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Deliberating the Dismissal

Panel Presentation by Professor the Hon Gareth Evans AC QC, Chancellor of The Australian National University, at ANU College of Law Public Law Weekend, Constitutional Deliberations, Canberra, 1 October 2015

The events of 11 November 1975 are indelibly etched in the consciousness of my political generation. It was one of those handful of situations, like the Kennedy assassination and 9/11, where one remembers exactly what one was doing when the news broke. In my case, aptly enough, I was attending a Futurology conference at the Southern Cross Hotel in Melbourne where someone had just begun painting a scenario of “Australia as an authoritarian society”! “Stop the presses”, we said: “it’s just arrived.” And rushed down to the City Square with megaphones – to start building the barricades for the revolution which never quite took off.

It’s hard to recapture forty years later the intensity of the emotion the Dismissal generated, no doubt at least partly because our worst fears, about the recurring destruction of  properly elected democratic governments, have not eventuated (in recent years they’ve gone in more for self-destruction…).  But I have to say that my rage at the time – not just as an ALP loyalist and, indeed, preselected Labor Senate candidate, but as a constitutional lawyer – was incandesecent. And my disgust at the breach of constitutional conventions involved, and my fear that it could all happen again if we are not very careful indeed, remains largely undiminished. 

Given that this is a conference on the theme of “Constitutional Deliberation,” it needs to be recalled that, however much agonised discussion took place after the event, before the event there was effectively zero public debate. There had been plenty of discussion beforehand about the legitimacy, and even legality, of the Senate blocking Supply; and plenty of discussion about the courses open to Whitlam should the stand-off over the passage of the Budget bills have continued – viz.  calling a half-Senate election (which was Whitlam’s eventual preferred position); calling a House of Representative election (which the Opposition was demanding, although the Government was not much more than a year into its second term); or calling a double dissolution (which, even though the conditions of bill non-passage in the Senate  were satisfied, the Government, with its political fortunes at a low ebb, did not want at that stage any more than a Lower House election); or indeed just staying put, letting the money run out – with public servants and pensioners and suppliers of goods and services to the government not being paid – and letting the Senate, hopefully, bear the fury this would unleash and be forced to retreat.

But as to the prospect of the Governor-General acting in defiance of all hitherto received wisdom about the applicable constitutional conventions –   exercising his formal power not only to ignore the advice of a Prime Minister still manifestly enjoying  the confidence of the Lower House, but to dismiss him, then installing as Prime Minister an Opposition Leader  manifestly not  enjoying the confidence of the House, accepting his advice for an immediate election, and allowing him to contest that election with all the advantages of incumbency–  I cannot remember there being a word of public discussion.

Least of all was there any floating of the dismissal option from those in the Opposition leadership, who were secretly plotting this course with the Governor General Sir John Kerr, or from those High Court members who, from behind the screen, were actively, and shamefully, advising Kerr: the Chief Justice Sir Garfield Barwick, whose role has been known for years; Sir Anthony Mason, whose central  hand-holding role over several weeks  was revealed only in 2012; and perhaps even, on some accounts, the hugely admired (including by me) Sir Ninian Stephen.  The only deliberation that occurred was behind very closed doors. It was a classic ambush, producing paralysis in the Whitlam Government leadership when it happened, because no one who mattered believed that it could or would possibly happen.

Had there been serious public discussion of the dismissal option it is almost impossible to believe that it would have been pursued. Maybe because, as Sir John Kerr feared, his own dismissal would have been accomplished by Prime Minister Whitlam so advising the Queen, who would certainly have felt obliged to accept his advice. But more likely simply because the public reaction would have made this course unconscionable, even though the Government was deeply unpopular at the time. The fact that Labor was in fact roundly defeated a month later does not, I think, prove that the dismissal was seen as constitutionally acceptable: the caravan always moves on politically, and once the election was called it was inevitably going to be determined by economic and other political issues, not judgements about constitutional nicety.

Had there been a public debate, the enormity of the dismissal course being proposed – with the whole succession of breaches of hitherto thought well-established conventions it entailed – would certainly have weighed heavily on a number of Government senators, whom we now know were in fact already wavering in their commitment to the supply blocking path and would not in fact have held out much longer.  The arguments advanced after the event to justify the Governor General’s actions by new Prime Minister Fraser, his Attorney General Robert Ellicott, Chief Justice Barwick and Kerr himself – that the political deadlock over supply  between the two Houses could only be resolved by a Lower House election or double dissolution, and that bringing this about justified the full use of the Governor General’s literal powers under the Constitution, however many breaches of understood conventions this would involve – were inherently unpersuasive, and it is difficult to imagine them prevailing at the time, even with there being as much press and public dissatisfaction as there was with the Labor Government.

In the years since 1975 there has of course been a great deal of deliberation – including in the course of successive meetings of the Australian Constitutional Conventions initiated  by Whitlam  up to 1985, and by John Howard  in 1998 –  about how to avoid in future any possibility of the Dismissal recurring, but none of the various mechanisms proposed have achieved any traction. They include tackling the problem head on, by seeking to remove the power of the Senate to block Supply, bringing it into line with most upper houses elsewhere in the world; to remove outright the power of a Governor-General to remove a Prime Minister still commanding a majority in the House of Representatives; or to in some other way limit the Governor-General’s reserve powers and/or codify the conventions as to how they are to be exercised.

Bearing in mind the obvious difficulty of winning bipartisan support for these very direct measures, my own preferred position, as Attorney-General in the Hawke Government in 1983-84, was to approach the issue indirectly by embracing a system of Fixed Term Parliaments – a proposal for which I won Senate support while sitting in Opposition in 1982, and actually introduced as a Government constitutional amendment bill in 1983, but had to later withdraw when Prime Minister Hawke and my Cabinet colleagues decided they would rather retain the right to call elections at any time of their political choosing.

There are in fact two basic rationales for fixed term parliaments of the kind that are now almost the norm in Westminster systems. The first is that, particularly if for four-year terms, they would create the conditions for better quality, less manically perpetual-campaign-oriented government than we have under the present flexible three-year term system. I remain of the – no doubt naïve – view that they would be good for government, but it is always going to be hard to persuade the government of the day that it would not be giving up a tactical advantage.

It’s the second rationale for Fixed Term Parliaments – 1975-avoidance – that remains relevant in the present context. The system would involve elections for the House of Representatives being held on a constitutionally fixed date – say the third Saturday in November every three years (or four, as the case may be), with only two qualifications: an early House election could be held if the government loses a no-confidence vote and no alternative can be formed, and a double dissolution could continue to be held in the event of a prolonged House-Senate deadlock. But in either case the incoming government would only serve out the term of its predecessor, ensuring that the basic cycle is quickly restored.  The beauty of all this in the present context is that premature elections would either be prohibited outright, or in the case of a double dissolution result in most cases in a very short term government, which would make the blocking of supply in most circumstances pointless and politically counterproductive.

In the present political and constitutional context it has to be said that a lot of interest, and heat, has gone out of these discussions. For a variety of reasons, most people seem to think that any repeat of the 1975 Dismissal is highly unlikely in practice. In the first place, successive Governors-General have had the awful warning of the fate of Sir John Kerr –a figure of derision, and hounded into exile, albeit as much for his spectacular personal failings as for his misuse of gubernatorial power.   In the second place, even conservative politicians seem to have come to appreciate that there are immense downside electoral risks in being seen to get an unelected Queen’s representative to do their dirty political work for them.  And third, ever since the Australian Democrats declared in the mid-80s, followed by their Green successors since, that they would not use their pivotally placed numbers to block supply under any circumstances, a potential 1975 deadlock situation has not in fact arisen.

All that said, we should not assume that 1975 simply cannot happen again. On the political side, dynamics in the Senate, and in Senate-House relations, and within the conservative parties, are fluid and constantly changing. One should not assume that the particular combination of personalities and issues that led to the supply deadlock in 1975 could never be repeated. One should never underestimate the continuing force of the sentiment uttered in the mid-1970s by then Deputy Prime Minister Doug Anthony: “In politics if you see a head, you kick it.”

On the gubernatorial discretion side, it is not to be assumed that the Governor-General will forever be an unelected Queen’s representative, with all the limited credibility or moral authority inherent in someone of that status to act against the advice of an elected Prime Minister.  It now seems quite likely in the next decade or so that the campaign for an Australian Republic will prevail – as I profoundly hope it will.  But it also seems quite likely that, if we do become a republic, the model that will prevail for the determination of the Australian head of state will be direct popular election, rather than indirect appointment by a majority of Parliamentarians or some similar mechanism.

And therein will lie potential problems if any kind of 1975 situation should resurface in the Parliament: a directly-elected Governor-General or President, armed with all the literal powers presently available in the Constitution, is not likely to feel quite as inhibited in using those powers as one who does not enjoy that degree of political and moral authority. Maybe that’s a risk worth taking to achieve an Australian republic, but it will provide fertile ground for constitutional deliberation for a long time yet to come.