Wednesday, 8 June 2011

Should The Whitlam Government Have Been Dismissed?

Below is an edited version of an essay I wrote for my Honours year in 2006 when I examined the history of the ALP

The dismissal of the Whitlam Government from office on November 11th 1975 is arguably the most tumultuous event in Australia’s political history. It is important to examine the events of the dismissal in three differing but equally important parts. Firstly, to focus upon the major events during the second term of the Whitlam Government leading up to the dismissal, which provides background for the events to follow. Secondly, to assess the three major players within the 1975 Constitutional Crisis, namely, Prime Minister Gough Whitlam, Opposition Leader Malcolm Fraser and Governor General Sir John Kerr. Finally, to evaluate Kerr’s decision to dismiss Whitlam as Prime Minister and install Fraser as a caretaker replacement.It will conclude that all three parties were at fault during the crisis.  Whilst Kerr was justified in a legal sense, the constitutional crisis could and should have been handled better.

The Whitlam Government’s first term in office provided a precursor of things to come. At the 1972 election, the ALP won 67 seats out of 125 in the House of Representatives to form a government. It was the first time the ALP had won office for more than 23 years, and the party’s exuberance and inexperience was brought immediately to the fore. Upon taking the oath as Prime Minister, Whitlam immediately formed a two-man government with Lance Bernard, which would continue for the first three weeks of the government’s term. The reforms they implemented such as pulling troops out of Vietnam, and instituting a wide ranging program of social reform would continue throughout the first term of the Whitlam Government. However, the dominant feature of the government in general was that Caucus (the parliamentary ALP) had a lack of economic experience. This would prove to be particularly crucial while the world’s economic situation generally worsened. This trend would continue over the next three years, and indirectly lead to the implosion of the Whitlam Government. 

The results of the 1974 election shaped the political environment for the following 18 months. It was the second time in 17 months the public went to the polls after Opposition Leader Billy Sneedon blocked the Supply Bills for the year, in a move that would set a dangerous precedent. However, this move would indirectly prove unsuccessful for the opposition as the ALP won 68 seats out of 125 in the House of Representatives. More importantly, however, the ALP and the Opposition tied on 29 Senate seats apiece, with two Independents controlling the balance of power. This effectively meant that the government was unable to pass its reforms, and the majority of the bills would be stalled or watered down. Essentially, these factors would create the circumstances that would precipitate the constitutional crisis. 

The appointment of Sir John Kerr as Governor General gave Whitlam the false impression that he would be subservient to Whitlam’s needs. Kerr was appointed as Governor General in February 1974, and was not the first choice to replace the outgoing Paul Hasluck.  High profile businessman Ken Myer had already turned down the offer. However, Whitlam had known Kerr for 25 years as they were both Sydney lawyers and Kerr was well respected amongst the Sydney law community. Kerr was previously Chief Justice of New South Wales and Chairman of the Commonwealth Industrial Relations Commission. Based on this experience, Kerr was looking for substance over style within the position of Governor General, and asked two important questions of Whitlam. Would he be reappointed and could he perform substantive duties?  In answer to these questions, Whitlam agreed to a ten year term, but more importantly, Whitlam saw Kerr’s role as procedural rather than advisory in which Kerr would follow Whitlam’s advice at all times. However, Whitlam did not make this clear upon Kerr’s appointment.  Whitlam thus overestimated Kerr’s loyalty as well as his ability to adhere to the procedural requirements of the Governor General.

The change in the Liberal leadership elevated Fraser to leader of the Opposition, and with it came a change in policy for the Coalition. After the 1974 election, Sneedon appeared out of his depth and was consequently challenged by Fraser in 1974 but, nevertheless, won easily.  However, Fraser quickly orchestrated another challenge against Sneedon and subsequently defeated him 37 votes to 27 . In a statement shortly after securing the leadership, Fraser declared that Whitlam would run the full term unless ‘…extraordinary means prevented him from doing so.’  This statement would signal to both the public and to the government that Fraser was determined to hold the government accountable and was prepared to use whatever means necessary to achieve this.

The Loans Affair was the first dramatic event that sparked the Constitutional Crisis, and in retrospect contributed to the perception that the government was incompetent. This attitude was reinforced by the carefree manner in which the loan was obtained. The affair was instigated when the government sought to obtain an overseas loan of $4 billion in September and October 1974 without the support of advice of the Treasury Department. The loan was to be used for natural resources and energy projects.  The loan approval was instead based on the approval of the Executive Council (Department of Treasury 2004, 3). This Council consisted of Cairns, (Treasurer) Murphy, (Attorney General) Connor (Minerals & Energy Minister) and Whitlam, all of whom signed the document to authorise the loan on 13 December 1974. Connor gained authority through this document to liaise with Khemlani, a Pakistani businessman, and met with him on November 11, 1974. The Government allegedly paid Khemlani $US800 million to obtain the loan. The loan was withdrawn on January 7, 1975 after increased speculation over the poor credentials of Khemlani.  Despite this, Connor resumed negotiations with him just a few weeks later without Whitlam’s knowledge.. It is in this period that the incompetence of the government loan dealings began to be revealed.

The fallout of the Loans Affair caused the Whitlam Government severe political damage. In May of 1975, Whitlam inadvertently misled Parliament, not knowing that Connor was still pursuing the deal with Khemlani. As a consequence, Whitlam organised a Special Parliamentary sitting on 9 July 1975 ‘To consider the matter of overseas loan negotiations’. Whilst this provided temporary relief, Khemlani arrived in Australia in October 1975 and stated his version of events to the awaiting media, acknowledging that Connor was still in contact with him. As a consequence, Connor resigned from the Ministry on October 27, 1975. The Loans Affair demonstrated that Whitlam’s communication skills with his Ministers were poor. More importantly, through the affair, Fraser and Kerr gained the perception that the government deliberately used underhand means to achieve its policy objectives. Both Fraser and Kerr would use this perception as justification for their roles within the crisis.

A day later, Fraser used the government’s recklessness during the Loans Affair and the resignation of Connor as justification to defer supply in the Senate. Normally such action is rarely used, and can occur only when the Opposition has a majority in the Senate, in an attempt to force the government to an early election. In 1975, Fraser used three specific reasons when explaining his argument. Firstly, he cited incompetence, evasion, and deceit of the government as a whole. Secondly, he noted the inability for Whitlam to exert control over his Ministers. This directly implicated Connor’s role in the Loans Affair as well as the sacking of Treasurer Cairns over a series of improper incidents. Finally, Fraser pointed to a mismanagement of the economy as basis for his decision. Both inflation and unemployment levels were at record levels when Fraser announced his decision on October 14. The Age editorial agreed with Fraser’s stance when it declared:   
The Whitlam Government has run its course, it must go now…it must go now because it no longer has the degree of public support and acceptance that permits governments to govern effectively.
The next day, the deferment of the Appropriation Bill (1975) (Supply) was carried in the Senate, 29 votes to 28. Fraser later gave a statement concerning his decision: 
…the basic rule of our parliamentary system (is that) governments are made and unmade in the House of Representatives - in the people‘s house. The Senate must not determine who the government shall be.

However, the question remained, how could the government continue without funds? For this reason, the above statement is contradictory. In blocking supply, Fraser was issuing the government with an ultimatum. Whitlam could face political oblivion by going to an election for a second time in three years, or the funds could dry up thereby creating an unprecedented constitutional crisis. He chose the latter. 

Kerr, Whitlam and Fraser all had contradictory views on ways to resolve the crisis, which made it tougher to resolve the deadlock. Whitlam was an ardent supporter of a full term government, and Fraser like most of the media believed that the Government was being irresponsible on the whole and deserved to face another election  However, Whitlam thought Fraser was bluffing throughout the constitutional crisis and could outlast him, though it was clear from the outset that Fraser was just as stubborn and determined as Whitlam. On the first day of the crisis, Fraser gave a press conference and demonstrated his intent.  
I now call upon the Prime Minister if he has a shred of decency left to put an end to the whole sorry episode and place himself and his whole government before the ultimate tribunal of the people.

Contrary to this statement, nothing in the Constitution suggested that if supply was blocked that an election had to be called. The issue was made even more complicated considering the only precedent was during the previous year when Sneedon had blocked supply and Whitlam had called an election. He refused to buckle on this occasion claiming that he had a right to serve his full term. At this point, Kerr entered the heart of the crisis.  According to Kelly, ‘Kerr saw himself as the most important man in the country’. Instead of two politicians fighting for leadership of their country, there were now tripartite forces of ego at work determined to make their mark on Australian history. Defying Whitlam’s request, Kerr began to consult the Chief Justice of New South Wales, Sir Garfield Barwick, to see if there was any way that Kerr could resolve the deadlock from a theoretical point of view. Kerr determined from these meetings that it was his duty to resolve the deadlock as he had lost confidence in Whitlam throughout the crisis  A conversation with Whitlam a week into the crisis revealed that he would indeed carry on without supply. The stage was set for the events of November 11, 1975.

November 11, 1975 was the most dramatic day in Australian political history because of the speed at which the events would unfold and the confusion surrounding them. Early in the morning Whitlam telephoned Kerr to make an appointment for 1pm so he could call a half senate election, having sought approval from the ALP caucus that morning . At 1pm Whitlam arrived at Government House to meet with Sir John Kerr, unaware that Fraser was in the next room, waiting to meet with him. In the meeting, Kerr asked Whitlam if he was prepared to call a general election. Upon finding out that Whitlam was only prepared to call a half senate election, Kerr suspended Whitlam’s commission as Prime Minister of Australia and subsequently dismissed Whitlam from office. Ten minutes later Kerr appointed Fraser as caretaker Prime Minister on the condition that he advised a double dissolution election, and could ensure the safe passage of supply. Whitlam, stunned, went to lunch with none of his senatorial colleagues knowing what had taken place. Hence, the Coalition senators were able to pass the Appropriation Bill (1975) without the ALP knowing what was occurring . Shortly thereafter, Fraser, together with Secretary of Attorney-General Department, Clarrie Harders, met with Kerr to advise that the Appropriation Bills had been passed. At the same time, they both recommended that the Governor General dissolve both Houses. At 3:30 pm, the Governor General's official secretary, David Smith, proclaimed the double dissolution election on the steps of Parliament House. This was followed by Whitlam’s famous quote: ‘Well may we say God Save The Queen because nothing will save the Governor General’. In just two and a half hours, Whitlam had gone from Prime Minister to caretaker Opposition Leader in a unique move that would question the intent and purpose of the Australian Constitution.
There are many arguments supporting Kerr’s actions, largely because he had the Constitution on his side. Supporters of Kerr argue tenaciously that the Governor-General required ministerial advice to dissolve Parliament and to issue writs for an election; advice that Whitlam refused to give. However, a more cohesive argument states that the Constitution’s reserve powers entitled Kerr to act as he did. These reserve powers include the power to appoint a Prime Minister (section 64 of the Constitution); dismiss a Prime Minister and thus a government (section 64); refuse to dissolve the House of Representatives (sections 5, 28); and force dissolution of the House of Representatives (sections 5 and 28). Sir Garfield Barwick, Kerr’s major ally of his decision to dismiss Whitlam, suggests that, “The constitution, which is the constitution of a parliamentary democracy: [is] a democracy [that] must speak through the parliament.’ There are also other sections of the Constitution that support Kerr’s decision. Section 57 of the Constitution states:
If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it… and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously.
Supporters, who agree that there was no other alternative in order to retain supply, refer to Section 83 of the Constitution ‘No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.’ . Barwick in particular, has stated that he was concerned with the constitutional events and not the political events of the dismissal, and thus adheres to a strict following of the Constitution according to the letter of the law. However, you cannot look at one aspect without the other. The constitutional crisis would not have occurred without the political events that preceded them. Crisis in confidence in the government was the central reason that Kerr cited as his reason for dismissing Whitlam. (Kelly 1979, 311)  It is doubtful that this would have occurred if the loans affair had not taken place. It is for this reason that the arguments against Kerr’s actions concentrate on the political aspects of the decision.

The role of the Governor General is a contentious issue, made even more prominent by the events of the dismissal. Heads of state are normally seen to work in conjunction with the Prime Minister. According to Weller, heads of state are required to work in conjunction with the Executive Council as a vital part of the mechanics of Government. This process operates at its smoothest when the Head of Government and Head of State work in a collaborative manner. Instead of behaving in this manner, many of Whitlam’s supporters believe that Kerr was being deliberately obstructionist and refused to consult with Whitlam for fear of being sacked. This argument goes directly against Section 61 of the Constitution that states:
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
In such circumstances the question must be asked whether the Governor General acted in the best interest of the country or the best interest of himself.

The role of the Senate, and its belligerent nature was also a key component of the dismissal and a chief point of contention amongst Whitlam’s supporters. In refusing to confirm supply, supporters of Whitlam argue the Senate deliberately disrupted the democratic processes of the Australian Government as well as the Constitution. Thus, the Senate openly defied the government in order to obtain a bigger share of power. This in turn led to the Constitutional Crisis, and the ultimate fall of the Whitlam government.  In 1975, Section 57 triggered the dissolution of both Houses simultaneously. As a result there was no constitutional way of resolving the deadlock at all.  Great strain was placed on the institutions of parliament, including the position of Governor-General, and on the ability to follow the procedures of constitutional government . This is because there is no absolute certainty regarding the role of the Senate and how powerful it actually is. Despite a referendum in 1977, there has been no substantial change to the Constitution This means that such a crisis could occur again leaving the Senate with the power to bring down a Government, just as it did in 1975.

Other critics of Kerr’s actions focus upon the deception of Whitlam, and the personal aspects of the dismissal, rather than its constitutional aspects. Whitlam argues that his government could have carried on with supply until November 30, nearly three weeks after the dismissal and ignored the obligations of the House of Representatives. This is by far his strongest argument, as the remainder detail personal rather than political conflict with Kerr. In a social manner this is poor but does not resonate politically. After all, politicians break promises on a regular basis in order to serve their own interests. Whitlam also argues steadfastly that the Governor General only acts on the advice of the Prime Minister. This may be the case, however as stated above, Kerr had the power to dismiss Whitlam as part of the Constitution’s reserve powers. Nevertheless, Melbourne University professor Geoffrey Sayer believes that the public elected Whitlam and his Government twice in less than three years and that Kerr acted without precedent. Sayer states that:
Refusal of Supply was not itself a conventional reason for such action…Kerr should have at least waited until the opposition’s attitude both officially and unofficially was established…A Governor General more bent on conciliation would have been better assisted by the definite outcome of a Half Senate election… he could not be certain that the Commonwealth’s legal obligations would be satisfied by the actions he took nor that serious litigation would occur unless he acted then.
Kerr, in other words, acted upon his own authoriy rather than what best suited the public interest. However, it is fair to say that this argument is mainly based upon speculation. In dismissing the Whitlam Government, Kerr believed he was truly performing the correct act constitutionally. Therefore, politically and constitutionally, the arguments side with Kerr.

The dismissal of the Whitlam Government in 1975 was more than just a political and constitutional crisis; it was a political catastrophe.  Its Caucus had a lack of experience and economic credentials. The 1974 election, the Liberal Party leadership change that elected Malcolm Fraser, and the Loans Affair all contributed to the impending constitutional crisis. This culminated in the events of November 11, 1975. The arguments for and against the dismissal of the Whitlam government conclude that while Kerr’s actions were legally acceptable according the letter of the law, the actions leading up to the decision were not. The obstructionist Senate put Kerr in a position he should not have been in. Concurrently, Kerr openly deceived Whitlam in direct defiance of the Head of State’s duties. This is not only a breach of personal ethics, but is also highly dubious in a political sense. In summation, Kerr was justified from a legal standpoint, but from a political standpoint his motives were highly questionable.

1 comment:

  1. Thank you for this excellent account and thoughtful examination of this terrible time. It has bought back many memories for me.
    My first voting experience was in the election which preceded the dismissal and I was, and remain still, heartbroken and thoroughly disgusted by it all. Even though Gough seemed to have great difficulty controlling his cabinet he really did have a shining vision and a conviction that Australia could be truly great on its own terms and not simply trail after the US. He really did try to put it all in place and make it happen.
    I remember too how obstructive the opposition at the time was. It was indeed a chaotic time and I was young and idealistic.
    I will ALWAYS believe that it should NEVER be possible for a non-elected public official to dismiss a democratically elected government under any circumstances.
    The shock of the announcement is burned into my memory - no warning, no-one knew, no-one ever dreamed it would happen except a select and elite few plotting the execution behind closed doors and in secret. It was a betrayal worthy of a Shakespearean tragedy.
    Most vividly of all - I remember 11/11/75 as the day Australia lost its soul. We have been hurtling down this spiral to political and social emptiness ever since. Modern Australian governments, no matter which flavour they align themselves to, are increasingly cynical, vision-less and power-mongers showing no true belief in anything other than themselves and 'the game'.
    The dismissal of the Whitlam government was the beginning of the descent into nothingness for Australian democracy and I am not sure when we will hit the bottom and bounce back - I hope we do.