- This final lecture deals with the
relationship between the Parliament and Executive (in particular
the Queen and Governor-General), by examining the events
surrounding the 1975 dismissal of the Whitlam Labor government
(the only situation at federal level where the nature and scope of
Executive reserve powers has ever been tested). This area of
the Constitution is important, because, although such crises are
very infrequent, they have the potential to cause major social and
political dislocation and even war or revolution (e.g. the recent
Fiji constitutional crisis, or the current situation in Indonesia
between President Wahid and the Parliament)
- I do not intend dealing with the role
and powers of the Executive generally; the so-called 'nationhood'
power; or the "Shield of the Crown" (including inter-governmental
immunities). These parts of Chapter 10 will be dealt with in
the semester 2 unit Constitutional Law.
- There are numerous sections of the
Constitution which confer powers and functions on the
Governor-General e.g. sections 5, 32, 57, 58, 60, 61, 64, 68,
72.
- Most of these sections use the
formulation "the Governor-General in Council" (i.e. the Executive
Council - see sections 62 and 63). It is beyond question
that where this formulation is used, the Governor-General must act
only on the advice of the Prime Minister.
- However, there are some sections which
do not use this formulation e.g. section 61 which simply vests the
whole of the executive power of the Commonwealth in the Queen and
states that it is to be "exercisable by the Governor-General"; or
section 62, which simply provides that the Governor-General may
choose his Executive Council.
- A minority of commentators have argued
that any section where the formulation "the Governor-General in
Council" is not used is a potential area where, at least in some
circumstances, the Governor-General is free to act on his own
judgment. However, that is certainly not the generally
accepted view. Indeed if it were accepted, the office of
Governor-General would have powers approaching those of an
absolute monarch. The accepted view is that there are only 4
powers which the Governor-General may properly exercise on his own
judgment (i.e. other than on the advice of the elected government
or strictly in accordance with convention).
- It is generally accepted that there
are 4 so-called 'reserve' powers i.e. powers that may in some
circumstances properly be exercised by the Governor-General either
without the advice of the Prime Minister or even contrary to it.
They are the powers to:
- appoint a Prime Minister (section 64
of the Constitution);
- dismiss a Prime Minister and thus a
government (section 64);
- refuse to dissolve the House of
Representatives (sections 5, 28); and
- force a dissolution of the House of
Representatives (sections 5 and 28 of the
Constitution).
- One can clearly see that the Head of
State needs to have some freedom of action in these areas at
certain times e.g. the power to appoint a Prime Minister may be
needed where a PM dies in office and it is not clear who the
governing Party intends to elect as his successor (the Harold Holt
situation). The power to dismiss a PM may be needed where
the government refuses to resign or advise an election despite
having lost the confidence of the Lower House. However, some
possible uses of the reserve powers are more controversial.
The situation surrounding the Whitlam dismissal provides the
classic example.
- The rules as to when a
Governor-General is entitled to exercise these powers on his own
initiative are found only in unwritten conventions, not in the
text of the Constitution.
- For a useful, straightforward
discussion of the reserve powers, see The
Governor-General's reserve powers from Palmer's Oz
Politics. For a more complete coverage see: Downing S, The Reserve
Powers of the Governor-General - Cth
Parliamentary Library Research Note 25 1997-98 (23 January
1997)
- The generally accepted scope of the
conventions as to when a Governor-General could properly dismiss a
Prime Minister prior to the events of 1975 were:
- when the Prime Minister refuses to
resign in situations where convention calls for resignation (for
example, after losing a motion of no confidence in the House;
after losing the leadership of the majority party or coalition;
or after failing to get a money Bill passed by the Parliament);
and
- when a government acts illegally or
persists in breaching a fundamental constitutional provision and
those breaches cannot be brought before the courts
- The events of 1975 have arguably added
a third situation, namely inability to obtain Supply, although
some still argue that the Governor-General's actions were entirely
improper, and that there are still only 2 situations where
the Governor-General may properly exercise his power of dismissal
(namely loss of a no confidence motion; and persistent and serious
illegal conduct).
- Note that it is meaningless to talk
about "legality" in relation to the Governor-General's exercise of
the reserve powers. They are universally accepted as being
non-justiciable (i.e. not subject to adjudication as to the
legality of their exercise by the High Court or any other
court). Thus, the only sanctions for improper exercise of
the reserve powers are political ones (including the fact that the
Queen can, and is ultimately obliged to, dismiss the
Governor-General on advice of the Prime Minister - as to which see
below).
- Note, too, that although there
is general agreement about the scope and meaning of the
conventions in most situations, there are some areas where
disagreement and uncertainty remain. Some regard this as a
strength of Australia's constitutional system, while others view
it as a source of potential instability. Uncertainty about
the exact content of the conventions clearly played a role in the
events of 1975.
Constitution section 53 reads:
"Proposed laws
appropriating revenue or moneys, or imposing taxation, shall not
originate in the Senate. But a proposed law shall not be taken
to appropriate revenue or moneys, or to impose taxation, by
reason only of its containing provisions for the imposition or
appropriation of fines or other pecuniary penalties, or for the
demand or payment or appropriation of fees for licences, or fees
for services under the proposed law.
The Senate may not
amend proposed laws imposing taxation, or proposed laws
appropriating revenue or moneys for the ordinary annual services
of the government.
The Senate may not amend any proposed
law so as to increase any proposed charge or burden on the
people.
The Senate may at any stage return to the House
of Representatives any proposed law which the Senate may not
amend, requesting, by message, the omission or amendment of any
items or provisions therein. And the House of Representatives
may, if it thinks fit, make any of such omissions or amendments,
with or without modifications.
Except as provided in this
section, the Senate shall have equal power with the House of
Representatives in respect of all proposed
laws."
Constitution section 57 reads:
"If the House of Representatives
passes any proposed law, and the Senate rejects or fails to pass
it, or passes it with amendments to which the House of
Representatives will not agree, and if after an interval of
three months the House of Representatives, in the same or the
next session, again passes the proposed law with or without any
amendments which have been made, suggested, or agreed to by the
Senate, and the Senate rejects or fails to pass it, or passes it
with amendments to which the House of Representatives will not
agree, the Governor-General may dissolve the Senate and the
House of Representatives simultaneously. But such dissolution
shall not take place within six months before the date of the
expiry of the House of Representatives by effluxion of
time.
If after such dissolution the House of
Representatives again passes the proposed law, with or without
any amendments which have been made, suggested, or agreed to by
the Senate, and the Senate rejects or fails to pass it, or
passes it with amendments to which the House of Representatives
will not agree, the Governor-General may convene a joint sitting
of the members of the Senate and of the House of
Representatives.
The members present at the joint sitting
may deliberate and shall vote together upon the proposed law as
last proposed by the House of Representatives, and upon
amendments, if any, which have been made therein by one House
and not agreed to by the other, and any such amendments which
are affirmed by an absolute majority of the total number of the
members of the Senate and House of Representatives shall be
taken to have been carried, and if the proposed law, with the
amendments, if any, so carried is affirmed by an absolute
majority of the total number of the members of the Senate and
House of Representatives, it shall be taken to have been duly
passed by both Houses of the Parliament, and shall be presented
to the Governor-General for the Queen's
assent."
- In the lead-up to the 1975 dismissal,
the effectively Liberal-controlled Senate had delayed and deferred
passing a Supply Bill (i.e. a Money Bill) proposed by the Whitlam
Labor government to appropriate revenue for government use.
A double dissolution "trigger" had not yet been created by the
failure to pass Supply, because there had not been 2 separate
failures to pass at least 3 months apart (see section 57).
However, there were already double dissolution "triggers" arising
from failure by the Senate to pass various other Bills. Thus,
Prime Minister Whitlam could have advised the Governor-General to
call a double dissolution election at any time to resolve the
deadlock between the Houses, and the Governor-General would
certainly have granted it.
Constitution section 83 provides:
"No money shall be drawn from the
Treasury of the Commonwealth except under appropriation made by
law."
The events leading to
the Whitlam dismissal
- See The PM and the
Governor General - Monash University political science
lecture notes which provide an excellent and detailed summary of
the events of and surrounding the dismissal.
Arguments for and against
Sir John Kerr's actions
Academic commentators'
views
(a) "It is precedent that determines so
much of the scope of the exercise of power in the office of
Governor-General, and practice that puts bounds to the royal
prerogative. Some of the arguments that were advanced against what
the Governor-General did before he did it -- which were arguments
intended to deter him from doing it or others from saying he ought
to do it -- have been negated by the fact that he did it. The
powers of the Senate to refuse supply as well as the functions of
the Governor-General, have been clarified by the events. What
portents exist for the future, and whether in the light of what
the future holds the actions of any persons concerned will be
judged not to have been prudent, is another matter."
Professor D. P. O'Connell writing
in 1976 about the events of 11 November
1975.
(b) "There can be no question about
[Sir John Kerr's] legal power to do what he did and there can be
equally little doubt that some of the wider dicta in
constitutional histories and textbooks about the reserve power of
the Crown and Governors provided general principles of
'constitution preservation' under which the particular
circumstances of his action could be subsumed. It is also possible
that in a relatively short space of time, he would have been
compelled to take some such action because of a pressing and more
defensible ground for action -- namely the occurrence of illegal
conduct on a substantial scale, shown to be illegal either by
judicial decision or at least by inherently credible opinions not
seriously open to question, or as to which no rebuttal was
attempted, and systematically undertaken or authorised by Mr
Whitlam and his ministry in an effort to do without relevant
Appropriation Acts. However, in the circumstances which actually
existed on 11 November 1975, and having regard to the way in which
he acted, Sir John Kerr is open to the criticism of having (i)
adopted a wrong procedure, (ii) based his decision on a mistaken
principle, and (iii) intervened prematurely."
Professor Geoffrey Sawer
writing in 1977 about the events of 11 November 1975 (1977, at
page 170).
(c) "The Governor-General is under a
constitutional obligation to have as his advisers -- to be the
government of this country -- only parliamentarians who are able
to secure supply. Such advisers must have and retain the approval
of the Parliament to be and remain the government of the country.
The grant of supply is the ultimate mark of that
approval."
Sir Garfield Barwick
writing in 1983 about the events of 11 November 1975
(presumably reflecting the advice he actually gave to Sir John
Kerr immediately prior to 11 November 1975, and which in part
led to the
dismissal).
1. Is there a conflict
between the conventions about the use of the reserve powers and the
doctrine of responsible government?
- The Governor-General's failure to warn
the Prime Minister of his intention to dismiss him if Supply was
not obtained (or an election advised) was a clear breach of
convention, and thus of the principles of responsible government
(of which the conventions form part). It also flies in the
face of the doctrine of Ministerial responsibility: the Prime
Minister and Cabinet make all Executive decisions save in
extraordinary circumstances, and are entitled to know in advance
if the Governor-General regards such circumstances as imminent, so
they can take whatever legal steps may be open to them to obtain
Supply or advise an election, thereby facing the people
without a taint of impropriety (which is what occurred because of
the way Kerr handled the crisis).
- Leaving aside the question of Kerr's
failure to warn Whitlam of his intentions, the question of whether
the dismissal conflicted with the responsible government doctrine
depends on how one conceptualises that doctrine. The traditional
(i.e. UK/Westminster) model dictates that the Ministers are
responsible only to the popularly elected Lower House.
However, as Barwick has pointed out (see The Whitlam
Dismissal - Chief Justice Barwick's Advice to Sir John
Kerr), that doctrine applies in a system where the
Upper House (House of Lords) is unelected and has no power to
block or amend Money Bills (and only limited power to delay other
bills). The Australian system is quite different. Our
Senate is directly popularly elected by the people (despite Paul
Keating's attempts to characterise its members as
"unrepresentative swill"); and does have an express
constitutional right to block Money Bills (although not to
initiate or amend them - see section 53 set out above).
Barwick's view (that the Governor-General may dismiss a Prime
Minister who is unable to get Supply through the Senate) is also
arguably consistent with the High Court's recent decision in
Egan v Willis to the effect that responsible government
means that Ministers are responsible to Parliament as a whole and
to each of its Houses, not just to the Lower
House.
2. Why was Sir Garfield Barwick able to
advise the Governor-General in advance about the constitutionality
of his actions? Is there a conflict with the doctrine of separation
of powers?
- The Governor-General's exercise of his
constitutional powers (especially the reserve powers) is
universally regarded as non-justiciable. Thus, there was no
risk that Barwick CJ could be called on to adjudicate the question
on which he advised the Governor-General (note that Sir Anthony
Mason also gave advice). Moreover, there had been several
precedents where High Court Justices had given advice to
Governors-General in somewhat analogous situations (see The 1975
Dismissal: Setting the Record Straight by Sir David
Smith - Samuel Griffith Society (1995) - where examples of such
situations are given).
- However, the fact that Australia's
constitutional system has evolved in a manner whereby High Court
Justices can properly give advice to Governors-General in such
situations certainly represents a noteworthy exception to the
normal jealously guarded separation between judicial and executive
functions.
- One might even argue that such a
practice potentially undermines the perceived independence and
integrity of the High Court. Certainly many people at the
time saw Barwick CJ as taking a partisan political position.
On the reasoning in Wilson v Minister for Aboriginal
Affairs (or Kable's case) that would tend to suggest a
conclusion that such a role may not be consistent with judicial
power. On the other hand, if it is generally understood and
accepted that the Chief Justice has a proper role in such a
situation (provided that the advice can be seen to be
non-partisan), there may be less scope for a perception that the
Court is being politicised. The problem with Barwick CJ's
position was that he was a former Coalition politician giving
advice which happened to favour his former political colleagues,
and moreover advice which differed from the generally accepted
view of the reserve powers at the time (albeit that his view might
now be seen as at least arguable if not persuasive - see
above).
3. What do the above differing opinions as to
the Governor-General's actions say about the role of conventions in
Australia's existing constitutional system?
- There is no doubt that any
constitutional system must operate to some extent on the basis of
conventions or informal understandings as to how constitutional
discretions are to be exercised. It is not practically
possible to specify in advance in a constitutional document an
exhaustive list of the situations and factors which might affect
the exercise of such powers. Moreover, it is in their nature
that understandings about conventions will develop over time
through experience. Nevertheless, one may reasonably argue that
the complete lack of any specificity in Australia's Constitution
creates a potential area of systemic instability. There is a
strong case at least for defining in our Constitution which of the
Governor-General's powers may sometimes be exercised on his/her
own initiative, and probably also a non-exhaustive list of factors
relevant to exercise of those reserve powers.
4. Was Sir John Kerr's fear, that Prime
Minister Whitlam might act pre-emptively to sack him as
Governor-General if Kerr had warned him in advance of the
possibility of dismissal, a reasonable one? Why?
- No. The generally accepted view
about the role of the Queen was propounded by Walter Bagehot
(The English Constitution (1867)):
"The Sovereign has, under a
constitutional monarchy such as ours, three rights--the right to
be consulted, the right to encourage, the right to
warn."
The Crown is to be absolutely neutral
in political affairs and is duty-bound ultimately to act on the
advice of the elected ministers (except perhaps in cases where the
advice being given is seriously and patently
unconstitutional). Thus, if the Queen had received advice
from Prime Minister Whitlam to dismiss her Australian
Governor-General instantly, she would certainly have demanded a
full explanation and extensive consultation before acceding to
that advice. It is likely that she may even have insisted that the
Prime Minister go to London to confer on the matter. If Sir
John Kerr had consulted the Queen in advance about his proposed
course of action, and if she had concurred in it, then she would
certainly have insisted on a reasonable period to consider the
Prime Minister's advice. Thus Kerr could have formally
warned Whitlam of his intention to proceed to dismissal if the
Supply crisis was not resolved within a nominated reasonable
period of time, in the sure knowledge that Whitlam would not be in
a position to effect a pre-emptive retaliatory dismissal.
Note that recent statements by the Queen's former assistant
private secretary Sir William Heseltine indicate that the Queen
believed that she should have been consulted by Sir John
Kerr about his proposed course of action, and would if consulted
have advised Kerr that his actions were
premature.
5. Would the substitution of a President to
fulfil the role of Head of State, with the Prime Minister having the
power to dismiss the President at any time, and without any other
constitutional changes to the relationship between Parliament and
the Executive (as proposed in the 1999 Republic Referendum), avert a
1975-style constitutional crisis should an analogous fact situation
arise in future?
- Clearly not. In fact the 1999
referendum proposal was clearly inferior in a functional sense to
our current constitutional structure. There was no
equivalent to the role of the Queen as a 'circuit breaker',
obviously a necessary role to avoid instability where the
Head of State (whether called Governor-General or President) and
the Head of Government (the Prime Minister) each has effective
power to dismiss the other. The 1999 referendum model gave
excessive, unchecked power to the Prime Minister, in that he was
to be able to dismiss the President at any time. A viable
republican model must address this issue and provide a mechanism
at least as stable as the one we have now.
6. Proponents of a "Yes" vote at the 1999
Republic Referendum argued that a popularly-elected President would
necessarily result in a fundamental change to Australia's existing
constitutional system, inter alia because they asserted that it
would be impossibly complicated to define the reserve powers with
sufficient precision to avoid giving the President too much power
(given that he/she would, unlike the Prime Minister, be able to
claim a national popular mandate). Would it really be too
complicated to define the reserve powers, or might there have been
other reasons why this assertion was made?
- There has never been a drafting
problem in defining the reserve powers (contrary to the Australian
Republican Movement's claims prior to the 1999 referendum),
although obviously they cannot practically be defined down to the
tiniest level of detail, nor can every possible particular
situation necessarily be anticipated. Nevertheless, the
outline and principles for exercise of the President's powers are
clearly capable of definition. The problem is a purely political
one: the ALP cannot bring itself to agree to any formulation of
the reserve powers which accepts the legitimacy of a Head of State
dismissing an elected government (which retains the confidence of
the Lower House) because of inability to get Supply through the
Senate. Conversely, many other observers (myself included) regard
the Senate as one of the few features of Australia's system
preventing us from becoming an elective dictatorship, and would
never agree to removal of its power to block legislation including
Money Bills. My own view is that Labor is just going to have to
get over the Keating view of the Senate as "unrepresentative
swill" and accept that it has an important role in "keeping the
bastards honest".
- Having considered briefly a couple of
issues relating to Australia's republican future, the last word in
this Introduction to Public Law unit belongs to Walter Bagehot
(The English Constitution (1867)). The following
immortal quote not only provides a persuasive (if unintentional)
argument for republicanism, but also reminds us that
constitutional law probably should not be taken too seriously
(except at exam time):
"Royalty is a government in which the
attention of the nation is concentrated on one person doing
interesting actions. A Republic is a government in which that
attention is divided between many, who are all doing
uninteresting actions. Accordingly, so long as the human heart
is strong and the human reason weak, Royalty will be strong
because it appeals to diffused feeling, and Republics weak
because they appeal to the understanding."
It will be obvious to modern readers
that Bagehot failed to foresee either Bill Clinton or George W.
Bush. |
