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"Each individual should allow reason to guide his conduct, or like an animal, he will need to be led by a leash."
Diogenes of Sinope


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Thousand Flowers tapestry (15th Century) - Beaune, France (detail)

Monday, December 01, 2008

Australia's 1975 constitutional crisis

It looks like Canada may be in the midst of a constitutional crisis whereby the role of the Governor-General is suddenly and unusually in the spotlight. Canadian pundits often cite the so-called "King-Byng affair" as a precedent in situations like this, but Australia's parliamentary government went through a similar crisis in 1975. Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam and appointed the Leader of the Opposition Malcolm Fraser as "caretaker Prime Minister" on the assumption that Fraser would ask for a dissolution of Parliament and advise Kerr to call an election. The incident cast light on some unwritten and often vague conventions in the Westminster parliamentary tradition, specifically the defacto supremacy of the lower house of Parliament and the ability of the Governor-General to act independently of the advice of the Prime Minister. Wikipedia has a good outline of the crisis here. Some excerpts:
Constitutional precedent had long established that the Governor-General was expected to take no action except upon 'advice' (de facto direction) received from the Prime Minister, and Whitlam confidently assumed this would be the case during the crisis. However, according to the Australian Constitution, and in accordance with established practice in other Westminster style constitutional monarchies, the Governor-General still possessed wide ranging reserve powers to dissolve parliament and sack the government on his own initiative, in certain limited circumstances. These reserve powers had not been carried out by any monarch since King William IV in 1834, and it was a matter of academic and legal debate as to whether they still existed in reality.

It would later become apparent that Kerr and Whitlam were at odds over whether the Governor-General had the power to act independently of the Prime Minister in times of crisis.

On 30 October, Kerr proposed a compromise solution to Whitlam and Fraser, in which Fraser would let the budget pass in return for Whitlam abandoning plans to call an early Senate election, but Fraser rejected this. On 2 November Fraser offered to pass the budget if Whitlam would agree to call an election before the middle of 1976, but Whitlam in turn rejected this, citing the constitutional convention that only he, as Prime Minister, could advise the Governor-General to call an election. There is considerable evidence that Kerr had discussions with Fraser independently, against Whitlam's advice. When Whitlam rejected Fraser's proposal, it seems, Kerr decided that Whitlam was the one unwilling to bend.

By November, Fraser and the Opposition began to ramp up pressure on Kerr to take action against Whitlam, threatening to criticise him publicly if he did not do so. Around this time, Fraser and Liberal MPs began calling for Kerr to use his reserve power to dismiss Whitlam, claiming that this was the only constitutional option if a Prime Minister who loses supply does not call an election or resign.

...

On the morning of 11 November, Whitlam arranged to see the Governor-General at Yarralumla. The Prime Minister arrived without the knowledge that Fraser had also been summoned but had arrived earlier. Whitlam also carried with him a letter requesting official approval for a half-Senate election in order to break the deadlock.

However, just as Whitlam was formally tendering his advice that Kerr request the State Governors to issue writs for a half-Senate election, Kerr cut him off and asked him if he intended to advise a House election as well. When Whitlam said no, Kerr stated that there was no prospect of the crisis being resolved otherwise. He then informed Whitlam that he was terminating his commission as Prime Minister and handed him a pre-written letter to that effect--thus preempting any plans Whitlam might have had to advise the Queen to dismiss Kerr.

A few minutes later, Kerr summoned Fraser. At this point, Kerr asked Fraser whether, if commissioned as Prime Minister, he would 1) pass the budget; 2) advise a double dissolution election (in which both the House and Senate would be up for election) and 3) enact no new policies, make no appointments and initiate no inquiries into Whitlam's government pending the election. When Fraser answered "yes" to all questions, Kerr commissioned him as the caretaker Prime Minister of Australia. Years later, Fraser claimed that Kerr had asked him the same questions earlier in the day over the phone, something which Kerr adamantly denied in his memoirs.

Fraser then instructed his Senators to pass the budget and advised Kerr to call a double dissolution election for 13 December. The Liberal and National Country Party Senators voted to pass the Supply bills, along with the Labor Senators. However, the Labor Senators were largely not yet aware that Whitlam and his government had been dismissed (because Whitlam, plotting to defeat Fraser on the floor of the House of Representatives, had omitted to tell them). In any case it would have been useless for the Labor Senators to vote against supply. Fraser advised the House that he had been appointed Prime Minister. The House passed a motion of no confidence in Fraser, who had left the House shortly after his announcement and did not participate in the debate. The Speaker, Gordon Scholes, suspended the session in order for him to call on Kerr to advise him that Fraser did not have the confidence of the House, and to request him to withdraw Fraser's commission and invite Whitlam to form a new government. By the time Kerr received Scholes at 4:45 p.m., however, Kerr had already given Royal Assent to the Supply bills and dissolved Parliament on Fraser's advice, so the no confidence motion was rendered null and void.

Amongst general din and shouts from hecklers amongst the crowd that had quickly gathered as the news had spread, the Official Secretary to the Governor-General, David Smith read out the proclamation of the dissolution of Parliament from the steps of Parliament House. The proclamation ended with the words "God Save the Queen". Whitlam then addressed the assembled press and onlookers:

Well may we say "God save the Queen" because nothing will save the Governor-General. The proclamation you have just heard read by the Governor-General's Official Secretary was countersigned "Malcolm Fraser", who will undoubtedly go down in Australian history from Remembrance Day 1975 as Kerr's Cur.

1 comment:

Blazing Cat Fur said...

We can hope Madame Jean acts.