[The eminent Australian political scientist, John Paul, has taken issue with a number of claims made on the ACM Facebook page highly critical of the decision on 11 November 1975 by the then Governor-General, Sir John Kerr, to dismiss the Whitlam government.
He has prepared a substantial essay, "The 1975 Constitutional crisis revisited". We propose to publish this in instalments in this new section on the website, The Reserve Powers of The Crown. The full essay, with footnotes, will be accessible on this site once all instalments have been posted.]
An ACM Facebook contributor in his Facebook entries on 1975 made many wrongheaded claims. The following claim, misleading and tendentious like most of them, is also bewildering: "The writers of the Australian constitution never envisaged a situation where multiple conventions of the Westminster system would be trashed by one side of politics in an unprecedented quest for power. They never envisaged deferring the budget or blocking it by the Upper House. The fact that this was tried clearly broke established Westminster convention."
He should have more clearly identified the conventions he claimed had been “trashed”.
…The “Convention” That Never Was..
The contributor must have meant among other things that a convention not only existed but had long been recognized that the Senate would never employ its undoubted power to refuse to pass an Appropriation Bill.
This power respecting money Bills was clearly expressed in Section 53 of the Constitution. Logan should know that such a “convention” had never been acknowledged before the 1975 crisis.
Professor Jack Richardson a year later established this in an unanswerable article in The Australian Law Journal.
This so-called “convention” was merely plucked from the air in 1975 by partisan commentators who favoured Whitlam and hoped that his discredited administration could be kept in office despite the Senate’s having voted to deny it Supply on three separate occasions.
Supply was denied by votes in the Senate on 16th October, 22nd October, and as late as 6th November. Sir Harry Gibbs, a High Court Justice from 1970 and Chief Justice from 1981 until 1987, was a compelling authority on this and on so much else.
Gibbs stated the position so clearly as to make it obvious:
The fact that the Senate did on many occasions pass Supply obviously does not indicate that it regarded itself as bound to do so in every case. A constitutional convention does not come into existence simply because someone thinks it desirable. Whether or not there should be a convention of this kind it is clear that none had been established in 1975.
Whitlam as Opposition Leader had not only acknowledged repeatedly that there was no limitation on the Senate’s use of its power respecting Money Bills but he was also supported in this most eloquently by his shadow Attorney-General and ALP Senate leader, Senator Lionel Murphy.
The Opposition under Whitlam’s leadership in 1970 pressed this to the point of attempting to drive the Gorton Government from office by openly encouraging a sufficient number of cross bench Senators to join ALP Senators in voting to throw out its Budget.
The Democratic Labor Party Senators by abstaining from voting on the relevant Bills would have enabled Whitlam and the Labor Opposition to achieve this objective.
As it happened, in spite of the Labor Party’s blandishments, DLP support enabled the Gorton Government to get its Budget through the Senate.
But the fact remains unaltered that the Labor Party under Whitlam’s leadership did attempt to drive that Government to an election for the House of Representatives which Labor was confident of winning.
Whitlam should have recalled an incident — occurring more than twenty years before the 1975 crisis — when he was a recently elected member of the House of Representatives.
Campaigning for a half-Senate election in 1953, Arthur Calwell, Deputy Leader of the Opposition and of the Federal Parliamentary Labor Party, anticipated that it would either result in giving the Labor Opposition equal numbers with the Government or better still a controlling majority in the Senate.
Calwell openly boasted that Labor in either event would be able and willing to deny Supply to a deeply unpopular Menzies Government and as a result Labor would “be in power for the Royal Visit” scheduled for early 1954.
Far from questioning Calwell’s claim, the Prime Minister acknowledged that by this device Labor could force his Government to an election. The Labor leader, Dr H. V. Evatt, while reluctant to back Calwell in this design, did not question his assumption that this design if pressed to its ultimate conclusion would have the outcome both Calwell and Menzies conceded.
And if Labor had succeeded in gaining the required Senate numbers, Dr Evatt might well have had to bow to pressure from within the Labor Caucus and back Calwell. In the event Calwell’s boast came to nothing because the Menzies Government retained control of the Senate.
…The Intentions Of The Founding Fathers…
The ACM Facebook contributor should closely consult the Convention Debates before commenting too glibly on what he assumes the Founding Fathers envisaged.
Contrary to his imaginative conceptualizing the Founding Fathers unreservedly gave the Senate the power of rejection of Money Bills (or of refusing to pass them) because the smaller colonies refused to join any federation unless this power was conceded from the outset.
Importantly the Founding Fathers did this in the full knowledge that the Senate’s activation of that power would result in a dissolution of the House of Representatives or a change of Ministry.
Among those Founding Fathers acknowledging this were three future Prime Ministers, Sir Edmund Barton who later became a High Court judge, Alfred Deakin (who did so most eloquently), and Sir George Reid. Also included were Sir George Turner, and two future High Court judges, Richard O’Connor and Sir Isaac Isaacs.
Sir Samuel Griffith, the High Court’s first Chief Justice, while not present at the 1897-8 Convention, had so declared himself at the 1891 Convention and subsequently.
Not one of the Convention delegates dissented from these statements.
…. Next: A Compelling United Kingdom Precedent….