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Was the Governor General right to argue that he had the constitutional authority to dismiss the Whitlam Government or was Whitlam correct in arguing that the principle of responsible government should prevail? On the 11 th November 1975, the Australian Governor General, Sir John Kerr, dismissed the federal Government of Gough Whitlam and commissioned Opposition Leader Malcolm Fraser as Prime Minister. The dismissal and the events leading to it clearly demonstrated the friction between constitutional authority and responsible government. In a spiral of events, responsible government and the overall concept of democracy was blatantly ignored, and technicalities within the constitution abused, leading to the dismissal of a democratically elected Prime Minister.
While the Governor General s decision was constitutionally allowed, it was certainly not the responsible or democratic action that should have been taken. Despite their victory in the double-dissolution election of 1974, the Labor Party found themselves once again without a majority in the Senate, deadlocked with the Liberal/National coalition at 29 seats each, with 2 going to the independents. 1 They received a further blow with the death of one Labor Senator and the resignation of an other. In this particular situation, according to the Constitution, under Section 15, such vacancies were to be filled by the state from which the former senator came from by a nomination from a joint sitting in the House of Parliament. However in the principal of responsible government and democracy, unwritten convention had developed that the casual vacancy should be filled by a member of the same political party, in this way maintaining the representation of the previous election.
Both the New South Wales and Queensland governments broke with this convention and the two vacancies were not filled by the Labor Party s nominees. Even at this early point the tension between written and unwritten constitution was starting to take effect. As a result of the actions of the State governments, Whitlam faced a Senate where the Opposition could block its legislation. Only two years later, the Fraser government successfully sponsored a Constitutional amendment to change the written Constitution so that the Senators are replaced by someone of their own political party. This is somewhat ironic since it was only after Fraser had used this technicality to give him majority that he acknowledged that responsible government would have been the more democratic and sought to change it. It also brings to light the fact that Fraser at times was willing to ignore responsible government if it was to his advantage.
Malcolm Fraser used this majority in the Senate to announce that the Senate would delay the governments supply bills until Whitlam called an election. Constitutionally this was possible since the Constitution did not explicitly state that the Senate can not block supply. However, Whitlam rightfully believed that the Senates action in refusing to pass his governments supply bill was in direct contradiction to the conventions of responsible government as it was interfering with representative democracy. In the Senate s position as a house of review, it may certainly refuse to pass bills, whether they be supply bills or otherwise to protect states interests or if it objects to the contents of the bill.
However in this unprecedented decision, the Senate had candidly blocked supply solely for the political reason that it objected to the Government. If the Senate could exercise these powers in such a way they would be able to bring down a democratically elected Government whenever they seemed supply. These events proceeding the dismissal serve as an example of the tension that had existed between the written and unwritten constitution and have already demonstrated the need for responsible government. The Governor General in trying to solve the supply problem consulted the Chief Justice of the High Court, Sir Garfield Barwick, who advised him to sack the Government.
He then consulted Fraser with out the knowledge of Whitlam. The Governor-General at this point appointed him as a caretaker Prime Minister and announced a double dissolution of the two Houses of Parliament. The Senate now acting in support of the new Fraser caretaker government passed the supply bills. The Constitution in theory, gives the Governor General sweeping powers. He is able to appoint and dismiss whole governments, and Sir John Kerr had acted within his formal constitutional powers in dismissing Gough Whitlam. As specified in Section 64 of the Constitution, The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor General in Council may establish.
Such officers shall hold office during he pleasure of the Governor General. 2 The Governor General and Chief Justice Barwick had justified the dismissal on the grounds that Whitlam had lost the confidence of the Senate when it blocked the supply bill. They argued that confidence was needed from both houses of parliament and since they didn t have this they were under obligation to resign or call a general election. This move by the Governor General however was in direct contradiction to the basic principal that the person appointed should be supported by a majority in the House of Representatives. The Governor General further broke with convention in failing to follow advice from the Prime Minister. As a representative of the Queen, the British Foreign Office and the Commonwealth Crown Law Office had been advised that whatever his formal powers may be, they should only be used in accordance with the PMs advice. Therefore the Governor General had broken the guidelines provided by the people he was supposed to be representing.
Kerrs argument that Whitlam had failed to obtain supply was also flawed. At the time Kerr dismissed the Whitlam Government, the Government still had enough money to run the country for another 19 days. Should he have given him more time and had Fraser not felt the Governor General s support in the matter, it is possible that the Senate would have passed supply in time. Given this time, Liberal Senators themselves could have turned against them for their unethical approaches. They also had to consider public opinion which was already turning sour and would only have intensified had the supply bill continued to be blocked. It seemed very unlikely that the Senate could block the supply for much longer.
And even if it had come to that, Whitlam could still raise loans from the major banks to pay for Government expenses. This certainly undermines Kerrs dismissing Whitlam on the count of a financial crisis, since they had not reached that point and it didn t seem likely that they would. Not only was it against responsible government for the Governor General to dismiss the Government for failing to obtain supply, but the Whitlam Government had not incontrovertibly failed to obtain supply. The Governor General also failed to give any warning that he intended to dismiss Whitlam. Even if the Governor Generals reasons were justified, he did not give Whitlam the opportunity to modify the way he was dealing with the situation.
Had he been given warning it may have changed Whitlam s own solution to the stalemate, which was to call a half dissolution of the Senate. In fact he seems to have deliberately kept his intentions secret, and told everyone other than Whitlam of his plans. He sought the advice and support of Chief Justice Barwick, with out Whitlam's knowledge, and in a even more controversial move he even discussed his plans with Opposition Leader Malcolm Fraser. These do not seem the actions of a man with legitimate reasons for his actions.
The Constitution is not perfect. There are parts that are ambiguous, as demonstrated in the Senate interpretation of section 53 in the blocking of the supply bill, and it can at times can be very misleading, since it fails to mention the Prime Minister at all and gives the appearance of wide ranging powers by the Governor General. It is also restricted by the fact that it can not incorporate all situations. It is for this particular reason that responsible government is so vital.
In order to fulfill the fundamental principals which the Constitution stands for sometimes we need to move beyond the words of the text. The fact that some conventions are unwritten should not make them any less important. The Constitution can be manipulated if taken completely literally, creating results that are against the democracy it stands for, as was the case in the dismissal of Whitlam. The Governor General did have the Constitutional authority to dismiss the Whitlam Government. However responsible government and the democracy the Constitution stands for should not have allowed it.
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