Whitlam Dismissal

January 5, 2018 | Author: Anonymous | Category: Social Science, Law, Constitutional Law
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The Whitlam Dismissal

What have been some important political developments in post-war Australian history?

How have significant individuals and groups exercised their democratic rights in the postwar period?

On November 11 1975 , for the first time in Australia’s Federal History a democratically elected Government was dismissed by the appointed Governor General, the Queens representative. The debate still rages today The impact still reverberates in Australian politics

The Senate is primarily intended to be a States house and a house of review.

Governing without Supply The Loans Affair

It has the power to reject or defer money bills or appropriation bills. 1975 was the first time since Australia's federal government was established in 1901 that the Senate had blocked Supply.

Does an elected government have the right to govern for 3 years?

The Role of the Senate

Australian principals of democratic government originate from two the sources - the constitution itself and the conventions that surround its application. A convention is the typical, usual or accepted manner in which an aspect of government operates.

Constitutional Power of Governor General ( an appointed official) The right to sack an elected government

Australia is a constitutional monarchy. It has a democratic system of government, however, its Head of State is the Monarch, when that person is in Australia, or the Governor-General otherwise. Much of the Governor-General's role is ceremonial or symbolic - opening Parliament, swearing in Government ministers. However, he has a number of more substantial functions, such as serving as president of the Executive Council, which attempts to ensure that all actions of the government are constitutionally correct and lawful. The Governor-General also has another set of powers called `reserve powers'. Not all the reserve powers are fully spelt out within the Australian Constitution and some which are clearly stated have never been employed. For example the Governor-General is nominally the Commander-in-Chief of Australia's armed forces, however, he never acts in this capacity. It was one of these powers that Sir John Kerr called upon when he dismissed the Whitlam Government.

The Whitlam Labor Government came to office on December 2, 1972. It was the first time in 23 years that a Labor Government had been elected. Some analysts also claim that for the Liberal/National Country Party Coalition, having been in government for a generation made it difficult for its members to accept either their new position as the Opposition or the legitimacy of the Whitlam Government. The Whitlam Government introduced a program of marked reform. This reform program included pulling Australian troops out of Vietnam; banning sporting contact with South Africa; commissioning inquiries into Aboriginal land rights; abolishing education fees; supporting women's rights; lowering the voting age to 18; modifying the electoral system; introducing Medibank (universal health insurance funded through taxation) and making welfare payments available to single parent families.

Mixed with the Government's program of reform were a series of scandals and administrative blunders, including the Whitlam Government's ill-fated attempt to raise money through loans from the Middle East in a manner that was widely condemned as illegitimate. These scandals and blunders served to discredit the Government in the eyes of the Opposition and later the electorate. High inflation and high unemployment also damaged the Whitlam Government.

Throughout its period in office the Whitlam Government never had a clear majority in the Senate. From December 1972 to December 1975, the Coalition was able to use its numbers in the Senate to form alliances with either Democratic Labor Party senators or independents and reject many government bills. In April 1974 the Whitlam Government went to an early election in an attempt to prevent the Senate from frustrating its legislation. It won this election, but did not secure a majority in the Senate. On October 15, 1975, the Coalition used its numbers in the Senate to block the Whitlam Government's Appropriation Bills. This denied the Government the money it needed to govern.

World Wide oil crisis leads to Inflation and rising interests Labor Unpopular Party due to scandals Constitutional crisis

“My view is that……the Governor General will act on the advice of his ministers…as the Queen does on the advice of hers.”

“The Governor Generalship is a developing institution….coming more and more to symbolize Australia’s independent identity. This is done on the basis of knowledge and understanding by the Governor General of policies and principles.”

Ladies and Gentlemen. Well may we say 'God save the Queen', because nothing will save the GovernorGeneral. EG Whitlam, 11 November 1975

Malcolm Fraser- Leader of the Liberal Opposition REX CONNOR Labor Minister for Minerals and Energy

KHEMLANI- LOANS power broker

Sir Garfield Barwick Justice of the High Court

“The appointment is a responsibility I am looking forward to. It provides the opportunity to play a non-controversial but important role in national affairs...”. Sir John Kerr on his new appointment as Governor-General. John Kerr, born in Balmain the son of a boilermaker, began his career as a lawyer in 1938. He had been financially and academically mentored by HV Evatt through his University years. Evatt had written a book in 1936 called The King and His Dominion Governors where he explored the reserve powers of the Governors under the Constitution Kerr was a member of the Labor Party until the Labor Party-Democratic Labor Party split of 1955, after which he allowed his Party membership to lapse. From that point Kerr became increasingly involved with the legal establishment and cultivated his relationships with Liberal politicians. In 1966, the Liberal Government appointed Kerr Judge of the Supreme Court of the ACT and the Commonwealth Industrial Court. In 1972, Kerr was appointed NSW Chief Justice, and knighted the same year. He accepted Gough Whitlam’s appointment as Governor General in 1972

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After the 1972 elections the Labor Party had 26 members in the Senate, Liberal Country Party had 27 Four DLP members who usually voted with the Liberals Two Independents who voted with Labor

In April 1974 Whitlam offered a DLP Senator Vince Gair, the job of Ambassador to Ireland. This was seen by the Opposition as a trick to get rid of a political opponent  Using a majority in the Senate, Snedden threatened to deny funds to the Government to force Whitlam to the polls. Leader of the Opposition in the Senate, Reg Withers, argued that:  “Because of its maladministration, the Government should not be granted funds until it agrees to submit itself to the people.” 

Whitlam embraced the election Snedden was forcing, intending to secure a further three year term of government. He advised the Governor-General to dissolve the House of Representatives and the Senate for an election. An election for both the House of Representatives and the Senate was held on May 18, 1974. Both Snedden and Whitlam campaigned hard. Both believed they would win. The election proved to be one of the closest in Australia’s history. It took ten days for the results to become clear. Whitlam became the first Labor Prime Minister to be re-elected—but a majority in the Senate still eluded him. In the House of Representatives, the Labor majority was reduced from nine to five seats. In the Senate it was much closer. Labor secured 29 Senate seats, as did the Coalition. Two conservative Independents won the remaining Senate seats, Liberal Movement Senator Steele Hall (SA), and Michael Townley (TAS), who was admitted to the Liberal Party shortly after the election.

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32 Labor seats 37 liberal seats Australian Greens 5 seats Bob Brown Family First 1 Steve Fielding Independents 1 Nick Xenophon

In mid-1975, the Government and Opposition were evenly balanced in the Senate, as long as the two Independents voted with Labor. But on June 30, Queensland Labor Senator Bert Milliner died suddenly and everything changed.  Queensland Country Party Premier, Joh Bjelke-Petersen, was vigilant for any opportunity to subvert the power of the federal Labor Government. He believed Whitlam was pursuing a centralist, socialist agenda that was destroying his State. Now Bjelke-Petersen had a chance to influence the balance of power in the Senate—attacking the Federal Government where it was weakest. Bjelke-Petersen used his influence in the Queensland Parliament to secure the appointment of a complete unknown to fill Milliner’s place. Albert Patrick Field stepped out of obscurity and into the limelight. Although he was a member of the Labor Party, Field was openly hostile toward Whitlam and his Government. This ensured his nomination by Bjelke-Petersen 

Rex Connor had plans to make Australia’s minerals and energy resources the cornerstone of the Australian economy. To finance his vision he needed four billion dollars. The meeting at the Lodge gave Connor authority to raise a loan. The loan was sought from the Middle East, awash with ‘petrodollars’, following massive increases in oil prices in 1973 and 1974. A London based broker, Tirath Khemlani, was used by Connor to arrange the loan in return for a substantial commission. It was expected that the loan would come through in the short term. It did not. Try as he might, Connor was unable to contact Khemlani and in the end no loan was ever obtained, and no commission was paid. Approval to seek the loan was withdrawn on January 7, 1975, but renewed on January 28, 1975 for the lesser amount of two billion dollars. Connor’s authority was finally withdrawn on May 20, 1975. The same day in the House of Representatives, Opposition Leader Malcolm Fraser began a sustained attack on the Government.

When Whitlam, Murphy, Connor and Cairns met at the Lodge they met as the Executive Council. Under the Australian Constitution, Executive Council meetings are held for the Governor-General to approve Government decisions. The Governor-General is not required to be at these meetings but it is convention that he be informed of them in advance

Malcolm Fraser argued that appropriate procedures had not been followed in authorising the loan. “The facts... raise the strong possibility that there was an illegal conspiracy to defraud and to deceive”. Whitlam responded by asserting that: “...no responsible person has...made any specific charges of impropriety, of illegal or corrupt conduct on the part of my Government”.  Then on October 10, 1975, Khemlani flew to Australia intending to secure his commission. He brought with him evidence of correspondence with Connor dated after Connor’s authority to negotiate had been withdrawn. The fate of Rex Connor was sealed. He resigned from Cabinet on October 13, 1975. But the damage had been done. The credibility of the Labor Government had been shaken, its position weakened, and the way paved for the Opposition’s final assault. Two days later the Opposition made a decisive move to oust the Whitlam Labor Government. 

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At 2:56pm Fraser announced that he would use his Senate majority to block Supply until the Government agreed to call an election. In Fraser’s view: The opposition now has no choice. We will use the power vested in us by the Constitution and delay the passage of the Government’s money bills through the Senate until the Parliament goes to the people. Whitlam responded: I state again the basic rule of our parliamentary system: Governments are made and unmade in the House of Representatives—the people’s House. The Senate cannot, does not, and must never determine who the Government shall be.

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Fraser harnessed what he saw as his opportunity to catch Whitlam ‘with his pants well and truly down’. At 2:56pm Fraser announced that he would use his Senate majority to block Supply until the Government agreed to call an election. In Fraser’s view: The opposition now has no choice. We will use the power vested in us by the Constitution and delay the passage of the Government’s money bills through the Senate until the Parliament goes to the people. Whitlam responded: I state again the basic rule of our parliamentary system: Governments are made and unmade in the House of Representatives—the people’s House. The Senate cannot, does not, and must never determine who the Government shall be.

The Queen was not informed of the Governor Generals intention to sack the Prime Minister, nor did he ask her approval. He did however ask the advice of Sir Garfield Barwick, Justice of the High Court and a former Liberal Attorney General

Whitlam was outraged by his dismissal. As soon as Fraser was commissioned as PM the supply bills were passed in the Senate. In the House of Representatives the Labor Party immediately moved a vote of no confidence in the new Liberal Government which was carried 64-54. When a Government loses such a vote the convention is for another Government to be formed


"a perversion of our democratic process" Julia Gillard

"Kerr's duplicity and secrecy was contemptible, as was the Liberal Party's fantasy of a divine right to rule," Senator Stott Despoja

"We are the people who brought about the clash of political wills. We are the people who stretch the fabric of the constitution … and I think it's been one of the great injustices of Australian history that John Kerr — whose fate it was to resolve a deadlock he did not create — has been so savagely maligned by history. John Howard

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Although the Australian Constitution gives the exercise of a wide range of powers to the Governor-General, the central convention of responsible government is that the Governor-General only exercises these powers in accordance with the advice tendered to him or her by the Prime Minister and the other ministers of State. The only exception to this convention is what is known as the “reserve powers”. The reserve powers allow the Governor-General to act with some small degree of personal discretion, without or contrary to Ministerial advice. They are the right of the Governor-General to restrict, refuse or override the authority of an elected government. The use of the reserve powers is restricted to those very few situations when others fail to adhere to the central conventions of responsible government, or when the agreed conventions fail to supply an answer to a situation. In practice, the reserve powers are only an instrument of last resort

Australians seem to view failure as heroic: we have the Eureka Stockade, Ned Kelly, and Gallipoli, among others, who are, at first failures, but they have been mythologised as legendary heroes.  In a number of letters, emotional responses of martyrdom and `embryonic' mythology are clearly evident. When we survey, today, the Australian ethos, history has judged, Whitlam a great Australian icon, Kerr has become a twisted, somewhat evil character, while Fraser has become a forgotten figure 

The Australian crisis illustrates how unwritten conventions can operate flexibly during a crisis, seen by some as a benefit, while being used by others as an argument for the codification of the reserve powers  . The latter view is not accepted by many prominent Australian constitutional scholars, who argue that the flexibility is needed, and would be lost in codification. It is argued that in a system where the Houses have equal power, a head of state with wide reserve powers is required to serve as umpire.  Codification of powers essentially eliminates the vice-regal ability to use discretion in their exercise, and these scholars argue this discretion is necessary in order to resolve unforeseen difficulties 

 The crisis did precipitate one constitutional change, passed by referendum in 1977, that effectively requires that State Governments to fill Senate vacancies with a member of the Party of the original holder of the seat, if they choose to fill the vacancy at all.

The dramatic events fuelled those who called for a referendum on the “ Republic” to rid politics of “ crown interference”. They used the argument that the dismissal proved that the Constitution was inherently flawed. Their efforts culminated in the Republican referendum of 1999

It is argued that the subsequent Labor Government, led by Bob Hawke, was so frightened of repeating the mistakes of Whitlam which led to the dismissal that it became one of the most conservative Labor Governments in our history. It is certainly true of the early years of that government that Whitlam's name was evoked as something to be feared, whereas in recent times Whitlam has assumed a more iconic status in the Labor Party

“The significance of the dismissal on November 11 1975 was a profound development, a stunning shock to most Australians whatever side of the political divide they inhabited. The Dismissal caused deep political and personal ripples in the lives of many Australians, particularly those who had come of age in the 1960’s and 70’s.” Sybil Nolan  “ In the immediate aftermath of the dismissal Australians were probably more divided than at any other time in the 20th century.” Geoffrey Blainey 

“we do think Mr. Fraser was wrong to use the Senate so unconventionally – no matter how much the Labor Government deserved to be censured. We think he has opened the way to unstable government; he has opened the way for a future Labor Opposition to do the same thing to a future Liberal Government. No Government is now safe – no matter what numbers in the Lower House – unless it also controls the Senate. The Senate has become the kingmaker in national politics. So we might have elections every years. What a thought! What insanity! What a perversion of the spirit of the Constitution!”

Whitlam dismissal Whitlam was dismissed on 11 November 1975 and became the only Prime Minister to have been dismissed from office. It occurred because Whitlam had a hostile Senate controlled by the opposition, who used its power to delay the passage of the Supply Bills. It also occurred because two Labor/pro-Labor senators had been replaced by two Liberal/pro-Liberal senators creating an even more hostile Senate. Whitlam believed he had time to try to force the Bills through the Senate so he refused to resign. There had been a series of scandals involving government ministers. Although Whitlam had been elected in 1972 and should not have needed to go to the people with another election until 1975, he did not control the Senate and, to try to gain control of the Senate, he had called for a double dissolution election in 1974 when it should have been only a half-Senate election to try to gain a majority. The dismissal caused a huge controversy which continues to this day.

Sir John Kerr The governor general appointed by the Queen on the recommendation of Gough Whitlam, then prime minister. After receiving advice from various people, he resolved to solve the impasse created by Whitlam’s refusal to resign by dismissing him. He used the ‘reserve powers’ of the governor-general, as written in the Constitution, under which he had the power to dismiss a prime minister if that person could no longer govern. In the opinion of Kerr, Whitlam could no longer exercise his role as prime minister because he could not guarantee supply and therefore he should resign. When he did not, Kerr exercised his reserve powers. Many believed that Kerr did not have the power to dismiss the prime minister and that Whitlam should have been given the opportunity to go to the people for another election. Others believed that Whitlam should have done the ‘right thing’ and resigned before Kerr was forced to act, as other prime ministers had done in the past and that Kerr, indeed, had the power to do what he did.

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