This published address is substantially the same as the one delivered at the
Annual Conference of Australians for Constitutional Monarchy in August 2005.
The text has been extended without significant deletions to amuse and inform.
The title of this address denotes a project too ambitious to be completed in thirty minutes. Accordingly I propose to isolate some of the more colourful examples of vice-regal intervention, blasting off with the most spectacular. The 11th November next will be the thirtieth anniversary of the Whitlam’s Government’s dismissal. This event, more than any other I can recall, has been the subject of more ill-informed comment by people who should know better; and this has effectively submerged more sober assessments. I hope soon to publish an extended paper to dispose of some of the more absurd claims advanced by Gough Whitlam and his shop-soiled retinue of acolytes-cum-claqueurs. For the life of me, however, I cannot be sanguine about its reception. In any event, my approach in this address must be more perfunctory.
It was Gough Whitlam’s boast on 11th November 1975 that he was the first Prime Minister to be dismissed since Lord North. Although the administration dismissed by King George III in 1783 was known as the Fox-North coalition, the Prime Minister was neither Charles James Fox nor Lord North, but the 3rd Duke of Portland. (Lord North, the Prime Minister from 1770 to 1782, was not dismissed from that office but resigned much to the King’s annoyance.) Unlike Whitlam the Duke of Portland served again as Prime Minister ― from 1807 to 1809 ― after distinguishing himself as a highly regarded Home Secretary in the administrations of William Pitt the Younger. Portland’s second term as Prime Minister fell between Lord Grenville’s Ministry of “All the Talents” formed in 1806 and the administration of the ill-fated Spencer Perceval who was assassinated within the precincts of Parliament in 1812, making him unique among British Prime Ministers. While the present Queen is directly descended from King George III through two of his sons, Prince Edward, Duke of Kent, and Prince Adolphus, Duke of Cambridge, she is also through the late Queen Elizabeth, the Queen Mother, directly descended from the 3rd Duke of Portland. So there is something for all those present who are as addicted to the esoteric as I am.
It could be claimed that the Whig Prime Minister, Lord Melbourne (the 2nd Viscount), had been effectively dismissed by King William IV in 1834, although not in quite as peremptory a fashion as the Duke of Portland and his Fox-North coalition. Lord Melbourne was prepared at least to resign at the King’s request. And in any case, Mr. J. T. (Jack) Lang, although known colloquially as the Premier of New South Wales and not as the Prime Minister ― the two terms are used interchangeably in the United Kingdom ― was dismissed by the Governor, Air Vice Marshal Sir Philip Game, in 1932. This constituted a much more recent example than Gough Whitlam was prepared to concede in the heat of the moment.
Sir John Kerr’s action in 1975 was no more a unilateral initiative than Sir Philip Game’s in 1932. In 1975 the Senate on three separate occasions, 16th October, 25th October and 6th November, voted to defer consideration of the Appropriation Bills submitted by the Whitlam Government. These three separate votes constituted the denial of Supply, although one such vote should have sufficed. While the Senate’s exercise of this power in 1974, and again in 1975, had no precedent in the history of the Federal Parliament, it was not unprecedented in Australian experience or in the experience of the United Kingdom.
There is no doubt whatsoever that the Senate in so voting was acting within its legal powers. There is also no doubt that in the previous history of the Federal Parliament no convention had been established inhibiting the Senate from exercising that particular power. It is clear moreover from the debates of the Conventions of 1891 and of 1897-98 which drafted the Constitution of the Commonwealth of Australia that this power was vested in the Senate in the confident belief that it would be used and the consequences of its use were clearly spelt out by the leading Convention delegates. If the Senate denied Supply to an administration, that administration would be placed in a position approximating one denied Supply by the House of Representatives. That Ministry would have the choice either of making way for another Ministry by resigning or of advising a dissolution and facing the electors.
Until 12th September 1975 when Gough Whitlam spoke at a function at Goulburn, the consequences of a denial of Supply by the Senate as I have outlined them had never been questioned to my certain knowledge by any authority, least of all by Whitlam himself. His numerous statements acknowledging this, in office and out of office, are publicly recorded. In 1974, indeed, he as Prime Minister had recommended a double dissolution, as the Parliamentary state of play then permitted, on the mere threat of a denial of Supply by the Senate. When the Senate first deferred consideration of the Appropriation Bills on 16th October 1975, Whitlam, acting on his new-found doctrine as outlined previously at Goulburn, announced that he was under no obligation to resign or advise a dissolution of the House of Representatives. In so doing he was adopting an approach for which there was no single persuasive, let alone compelling, precedent. This unprecedented conduct in which he persisted until dismissed required him to flush all he knew of past practice down a memory hole.
Some academics have claimed that the Founding Fathers never contemplated an inter-House deadlock over Supply and from this they have deduced that the denial of Supply by the Senate was itself simply beyond contemplating. They are only half right. A denial of Supply by the Senate was contemplated by the Founding Fathers but not a subsequent deadlock because the obligation on a Ministry thus denied Supply ― to resign or advise a dissolution ― was seen by them as the sine qua non, as the necessary consequence, as the indispensable condition.
In Victoria in 1947 and again in 1952 and in Tasmania in 1948, the Upper House, or Legislative Council, exercised its undoubted power to deny Supply to the current Ministry. In all three instances a dissolution was expeditiously advised and the Governor in each case was not placed on the horns of a dilemma comparable with Sir John Kerr’s in 1975. The Victorian event in 1952 is of particular interest. It was a non-Labour administration that was denied Supply by the Legislative Council in which the Labour members combined for that purpose with some dissident Liberals to obtain the majority they needed to force the issue.
The most spectacular precedent had occurred in the United Kingdom sixty-six years before Whitlam’s dismissal. On 30th November 1909 the House of Lords, a part-nominated but overwhelmingly hereditary assembly, in the exercise of powers that that Chamber then undoubtedly possessed, deferred consideration of the Asquith Ministry’s Finance Bill until the matter had been placed before the people. Since 1906 when that Liberal Government had been returned in a landslide under the leadership of Sir Henry Campbell-Bannerman, the House of Lords had dealt roughly with its legislation. (Asquith had succeeded Campbell-Bannerman as Prime Minister in 1908.) The House of Lords was moreover an assembly in which that Liberal Government could have obtained a working majority only by a mass creation of new peers. These details should be noted in assessing the way the Asquith Ministry responded to that challenge by the Upper House.
On 2nd December 1909 ― within three days of that vote by the House of Lords ― the Prime Minister, Herbert Henry Asquith, announced to the House of Commons that the advice he had given King Edward VII to dissolve Parliament had been graciously accepted. In the course of his speech Mr. Asquith acknowledged that that vote in the House of Lords on the Finance Bill had left him with no other option but to go to the people. It was, in his words, “the only course which in the circumstances it is open to the Government, without either breaking the law or sacrificing constitutional principle, to pursue”. Be it noted that Asquith, to whom Whitlam laughably referred in October 1975 as “my distinguished predecessor”, never even contemplated embarrassing the Crown in November-December 1909 as Whitlam had been only too willing to do in October-November 1975.
From the outset Gough Whitlam made it clear to the Governor-General not only that he would never advise a dissolution of the House of Representatives in response to the Senate’s denial of Supply but that he was not even prepared to countenance such a dissolution being discussed. On the very evening of 16th October at a vice-regal reception in honour of the Prime Minister of Malaysia, the subject of the Senate’s vote that day was raised by the guest of honour, Tun Abdul Razak. Whitlam’s response was to turn to the Governor-General and loudly announce, “It could be a question of whether I get to the Queen first for your recall or you get in first with my dismissal”. In that way were the battle lines drawn, not by the Governor-General but by the Prime Minister.
What then was the Governor-General to do? Although there was a clear obligation on Gough Whitlam to advise a dissolution of the House of Representatives without delay, I would contend that the Governor-General was not under an immediate obligation to dismiss him when such advice was pointedly withheld. To invoke the reserve powers in dismissing a Ministry is an option of last resort, and the Governor-General was understandably reluctant to force the issue precipitately. With the prospect of a running down in lawfully appropriated moneys over the ensuing weeks, however, and with the Senate holding firm in its determination to continue denying Supply, there had to be a change of heart on Whitlam’s part if his dismissal were to be avoided.
To this day I find it almost incredible that Whitlam could not have foreseen his dismissal as a distinct reality. As I expressed it on a television programme shortly after his dismissal when the election campaign was in full swing, Whitlam seemed throughout that deadlock of his own making to have been buoyed up on a delusory wave of euphoria, hearing only what he wanted to hear and seeing only what he wanted to see. Sir John Kerr’s memoirs were to confirm this. Whitlam’s possible dismissal was a reality which consistently eluded him; it surfaced merely as a hypothetical talking-point in his heavy-handed exchanges with the Governor-General. An example of this was Whitlam’s taunt to Kerr that he would not advise a House election and that the only way one could be obtained would be if Kerr were prepared “to do a Philip Game”. The unspoken assumption behind this taunt was that Kerr would not dare take such a course of action; but woe betide him if he even tried. Given the quietly menacing demeanour Whitlam consistently adopted towards the Governor-General in pressing his case that he was bound at all times to act on his advice and on his advice alone, I find it impossible to fault Sir John Kerr on his handling of that crisis.
I shall conclude my discussion of this particular topic by quoting one of Whitlam’s own Ministers, the Honourable John Wheeldon, who said that Kerr “had to deal with a situation that few constitutional heads of State have had inflicted on them”. My contention would be that no constitutional head of State had had to cope with a situation comparable in all essentials with the one confronting Sir John Kerr in 1975. Wheeldon, a former Senator, was on stronger ground when he said further to that:
Some conventions of the Westminster system are more essential than others. The convention that a Government which is not able to carry its Budget through the Parliament should resign is one of the conventions vital to the survival of a parliamentary democracy. . . Any Government functioning under the Westminster system that tries to hold on to office without having its Budget accepted by Parliament for as long as we did ought to be dismissed.
My next example is the dismissal of Jack Lang in 1932. Lang’s second period in office from 1930 was undoubtedly a turbulent one. Evidence of this from a farcical perspective can be seen in newsreels of the opening of the Sydney Harbour Bridge. The Governor, Sir Philip Game, came under repeated pressure to dismiss Lang even from the early stages of that term. This pressure the Governor consistently resisted until the Premier himself left him with no choice. You will find a fuller statement of the issues involved in this controversy at pages ten to eleven in the statement I have had circulated. To state the matter shortly, Lang as Premier placed himself on a collision course with the Commonwealth Government in a situation where the latter was clearly supported by the force of law. The extreme steps Lang took led him from breaking the law of the Commonwealth to breaking the law of his own State.
The last straw for the Governor was when Lang issued a circular to all New South Wales departments instructing them to cease operating government bank accounts and to pay all moneys direct to the State Treasury instead. At the same time Lang directed that the Treasury be barricaded so that Federal officers could not gain access to its records. The Governor then asked the Premier to withdraw this circular claiming in justification of this request that it placed the Crown in the position of breaking the law, specifically the State Audit Act. When Lang refused, the Governor revoked his commission and invited the Leader of the Opposition, Mr. B. S. B (later Sir Bertram) Stevens, known familiarly as “Tubby”, to succeed Lang. Having accepted this commission, Stevens then advised the dissolution of the Legislative Assembly and won the subsequent election in a landslide. This was a significant triumph for “Tubby” Stevens, who had been a distinguished senior public servant, for he might not even have contemplated entering the political fray at all, as he did in 1927 by winning the Legislative Assembly seat of Croydon as a Nationalist, if Lang in his first term as Premier had not dismissed him from the office of Under-Secretary to the Treasury.
So much then for the spectacular examples of vice-regal intervention! There remains for my consideration the right of a Governor-General or of a State Governor to accept or reject advice for a dissolution of Parliament well before that Parliament’s statutory term has expired. In a political environment where the party system is one of a stable bipolarity and the incumbent government still retains its working majority, the vice-regal identity is usually boxed in to accept such advice. He may insist that the Prime Minister or the Premier provide him with a cogent statement of reasons why the Parliamentary term should be cut short, but his discretion is circumscribed. Let us suppose that he finds the head of government’s reasons unconvincing. If he refuses to accept the advice to dissolve and the Prime Minister or Premier according to convention resigns, then the Governor-General or the Governor is left with no choice but to invite the Leader of the Opposition to form an administration. If, as is almost certainly the case, the incoming Government cannot find the numbers to form a working majority then it falls to its leader to advise a dissolution placing the vice-regal identity in the invidious position of having to grant to the incoming head of government what had been denied to his predecessor.
The situation, as I have hypothesized it, would come close to replicating the position of General Lord Byng who, as Governor-General of Canada, had in 1926 refused a dissolution to William Lyon Mackenzie King after his Government had been defeated in the House of Commons. Not so long after this Lord Byng found himself obliged to grant a dissolution to Mackenzie King’s replacement, Arthur Meighen, when the latter’s administration was defeated in the Commons as Mackenzie King’s had been. I repeat that my hypothetical situation would come close to this. Constitutional experts have in the main condemned Lord Byng for acting as he did, but one prominent Canadian expert, the late Dr. Eugene Forsey, defended him no less trenchantly by pointing out that Meighen’s position in the Commons as incoming Prime Minister was not as consistently vulnerable as Lord Byng’s critics have contended. Meighen’s short term in office was not one where he was consistently defeated in the House of Commons.
I have also uncovered an interesting detail from Robert Speaight’s biography of Major-General Georges Vanier, who was appointed Canada’s Governor-General in 1959 in succession to Vincent Massey and held that office until his death in 1967 when he was succeeded by Roland Michener. Vanier, who was on Lord Byng’s staff in 1926, sympathized with the Governor-General’s predicament and was contemptuous of Mackenzie King’s exploitation of the issue in the subsequent election. According to Speaight (p. 118): “Georges Vanier was an anxious spectator not only as an honorary A.D.C. to Byng, but as his intimate friend”. Speaight recorded Byng as saying (p. 119): “I have often asked myself ─ is there anything I should have thought of that I did not think of? And frankly I don’t think there is. It is the hardest thing I have done for Canada”. To which Georges Vanier added: “And the best”. And further to that Speaight recorded the following conversation between Byng and Vanier (p. 123):
“History, I feel sure, will vindicate the stand you took when Mackenzie King asked for a dissolution.”
“George, I am only sorry the Prime Minister of Canada should have put the Governor-General in the position in which he did. After the mutual understanding which existed between us, he must have known that I would refuse his request. It was understood between us that if he did not succeed, Meighen was to have been given a chance. The wiser course for him would have been to give Meighen a chance.”
“Wiser does not seem to me to be the correct word. More honest is the better.”
As a footnote, Lord Byng relinquished the office of Governor-General of Canada in 1926 and in 1928 was appointed Chief Commissioner of London’s Metropolitan Police. Sir Philip Game on his return to England from New South Wales in 1935 was also appointed to that same office in succession to Marshal of the Royal Air Force the 1st Viscount Trenchard. Lord Byng was raised a grade in the peerage in 1928 to become the 1st Viscount Byng of Vimy and was promoted to Field Marshal in 1932.
But what of situations which are even less clear-cut? In the first eight years of the Commonwealth Parliament, Ministries were formed with a minority party following relying on support from some other party or maverick members. Elections in 1903 and 1906 confirmed the Government in office. Ministries changed, however, through the withdrawal of support occasioned by changing party alliances. It was the experience of Australia’s third Governor-General, Lord Northcote, twice to refuse a request for a dissolution. The first occasion was when J. C. Watson, Australia’s first Labour Prime Minister, on being defeated in the House of Representatives on 17th August 1904 requested a dissolution and resigned on being refused it. Lord Northcote then commissioned G. H. (later Sir George) Reid, who led the Free Trade Party. The Reid-McLean Ministry survived for a time but its experience was to parallel the Watson Ministry’s closely. On being defeated in the House on 30th June 1905, Reid requested a dissolution and resigned on being refused it. Lord Northcote then commissioned Alfred Deakin, the Protectionist Party leader, who was able to continue in office until the Labour Party which had supported him withdrew their support when the spoils of office beckoned in 1908. The incoming Labour administration led by Andrew Fisher was defeated in the House of Representatives in 1909 on a motion of no-confidence by a combination of Protectionists, who had previously given conditional support to his Government, and Free Traders (by then known as the Anti-Socialists). These two Parliamentary forces had fused to form a single parliamentary party under the leadership of Alfred Deakin. Fisher asked the Governor-General, Lord Dudley, for a dissolution and resigned when this was refused. The 2nd Earl of Dudley, to give him his full title, then invited Deakin to form an administration, his third, which remained in office until the Parliament expired in 1910. The Deakin Ministry was defeated in the subsequent election and Deakin himself withdrew from public life in 1913.
The State of Victoria was notable for a very turbulent political environment until the election of the Liberals led by Sir Henry Bolte in 1955. Some sort of stability was imposed during the long premiership of Sir Albert Dunstan from 1935 until 1945 but the party system became volatile from 1942 onwards. Details of the formation of this Government can be found on pages eleven to twelve of the paper I have had circulated. After the 1943 election John Cain Snr., as the Parliamentary leader of the Labour Party, the largest single party in the Assembly, was commissioned as Premier, but his Government lacked an overall majority over the other parties. Within five days these non-Labour parties patched up a deal to exclude him from office. On his defeat in the Legislative Assembly, Cain requested a dissolution and resigned when this was refused by the Governor, Major-General Sir Winston (later Lord) Dugan. A composite Ministry led by Albert Dunstan comprising the Country Party which he led and the United Australia Party (later the Liberals) led by Tom Hollway then held office until it folded in September 1945 in the unedifying circumstances outlined at pages sixteen to seventeen of the statement I have had circulated.
Lord Dugan, as he had become, relinquished office as Governor of Victoria in 1949 and was succeeded by General Sir Dallas Brooks. The political turmoil over which Sir Dallas was to preside has been described at pages seventeen to twenty in the paper I have had circulated. It was Sir Dallas Brooks’s experience early in his term as Governor to refuse a dissolution three times in as many years. That is to say, in 1950 and twice in 1952. This must constitute something of a record.
All this stands in such marked contrast with the situation in the United Kingdom. Taking as a starting point the Glorious Revolution of 1688, as it was known, every Government facing an election, certainly from the resignation of Sir Robert Walpole in 1742 until 1830, did so with the active support of the Sovereign and until the election of 1830 every such Government was returned. The 1830 election, however, resulted in the defeat of the Tories led by the Duke of Wellington, whom King William IV had backed, and in the triumph of the Whigs led by the 2nd Earl Grey. Lord Grey was the Prime Minister responsible for the Reform Act of 1832. In that long period there was therefore no question of a request for a dissolution being refused. In the subsequent period dissolutions have been obtained readily enough, even in the volatile period from the split in the Tory Party occasioned by the repeal of the Corn Laws in 1846 until 1874 when Benjamin Disraeli formed the first majority Conservative administration since that split.
I attended a seminar at Nuffield College, Oxford, early in 1986 when the guest speaker was Roy Jenkins, who had served as Minister of Aviation, Home Secretary and Chancellor of the Exchequer in the Labour administrations of Harold Wilson and had also been the leader of the breakaway Social Democrats from 1981 until 1983. Discussing the possibility of the next election resulting in a House of Commons in which no one party had a majority, Jenkins flatly ruled out the likelihood of an immediate dissolution being refused to whomsoever was commissioned as Prime Minister. He considered that a convention had been established that a dissolution was not to be refused. He did, however, acknowledge that if the subsequent election resulted in a House of Commons with the party strengths substantially unchanged, then another dissolution would not be recommended and it would be necessary for the party leaders to be consulted with a view to the formation of an administration based on some sort of inter-party understanding.
I did not raise that particular issue with him at that seminar. Where Jenkins was concerned, I had other fish to fry, notably how consistently he would continue to advocate proportional representation if perchance the Social Democrats and Liberals were to win office under the current system of simple majority/simple plurality voting which is commonly misnamed “first-past-the post”. He responded to my question to this effect by saying that he was resolutely opposed to maintaining the present system of party government by Buggins’ turn, as he put it, even if his party alliance should benefit from it in the short term. I am not sure, however, that Jenkins was on firm ground in his assertion that the Sovereign’s right to refuse a dissolution had effectively gone out of existence through atrophy. It would, in my view, be an unconscionable waste of public money to consent to an election which would then confirm all the portents by emerging as supernumerary when the ultimate solution as conceived by Jenkins of some sort of inter-party pact would be the more sensible one to seek immediately.
Harold Macmillan, 1st Earl of Stockton, died at the end of 1986. He had been elected to succeed Edward Frederick Lindley Wood, 3rd Viscount Halifax and then 1st Earl of Halifax, as Chancellor of the University of Oxford. Halifax, a former Viceroy of India and a future Foreign Secretary, had been elected to this office as Lord Irwin (1st Baron) to succeed Viscount Grey of Falloden on his death in 1933. Lord Irwin succeeded to his father’s viscountcy in 1934. Lord Halifax’s death in 1959 left the vacancy Macmillan successfully contested against Sir Oliver (later Lord) Franks. Early in March 1987 at the election of a successor to Lord Stockton, Roy Jenkins was able to defeat two rival Tory candidates, Lord Blake, a biographer of Disraeli and a historian of the Conservative Party, who had been the Provost of the Queen’s College, Oxford, and the former Prime Minister, Edward Heath. Jenkins was able to do this by obtaining, not an outright majority over his two rivals, but a simple plurality of the total vote. It was a delicious paradox that the electoral system applying in that three-cornered contest for the Chancellorship was the very same as the one still applying for the House of Commons, an electoral system of which Jenkins was so scornful. One jaundiced observer claimed that the outcome of this election, if not the field itself, signified a revival of Oxford’s claim to be the home of lost causes. As if to confirm this, Roy Jenkins three months later lost his seat in the House of Commons.
This particular general election put an end to the speculations as to its outcome aired at that Nuffield seminar I had attended. It confirmed Margaret Thatcher’s Conservative administration in office with 376 seats compared with the 397 seats the Conservatives had won in the election in 1983. On being offered a peerage, Jenkins found that there was already a peer rejoicing in the title of Lord Jenkins, which precluded him from taking that same short title. Rather than allowing himself, as he put it, to adopt “the senile anonymity of a territorial title”, Roy Jenkins compromised by entering the House of Lords as Lord Jenkins of Hillhead, incorporating into his short title the name of the Glasgow constituency he had recently represented in the Commons as a Social Democrat.
One of Jenkins’s predecessors as Chancellor of the University of Oxford, Lord Grey, had to confront the same dilemma. As Sir Edward Grey, he had been appointed Secretary of State for Foreign Affairs in December 1905 and had continued serving in that post until December 1916. This constituted a record term which is still unbroken and which exceeded the periods in office of Grenville and Castlereagh. In July 1916 he had been offered an earldom by the Prime Minister, Mr. H. H. Asquith, and hoped he could enter the House of Lords as the Earl Grey of Falloden. His second cousin Albert, the 4th Earl Grey, of Howick, objected to this proposal as he felt that the existence of two Earl Greys would duplicate the historic title the 2nd Earl Grey had borne and therefore be confusing. The prospective Earl Grey of Falloden had no issue; his title would therefore become extinct upon his death. For this reason I consider the objection by Sir Edward’s cousin should not have been pressed. Sir Edward felt nonetheless that he could not ignore it. Disdaining a purely territorial title, as Roy Jenkins was to do more than seventy years later, Sir Edward therefore chose to accept a peerage below the rank of Earl and entered the House of Lords as Viscount Grey of Falloden.
But to return from these ephemera to Australia’s more mundane experience, I would draw your attention to two instances where a Governor has acted in a very sensible manner in a potentially controversial setting. These occurred in Queensland in 1987 and in Tasmania in 1989. They are outlined more fully on the twenty-second and final page of the paper I have had circulated,
An Historical Account of the use of Vice-Regal Roles in Australia