Visions and values of Australia's Governors-General

On Saturday 23 February the Australian National University hosted a seminar entitled "Visions and Values of Australia's Governors-General". The seminar was opened by the University's chancellor, Professor the Honourable Gareth Evans.

In inviting the chancellor to give the opening address, no doubt the seminar organisers had hoped for a scholarly contribution to the proceedings from a distinguished professor. Instead, what they got was a polemical diatribe from a former politician who had sat in both the House of Representatives and the Senate, and who had held ministerial appointments in the Hawke and Keating governments. You can take the man out of politics but you can't take politics out of the man.

Professor Evans, in typical lawyer fashion, bemoaned the fact that the Australian Constitution makes no mention of the office of Prime Minister or the institution of Cabinet. Oh dear! But that hasn't stopped us from having them.

The office of Governor-General has been described as "the highest single expression in the Australian governmental structure of the idea that Australians of all parties and all walks of life belong to the same nation". Professor Evans attributes the words to Sir Zelman Cowen, but in fact they came from Sir Paul Hasluck. Be that as it may, Professor Evans notes that "neither this actual language, nor anything remotely like it, appears in our 1900 founding document". To which I can only add "nor should it".

Professor Evans noted that Sir William McKell, Lord Casey, Sir Paul Hasluck and Mr. Bill Hayden had been excellent Governors-General, "two from each side of the aisle", and he thought it

fair to say that notwithstanding their long histories of engagement … in party political warfare, each of them made the transition to the role of Governor-General – which should of course be seen to be non-partisan and to symbolize the unity of the country – with dignity, competence and effectiveness.

No argument from me with any of that.

However, when Professor Evans got to Sir John Kerr he allowed his selective memory and his political amnesia to take over, and here I part company with him. He described Sir John's tenure as "catastrophic", but I doubt that the vast majority of the Australian people who so decisively and comprehensively rejected Gough Whitlam and his Government in landslide defeats at the 1975 and 1977 national elections would agree with him. According to Professor Evans,

Sir John's dismissal of the Whitlam Government in November 1975, and commissioning the Leader of the Opposition Malcolm Fraser to lead the country to an immediate election, in circumstances where the crisis caused by the Senate's blocking of supply had far from run its course, and in complete defiance of all hitherto accepted understandings of the constitutional conventions concerning acceptance of the advice of the serving government, generated bitter political divisions in the country which, on this subject, have barely healed to this day.

(Emphasis added – I shall return to these words later.)

Professor Evans's next words to the seminar participants were:

I have written and edited books on all this in my previous incarnation as a constitutional lawyer and am afraid that my views on Kerr's values, vision and understanding of the office have not mellowed – either as a Labor politician, with all the emotional baggage that might be thought to go with that, or as a lawyer being as intellectually objective as I can be.

Well, let me assure Professor Evans that there are aspects relating to the blocking of supply by the Senate that he has not written about; that his emotional baggage as a Labor politician will have prevented him from writing about them; and that his intellectual objectivity has been severely compromised as a consequence.

I begin with Professor Evans's complaint that Sir John's intervention came when "the Senate's blocking of supply had far from run its course". Indeed it had, but the decision to bring matters to a head on 11 November 1975 was not made by the Governor-General but by Prime Minister Gough Whitlam. That was the day when Whitlam attempted to give the Governor-General the stupidest piece of advice imaginable. That was the day when Whitlam intended to advise the Governor-General to order a half Senate election to be held on 13 December. One can hardly imagine that Whitlam could have believed that the election of Senators who would not have taken their seats in the Senate until 1 July 1976 – six and a half month later – would have solved the nation's immediate financial and economic crisis caused by the Government having already started to run out of money.

There was also another factor that Whitlam had failed to take into consideration. While it is the Governor-General who names federal election dates on the advice of the Prime Minister, it is the State Governors who issue the writs for the holding of elections of State Senators, on the advice of their respective State Premiers. And four of the six State Premiers had already announced that they would refuse to give that advice.

An astute Prime Minister would have realised that a half Senate election was simply not possible, and that even if one had been held, it would not have solved the supply crisis. If Whitlam had needed more time to negotiate a solution he could have had it, but he chose instead to give the wrong advice at the wrong time. It was Whitlam, not Kerr, who stopped the supply crisis from running its course. Whitlam was hoist with his own petard.

If Professor Evans is on shaky ground over just who stopped the supply crisis from running its course, he is in worse trouble when we come to look at just who defied hitherto accepted understandings of constitutional conventions, for it certainly wasn't the Governor-General or Leader of the Opposition Malcolm Fraser.

Throughout the supply crisis the Whitlam Government's attack was on the Senate's refusal to pass the Labor Government's budget. Whitlam's view then was that the Constitution and its associated conventions vested control over the supply of money to the government in the House of Representatives, and that the actions of the Senate in blocking that supply of money were a gross violation of its role in the Parliament. This is not true. Control over the supply of money to the government is vested in the Parliament, and that includes the Senate.

To put this matter beyond doubt, on 30 September 1975 the High Court handed down its judgement in Victoriav the Commonwealth. The Court held that, except for the constitutional limitation on the power of the Senate to initiate or amend a money bill, the Senate was equal with the House of Representatives as a part of the Parliament, and could reject any proposed law, even one which it could not amend. Yet still Whitlam and his acolytes have continued to rail against the Senate.

Although Whitlam was constantly reminding the Governor-General, both privately and publicly, that he could act constitutionally only on the advice of his prime minister, that he was not entitled to seek external advice, and that he could not consult the Chief Justice of the High Court, the existence of the Governor-General's reserve powers, which may be exercised contrary to, or without, the advice of the prime minister, would have been, or should have been, well known in Labor circles. One of the most definitive and scholarly works on the subject, entitled The King and His Dominion Governors, had been written in 1936 by Dr. H.V. Evatt. In 1940, Evatt, who was then a Justice of the High Court of Australia, and later became the national leader of the Australian Labor Party, wrote in The Canadian Bar Review:

So far as Australia is concerned, a long course of practice tends to negative the proposition that the Governor-General of the Commonwealth of Australia or the Governor of a State is a mere automaton in the hands of Ministers who have lost, or are about to lose, the support of Parliament.

More to the point, Whitlam's advice to Sir John Kerr was contrary to Labor's quite different view in 1951, when Prime Minister Menzies sought a double dissolution from Governor-General Sir William McKell. Labor's view then was that the Governor-General was not obliged to accept the Prime Minister's advice and indeed should not accept it unquestioningly; that he should not simply accept the advice of the first two law officers of the Crown; that he should instead seek independent legal advice; and that he should seek it from the then Chief Justice of the High Court, Sir John Latham.

Whitlam has continued to claim, again quite falsely, that Sir John had ignored a joint legal opinion from Attorney-General Kep Enderby and Solicitor-General Sir Maurice Byers. In fact there was no such joint legal opinion, and Whitlam has always known that, despite his protestations to the contrary.

Finally, there is one aspect of the 1975 supply crisis that Professor Evans has not written about, that he did not mention in his seminar address, and that Whitlam and the media have ignored as well. I refer to the170 precedents that the Australian Labor Party established between 1950 and 1970 for what Fraser did in 1975.

On 18 June 1970 Whitlam's Leader in the Senate, Lionel Murphy, told the Senate of Labor's proud tradition since 1950 of attempting to use the Senate to defeat a government's money bills for the sole purpose of forcing the government to an early election, and he had the list incorporated in Hansard. The last two of those 170 attempts were by Whitlam himself, in 1967 against the Holt Government, and again in 1970 against the Gorton Government. On both occasions Whitlam told the Parliament that a government that could not get supply from the Senate must resign and recommend an immediate election.

As Jack Kane, one-time federal secretary of the Australian Democratic Labor Party and former DLP Senator for New South Wales, wrote in 1988:

There is no difference whatsoever between what Whitlam proposed in August 1970 and what Malcolm Fraser did in November 1975, except that Whitlam failed. ... Senator Murphy, for Whitlam, sought the votes of the DLP senators, unsuccessfully. That is the only reason why Whitlam did not defeat the 1970 budget in the Senate and thus fulfill his declared aim to destroy the Gorton government.

So when Whitlam told the nation that the Senate's action in refusing supply to his Government was unprecedented, he may literally have been telling the truth, but he was not telling the whole truth. While 1975 was the first successful attempt, the truth of the matter is that, over a period of twenty years, Labor had established 170 precedents, albeit unsuccessful ones, for what Fraser did in 1975, and Whitlam himself had been the architect of the last two of those precedents. Clearly, 1975 was a case of the biter bitten. The Labor Party's mythology about the 1975 supply crisis and the dismissal of the Whitlam government has no basis in fact.

The next time Professor Evans writes or lectures about the 1975 supply crisis and the "hitherto accepted understandings of the constitutional conventions" I hope he will remember that both Gough Whitlam and Senator Lionel Murphy repeatedly declared in Parliament that a government that cannot obtain supply from the Senate must resign and recommend an immediate election. The learned professor might also make clear whether his reference to constitutional conventions is to those that apply when Labor is in government, or to those that apply when Labor is in opposition, for it would seem that the two are quite different.

I also hope that Professor Evans will be less selective and more forthcoming about all of our constitutional conventions, and not just confine himself to those that sustain his political biases and prejudices. As Chancellor of The Australian National University he owes his audiences nothing less.