Australian constitutional crisis of 1975
The Australian constitutional crisis of 1975 is generally regarded as the most significant domestic political and constitutional crisis in Australia's history.
The crisis began when the upper house of the Australian Federal Parliament, the Senate, in which the opposition Liberal-Country Party coalition had a majority, deferred voting on a bill that appropriated funds for government expenditure, conditional on the Prime Minister dissolving the House of Representatives and calling an election. Such action was unprecedented in Australian Federal politics, and has not been attempted since. The government, led by Labor's Gough Whitlam, ignored such calls, and attempted to pressure Liberal senators to support the bill while also exploring alternative means to fund government expenditure.
The impasse continued for some weeks, during which the threat of the government being unable to meet its financial obligations hung over the country. The crisis was resolved on 11 November 1975 when the Governor-General, Sir John Kerr, dismissed the Labor Prime Minister Whitlam and his government, and appointed his Liberal opponent Malcolm Fraser as caretaker Prime Minister. Kerr did so having secured an undertaking from Fraser that he would seek a dissolution of both Lower House and Senate, thus precipitating a general election.
While quite popular in its first term for pulling troops out of Vietnam and for several social reforms including the creation of the Medibank universal health care system, the Whitlam government's second term -- which began after the election of May 18, 1974 -- had been plagued by several financial scandals. In this context, two non-Labor State Premiers, when faced with casual vacancies for their states in the Federal Senate (caused by the resignation of one sitting Senator and the sudden death of another), filled those vacancies with senators who did not strongly support the Labor government. One of these replacement Senators, Albert Patrick Field from Queensland, was nominally a Labor Party member but had been openly critical of the Whitlam government and was seen as being beholden to the wishes of the strongly anti-Labor Queensland government. The other replacement senator, Cleaver Bunton from New South Wales, was fully independent, being a member of no party at all. These actions by Premiers Joh Bjelke-Petersen (Queensland) and Tom Lewis (New South Wales) went against a strong convention (which has since become enshrined in the constitution) under which a senator who dies or resigns mid-term is replaced with a person nominated by the former senator's political party. At the time of the crisis, Senator Field was not able to attend the Senate as his appointment was under challenge in the High Court. The number of nominally Labor Senators was thereby reduced, but the Liberal-Country opposition would not provide a "pair" (an informal but well-established tradition whereby whenever a sitting member or Senator is through circumstances outside their control unable to attend and vote, the opposite party reduces its own numbers accordingly by having one of their own members abstain from the vote.)
Quoting financial mismanagement as a pretext, the Opposition refused to vote on the passage of the government's budget through the Upper House, under the assumption that the government was obliged to resign and call an election. While in most constitutional democracies, the power to block supply is exercisable only by the popularly elected lower house, Australia's constitution does not specifically deny the Senate this power (although it is not allowed to originate bills dealing with expenditure, it can still technically reject, defer or amend them). The Constitution was drafted through the 1890s and enacted in 1901, thus pre-dating Britain's Parliament Act, 1911, which enshrined this principle of the supremacy of the lower house in the British constitution.
Disputes of authority between the upper and lower houses in Westminster system parliaments are not unheard of. The convention of lower house superiority can occasionally be challenged by an upper house in exceptional circumstances, such as when, in Britain, the House of Lords broke its convention by blocking Lloyd George's budget on the basis that he as Chancellor of the Exchequer was breaking his part of the convention by proposing a massive and fundamental change in the taxation system, so massive the House of Lords claimed it had the right to break its part of the convention by blocking the budget. In Australia too, similar arguments raged. Allegations were made that Whitlam had openly flouted conventions. His slipshod approach to decision-taking (for example, having decisions taken at informal meetings of his cabinet, rather than at formal meetings of the Executive Council, under the chairmanship of the Governor-General) had already enraged Governor-General Sir John Kerr, a former judge. Whitlam's apparent flexibility with traditional rules and regulations was used as the excuse for the Senate to break its own conventions.
In a risky move, Kerr also met with the Opposition leader, Malcolm Fraser, behind the back of the Prime Minister. Allegedly, Mr Fraser argued that the Senate represented the displeasure of the Australian people with the government's management; that there was a practical impasse for the government; and that if the Governor-General did not act decisively then the Prime Minister could without notice dismiss the Governor-General and maintain the deadlock indefinitely.
Faced with a prime minister who was neither resigning nor seeking a dissolution, even after failing to obtain supply, on November 11, 1975, the Governor-General of Australia dismissed Prime Minister Whitlam and appointed the Opposition Leader, Malcolm Fraser, as the caretaker Prime Minister, on the basis that Fraser had promised to pass supply, then immediately advise the Governor-General to dissolve parliament and call a general election. Fraser did so, and the Governor-General called a general election on December 13, 1975. The Liberal and National Country Party Senators were advised of the situation and they duly voted to pass the Supply Bill, along with the Labor Senators. However the Labor Senators were not yet aware that their leader Gough Whitlam and his entire government had been dismissed (because Whitlam had omitted to tell them) - the Labor senators did not know until after the vote that the supply they had just agreed to was supply not for the Whitlam Government, but for the Fraser Government. In any case it would have been useless for the Labor Senators to vote against supply - all through October and November two independents - Lewis's appointment Cleaver Bunton and Steele Hall, a former Liberal Party but now independent Senator from South Australia, had supported the Labor Party - the motions for deferring the Budget bills were passed by 30-29 - an outcome which would have been 31-27 in favour of passing the Budget bills had the Labor Senators tried to reject them on November 11th. Kerr ignored two immediate motions of no confidence in Fraser from the House of Representatives.
Shortsightedly, the ALP focused its campaign entirely on the illegitimacy of the dismissal, while the Coalition focused on Labor's economic management shortcomings. Although some people expected a major backlash against Fraser in favour of Whitlam (who had launched his campaign by calling upon his supporters to 'maintain the rage'), the ALP instead suffered its greatest loss (losing 7.4% of its previous vote at the 1974 election) against Fraser's Coalition. This was seen as a popular endorsement of Kerr's actions, although Kerr himself soon became a much reviled figure.
Though it is debatable whether the ALP's 1974 - 1975 management was sufficient justification for the opposition to break with tradition in blocking supply, it does provide a practical case study for comparison of convention based systems (or even partly convention, partly written constitution-based systems) with more rigid systems such as that used in the United States of America where the 2000 election was largely dependent upon technicality rather than any popular or practical issues.
The crisis is significant in analyzing Westminster systems for the large number of conventions that were broken. Unlike the United States, where legislative-executive relations are spelled out in the constitution, these matters are not explicitly stated in the Australian Constitution or any other legislation. Under normal circumstances, behaviour is determined by convention and custom. In the United Kingdom constitution the issue of the power of the Upper House to block supply was encountered, and the power removed from the House of Lords, in the course of the constitutional crisis of 1909 - 1911 (see Parliament Act). But this was all achieved by first going to the country in a general election to get a mandate to change the system. This fact is claimed by some adherents of the Australian Liberal Party to legitimise its position in the crisis: the argument being that an elected Australian Senate implicitly inherited the powers and licence of the British House of Lords as of 1901 (the date of foundation of the Commonwealth of Australia) and by some Labor supporters to condemn it: by arguing that the existence of a power to block supply was an oversight since corrected. The Australian crisis illustrates how unwritten conventions can be overridden during a crisis and forms an argument for their codification (though one that is not accepted by many prominent Australian constitutional scholars).
It is notable that although the crisis was described as Australia's most dramatic political event since Federation in 1901, it caused no disruption in the services of government; it saw the parties remaining committed to the political and constitutional process by contesting the subsequent election and accepting the result. But it did lead to a constitutional change, passed by referendum in 1977, to require that State Premiers and Parliaments fill Senate vacancies with the nominee of the Party of the original holder of the seat.
In the years afterwards, some Australian republicans have used the crisis as an argument for change, on the basis that Australia's current constitution is flawed over (a) the upper house and supply and (b) the lack of security of tenure of the de facto head of state in dealing with a crisis. Attempts to resolve the incongruity by constitutionally prohibiting the Senate the power to block supply have failed when put to referendum.
Fraser and Whitlam have not kept up any enmity and are reconciled to the point where they have, on occasion, spoken jointly on political issues such as the referendum of 1999 as to whether Australia should become a republic. It is noteworthy that the convention responsible for deciding on the Constitutional Amendments to be included in the referendum of 1988 rejected an amendment stripping the Senate of the power to block supply. In recent years the balance of power in the Australian Senate has been held by the Australian Democrats thus reducing the controversy associated with this issue.
Journalist Paul Kelly has produced a series of books generally regarded as forming the most comprehensive account of the crisis. His most recent is entitled November 1975. Kelly's conclusions on whose actions were ultimately responsible is interesting: while he criticises both Fraser and Whitlam heavily, and points out the flaws in the Australian constitutional system that made it possible, he ultimately sheets the majority of the blame on Kerr for doing little to encourage a negotiated solution to the crisis.
A dramatised version of events exists in the form of a television mini series, The Dismissal, screened in 1983. Amongst those with directing credits are George Miller and Phillip Noyce, and cinematography was by Dean Semler.Background
The Dismissal
As Governor-General, Kerr was left in a constitutional minefield. Opinions as to what Kerr should do were manifold. Some claimed that constitutionally, he had every right to expect a prime minister who had been unable to obtain supply to either resign or seek a parliamentary dissolution. Whitlam, however, vigorously maintained that the Senate's obstruction was unconstitutional, as the Prime Minister need only rely on the lower house for support. In television interviews Whitlam expressed the view that it would be inappropriate for the Governor-General to take action except on the Prime Minister's advice, unaware that this annoyed Kerr, who viewed it as an attempt to interfere with his position. The situation was complicated by the fact that because the measure was still on the floor of the Senate, supply could not be said to have been denied, rather the vote was being constantly postponed. Some have held the view that Kerr was obliged to warn the Prime Minister before taking action against him (this precedent had been established in New South Wales during the reign of Premier Jack Lang). This Kerr was unwilling to do, since, in theory, Whitlam could simply advise the Queen of Australia to dismiss the Governor-General. It would have been an exceptionally foolish act from Whitlam, but it, like the Senate's unprecedented action, was constitutionally possible. Kerr was also no politician. Feeling himself to be in an insecure position, Kerr was simultaneously resentful of Whitlam for seemingly taking his office for granted, and fearful of threats from Fraser that the Opposition would begin publicly criticising Kerr unless he "did his duty". This promoted Kerr to seek advice from the Chief Justice of the High Court of Australia, Sir Garfield Barwick. This action was criticised by some, since the High Court does not issue advisory opinions, so Barwick was not necessarily speaking with constitutional authority, and Barwick was in fact a former Liberal Party Attorney-General. Whitlam claimed that he specifically instructed Kerr not to seek Barwick's advice, but Kerr maintained that he did what was necessary to resolve the crisis.