Never say never to a new constitutional crisis

Published in The Australian, 7 November 2025

The dismissal was one of those handful of situations, like John F. Kennedy’s assassination in 1963, and 9/11 in 2001, where those of us alive at the time remember exactly what we were doing when the news broke.

In my case, aptly enough, on 11 November 1975 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 five decades 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 Australian governments have gone in more for self-destruction. But my rage at the time – not just as an ALP loyalist, but as a constitutional lawyer – was incandescent. 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.

In the years immediately following 1975 I did my best to translate that disgust into effective political action. I published articles, books. I convened a major academic conference in 1977 bringing together the major actors on both sides, including Gough Whitlam and Bob Ellicott, the Wentworth MP and former solicitor-general who provided legal advice to governor-general Sir John Kerr in favour of dismissal; and brought hundreds of activists together later that year at the National Conference for a Democratic Constitution, in an attempted recreation in Melbourne’s Exhibition Building of the atmosphere of the opening of the first Australian Parliament in 1901. I initiated a new grassroots organisation, the Campaign for Constitutional Change, and became a vocal advocate for various constitutional changes aimed directly at avoiding in future any possibility of dismissal recurring.

But when it came to removing the power of the Senate to block supply, bringing it into line with most upper houses elsewhere in the world; or removing outright the power of a governor-general to remove a prime minister still commanding a majority in the House of Representatives; or codifying the conventions as to how the Governor-General’s reserve powers are to be exercised – all, then and now, consummations devoutly to be wished – it soon enough became apparent, however, that there was just no support remotely strong enough to carry a nationwide constitutional referendum.

So when I became attorney-general in 1983 I decided to approach the issue indirectly by embracing a system of fixed term parliaments. These have come to be almost the norm in Westminster systems around the world, including now in most Australian states and the territories. Their obvious general attraction, particularly if four years in duration, is that 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 at the national level.

And if the object is to avoid recurrence of 1975, their beauty 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.

But our promised referendum was never held. The hard-heads of the New South Wales ALP Right – never my strongest allies on governance and civil liberties issues – persuaded prime minister Bob Hawke that, however good fixed terms might look from the opposition benches, it was not smart in government to give away the right to call elections at a time of one’s own political choosing.

It is not obvious to me that, in subsequent years, this flexibility has in fact worked to the advantage of either side of politics when in government. But to this day, when it comes to getting both sides to agree at the same time to a change which almost everyone, privately, believes would be good for the country, the politics remain intractable.

As time has gone on, most of the heat has gone out of the dismissal issue, with a widespread belief that any repeat of 1975 is highly unlikely in practice. Successive governors-general have had the awful warning of the fate of Kerr –a figure of derision, and hounded into exile, albeit as much for his spectacular personal failings as for his misuse of gubernatorial power. (When one of Peter Walsh’s staffers put a large round red sticker on the nose of the great man’s portrait in King’s Hall in the Old Parliament House, no one in authority, as I remember it, seemed in any great hurry to remove it, let alone find and punish the offender.)

Again, even conservative politicians seem now to appreciate that there are immense downside electoral risks in being seen to get an unelected queen’s or king’s representative to do their dirty political work for them. And ever since the Australian Democrats declared in the mid-1980s, followed by their Green successors, 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 of Representatives relations, and within the conservative parties, are fluid and constantly changing. It should not be assumed 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 question of whether the head of state’s discretion will ever again be exercised as it was in 1975, it is not to be assumed that the governor-general will forever be an unelected queen’s or king’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. Though sentiment on the issue waxes and wanes, it is reasonable to assume that the campaign for an Australian republic will eventually prevail – as I profoundly hope it will and, being the eternal optimist I am, firmly believe it will.

But, given the disaster of the republican vote splitting as it did in the 1999, there is bound to be huge pressure next time round for republican forces to unite around a single model for the determination of the Australian head of state. And the model likely to prevail, because it is both easier to explain and more emotionally gratifying, will be that of direct popular election, rather than indirect appointment by a majority of parliamentarians or some similar mechanism.

Therein will lie a real potential problem 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 is 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.

Gareth Evans represented the Labor Party in the Senate and House of Representatives from 1978 to 1999, serving as a cabinet minister in the Hawke and Keating Governments from 1983 to 1996 as attorney-general, minister for resources and energy, minister for transport and communications, and most prominently, from 1988 to 1996, as minister for foreign affairs.

This article was first published in The Australian on 7 November 2025