dismissal of the Prime Minister or of his attempt to remove the Governor-General, pending a full hearing with all parties represented.  Parliament convened, a vote of no confidence was passed in the former Government and a new Prime Minister was elected.  The Queen took no action, as the advice she had received had been overtaken by events and there was now a different Prime Minister.  This is the way the Palace prefers matters to be resolved, so it has a strong incentive to cause delay.

Kerr was never at risk of being dismissed before he could return the same compliment to Whitlam.  Yes, if he had warned Whitlam, there would have been a real risk of the Queen being dragged into the dispute, which Kerr understandably sought to avoid at all cost.  Nonetheless, at the crucial meeting in Kerr’s office on 11 November, surely a better approach would have been to explain to Whitlam his constitutional concerns and the need to find a way to resolve them.  He could have made it clear that he was not prepared to risk the appropriations running out or to sanction potentially illegal methods of spending.  He could have faced Whitlam squarely with the options of dismissal, resignation or allowing Whitlam to advise a general election and face the electorate as Prime Minister.  Whitlam may well have chosen dismissal in those circumstances (just as Lang preferred dismissal for political reasons) rather than a forced resignation or a forced election, but the choice at least would have been Whitlam’s.  History would also have looked more kindly upon Kerr if he had given Whitlam choices rather than simply imposing a fait accompli.