October 10

Would our constitution have been different?

[In this fifth instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines, with the benefit of Australian precedents, whether our constitution would have been different had it been drafted after 1911 when the power sof the House of Lords were curtailed.]

 …if The Constitution Had Been Drafted In 1911 Or Later?

It is a great shame that the Australian constitution was not written in 1911 and not prior to this,” argues a contributor to the ACM Facebook page

His presumption is that the Founding Fathers would have treated Westminsters Parliament Act of that year as their lodestar and consequently the Senates powers respecting Money Bills would have been drafted to replicate those of the House of Lords from 1911. 

I would not be so confident. 

I would contend that the fears entertained by the smaller colonies at being overwhelmed by the larger colonies in any federal compact would still have been a potent force driving them in their insistence on a Senate as powerful as the one enshrined in the Australian Constitution proclaimed in 1901. 

And in any case if the federation of the Australian colonies had been deferred for more than ten years,  there might not have been any kind of agreement to federate. 

Alfred Deakin contended that the federation of the Australian colonies as he had witnessed it had been secured by a series of miracles and these might not have come into play in 1911 and thereafter. 

A noted historian of the Conventions in the 1890s, Professor John La Nauze, once claimed in my hearing that if the Australian Labour Party had been able to exert a more powerful influence than proved to be the case in the 1890s but was very much the case in 1911 there might well not have been any kind of agreement to federate.

….some compelling Australian precedents….

There were moreover precedents in the Australian States for an administration in control of the Lower House bowing to the will of an Upper House which, empowered to deny Supply, did so. 

In each case the Lower House was dissolved.  This occurred in Victoria in 1947 when the Labor Premier, Mr John Cain, felt he had no choice but to go to the people.  It occurred in Tasmania in 1948 when the Labor Premier, Mr Robert (later Sir Robert) Cosgrove, felt he had no choice in similar circumstances but to follow John Cains example. 

And it was repeated in Victoria in 1952 when the Country Party Premier, J. G. B. (later Sir John) McDonald, governing with Liberal Party support from the corner benches, advised a dissolution when the Legislative Council, controlled by the Labor Party and some dissident Liberals, denied Supply to his administration.[1] 

The subsequent election, which Labor had been instrumental in forcing, gave that party in Victoria its first opportunity to govern without being dependent on other parties or Independents. 

Whitlam himself set his own precedent in 1974 by obtaining a double dissolution on the strength of six Bills which the Senate had failed to pass and which were thought to have fallen within the provisions of Section 57 of the Constitution.  When the Appropriation Bills were before the House of Representatives on 4th April Whitlam declared:

If the Senate rejects any money Bill . . . I shall certainly wait upon the Governor-General and I shall advise the Governor-General not merely to dissolve the House of Representatives but to dissolve the Senate as well. . .  . . .  If the Senate rejects them [the Appropriation Bills], not only is there a powerful argument of those matters which the Senate has already twice rejected and been twice passed by the House of Representative but also there will be the additional powerful argument for the Prime Minister to give to the Governor-General that the Senate is deliberately withholding Supply. . .  [2]  (Squared parenthesis supplied)

When the Senate on 10th April 1974 moved an amendment only to allow Supply to his administration upon the Government submitting to an election for the House of Representatives, the Government Leader in the Senate, Senator Murphy, moved

That the question be now put adding:  "If that motion is defeated, the Government will treat that as a denial of Supply.  If that motion is carried and this absurd amendment is carried, the Government will treat that also as a denial of Supply.  In either event, the Prime Minister, who is conversant with the absurd proposition which has been put here, will call forthwith upon His Excellency the Governor-General.[3]

While Murphy attacked the motion and the amendment as absurd he did not question the consequences of a denial of Supply by the Senate any more than the Gorton Government in 1970 could have avoided the consequences of the Labor Partys opposition to the carrying of that Governments Budget if a sufficient number of Senators had joined them in rejecting it. 

Furthermore neither Whitlam nor Murphy asserted in April 1974 that the Appropriation Bills had to be brought to a vote rejecting them outright and defeated on that vote before there could be any question of the Prime Minister seeking a dissolution.  This was a spurious argument favoured by Whitlam in October-November 1975.    

[1]               Sir John Kerr discussed all these three denials of Supply followed by dissolutions in his Matters for Judgment, (1978), pp. 126-32.  This author also discussed them specifically in a chapter entitled “Governors and Politicians:  the Australian States principally in the 1940s and 1950s”, in D. A. Low (ed.), Commonwealth Heads and Political Crises:  Commonwealth Episodes, 1945-85, Macmillan 1988, pp. 37-56.

[2]               Commonwealth Parliamentary Debates, Vol. H. of R. 88, p. 1054.

[3]               Commonwealth Parliamentary Debates, Vol. S. 59, p. 893.


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