Visions and values of Australia's Governors-General

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.