April 14

The Dismissal and the Chief Justice

Governor-General Sir John Kerr’s seeking advice from the Chief Justice in 1975 was, according to The Australian on 12 April, 2013, was a “dangerous precedent”.  This is not so, as Professor Anne Twomey says, it is “actually quite hard to find an occasion when judges have not been involved in advising upon the exercise of reserve powers”.

This practice is not restricted to Australia. Lord Wilberforce told me a few years later that the Palace often sought advice from him and other senior Law Lords. 

.. advice…

 Where a viceroy is considering action against a delinquent government, it would be ridiculous if he were restricted to seeking advice from the delinquent. The exercise of the reserve power is at the Governor –General’s discretion. Clearly he may consult anyone competent.

A glance at JB Paul’s recent articles on the dismissal in the March and April 2013 issues of Quadrant and Sir David Smith’s book “Head of State” shows that while Gough Whitlam was leader of the opposition , he attempted to have the Senate refuse supply with the consequence  that the Gorton government would be then constitutionally bound to resign. He even had Senator Murphy table a paper listing the 169 earlier attempts by the Opposition to achieve this declared end.

…flouting constitutional principle…

But from September 1975 Mr. Whitlam decided to flout the very constitutional principle he had so long and so clearly enunciated. This is that a government unable to assure the provision of supply must resign.

As we know, he did not succeed. That is not to express any support or indeed disapproval of the bl.ocking of supply.  This is a party political matter, as it was in 1975.


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