Should the then Governor-General, Sir John Kerr, have dismissed the Whitlam Government?
What they said ...
. . . ``Well may we say `God save the Queen' . . . because nothing will save the Governor-General!''
(dismissed Prime Minister Gough Whitlam on the steps of Parliament House, November, 1975
`We shall all have to live with this'
Sir John Kerr, commenting to dismissed Prime Minister, Gough Whitlam, on the consequences of the events of November, 1975
The issue at a glance
At 1 pm on November 11, 1975, Governor-General, Sir John Kerr, handed the Prime Minister, Gough Whitlam, a letter withdrawing his commission.
This event has come to be referred to in Australian political history as `the dismissal'.
At 1.30, on the same day, Sir John Kerr commissioned the then Opposition leader, Malcolm Fraser, to form a caretaker government, on the understanding that he would secure Supply and seek an election.
November 1995 saw the 20 year anniversary of these events and revealed that the debate surrounding them is still alive for many people.
It also revealed that most of those features of the Australian political scene which made the dismissal possible remain in place today.
Background
The Whitlam Labor Government came to office on December 2, 1972. It was the first time in 23 years that a Labor Government had been elected.
This meant that the Whitlam Government was composed of individuals with, on the one hand, an enthusiasm for immediate reform and, on the other, a significant lack of administrative experience.
Some analysts also claim that for the Liberal/National Country Party Coalition, having been in government for a generation made it difficult for its members to accept either their new position as the Opposition or the legitimacy of the Whitlam Government.
The Whitlam Government introduced a program of marked reform. This reform program included pulling Australian troops out of Vietnam; banning sporting contact with South Africa; commissioning inquiries into Aboriginal land rights; abolishing education fees; supporting women's rights; lowering the voting age to 18; modifying the electoral system; introducing Medibank (universal health insurance funded through taxation) and making welfare payments available to single parent families.
Some of these reforms and the speed with which the Whitlam Government acted was seen by the Opposition as evidence of the damage it was likely to do to social and political structures in Australia.
Mixed with the Government's program of reform were a series of scandals and administrative blunders, including the Whitlam Government's ill-fated attempt to raise money through loans from the Middle East in a manner that was widely condemned as illegitimate.
These scandals and blunders served to discredit the Government in the eyes of the Opposition and later the electorate.
High inflation and high unemployment also damaged the Whitlam Government.
Throughout its period in office the Whitlam Government never had a clear majority in the Senate.
From December 1972 to December 1975, the Coalition was able to use its numbers in the Senate to form alliances with either Democratic Labor Party senators or independents and reject many government bills.
In April 1974 the Whitlam Government went to an early election in an attempt to prevent the Senate from frustrating its legislation.
It won this election, but did not secure a majority in the Senate.
On October 15, 1975, the Coalition used its numbers in the Senate to block the Whitlam Government's Appropriation Bills. This denied the Government the money it needed to govern.
Almost a month later the Governor-General acted to resolve the deadlock by dismissing the Whitlam Government and installing the Opposition leader, Malcolm Fraser, as head of a caretaker Government which could guarantee Supply.
An election was called for December 13, 1975. It was won by the Coalition with a 55 seat majority.
Some features of Australia's Constitution and form of Government
Most of the features of Australia's system of government are prescribed in the Australian constitution.
A constitution is a binding document describing a country's form of government.
Australia has two houses of Parliament - the House of Representatives and the Senate.
Both are popularly elected, however, the Representatives is more directly elected and is assumed to reflect more closely the will of the people.
The political party with a majority in the House of Representatives forms the government and legislation normally originates in the House of Representatives, though the constitution allows the Senate to propose bills.
The Senate is primarily intended to be a States house and a house of review.
The Senate is a states house as each of the states elects the same number of representatives to the Senate. Thus each state has equal influence in the Senate.
This is intended to be a way of ensuring that the more populous states of New South Wales and Victoria do not dominate the government through their far greater number of members in the House of Representatives.
As a house of review the Senate has the power to reject bills forwarded to it from the House of Representatives and to recommend amendments to legislation originating in the House of Representatives.
It has the power to reject or defer money bills or appropriation bills.
Appropriation bills have to be passed by the Senate so that the government can access the money needed to govern the country. (Another term for appropriation bills is supply bills.)
Appropriation bills are normally put before the Senate twice a year.
1975 was the first time since Australia's federal government was established in 1901 that the Senate had blocked Supply.
This is significant because Australian principals of democratic government originate from two the sources - the constitution itself and the conventions that surround its application.
A convention is the typical, usual or accepted manner in which an aspect of government operates.
The conventions are necessary for two reasons. No constitution is a perfect document. All contain contradictions and omissions. Also, political reality alters over time in a way that may not have been envisaged by those who draw up a constitution. For example, the Australian constitution was written before the development of Australia's party system.
When the Senate blocked Supply in 1975, this challenged what some claimed was the convention that it should not do so and began to establish a new convention that such an action was acceptable.
Another key factor in the 1975 crisis was the role and powers of the governor-general.
Australia is a constitutional monarchy. It has a democratic system of government, however, its Head of State is the Monarch, when that person is in Australia, or the Governor-General otherwise.
Much of the Governor-General's role is ceremonial or symbolic - opening Parliament, swearing in Government ministers. However, he has a number of more substantial functions, such as serving as president of the Executive Council, which attempts to ensure that all actions of the government are constitutionally correct and lawful.
The Governor-General also has another set of powers called reserve powers.
Not all the reserve powers are fully spelt out within the Australian Constitution and some which are clearly stated have never been employed. For example the Governor-General is nominally the Commander-in-Chief of Australia's armed forces, however, he never acts in this capacity.
It was one of these powers that Sir John Kerr called upon when he dismissed the Whitlam Government.
Internet information
NOTE: the original outline was written without Net information. The link below was not used in compiling the outline
The Australian Public Law site is created and maintained by lecturer Ken Parish and students in the Law School at Northern Territory University, Darwin. Parish's lecture The Executive and the Whitlam Dismissal is a detailed and informative document looking at the constitutional legality of the dismissal, as well as other aspects. Click 
.
The original link is at http://www.ntu.edu.au/faculties/lba/schools/Law/apl/Constitutional_Law/whitlam.htm
Arguments in favour of the Governor-General's dismissal of the Whitlam Government
The two principal arguments offered in support of Sir John Kerr's dismissal of the Whitlam Government are firstly that it was necessary and secondly that it was legal,as the constitution allows it.
On the question of the necessity for the dismissal of the Whitlam Government, supporters of Kerr's action stress that the Labor Government was not able to get its finance (Supply or Appropriation) Bills through the Senate.
If the Government had remained unable to have its Supply Bills passed by the Senate, it has been claimed it would ultimately have run out of the money needed to govern the country.
It has been argued the Government would not then have been able, for example, to pay the wages of all those who served in the armed forces or of those who worked in the various departments of the Commonwealth Public Service.
Political analysts have suggested that Kerr's belief that the Opposition would not relent and pass the Supply Bills in the Senate led to his decision to sack the Whitlam Government.
Sir John Kerr recorded in his diary that in a private discussion with Malcolm Fraser, held on October 21, 1975, Fraser had assured him that `a firm decision had been taken to deny Supply, that this would be persisted in to the end ... [and] that the bills would be deferred as often as they were presented'.
It has further been argued that Kerr dismissed the Whitlam Government and appointed Malcolm Fraser as head of a caretaker Government because he believed this was the only way Supply could be guaranteed
Malcolm Fraser has given an account of the guarantees Kerr had sought from him before swearing him in as caretaker Prime Minister on November 11, 1975, after Whitlam had been sacked.
Fraser claims Kerr asked him four questions, the first of which was, `If appointed Prime Minister would [you, Malcolm Fraser] move immediately to get the Supply Bill passed by the Parliament.'
Fraser answered `yes'.
Among the other questions Fraser was asked was if he would immediately recommend the two houses of Parliament be dissolved and a general election be called.
A number of different scenarios have been presented suggesting the sort of untenable situation that would have resulted had the Labour Government attempted to continue to govern after the money had run out.
Malcolm Fraser cites anunnamed conservative politician who was also on the board of a bank.
Fraser claims this man stated `he had seen phoney and illegal certificates that had been prepared by the [Whitlam] Government to co-opt the banks into paying the Government's bills.'
Fraser goes on to claim, `This would have meant that directors and senior officers of the private banks would have been subject to the most awful penalties if they had been made to go ahead with the irresponsible and illegal use of the banks' resources.'
Kerr, in his statement of reasons for the dismissal, stated that the alternative arrangements the Government was considering to finance public servants and others did not amount to a satisfactory alternative to Supply.
On the second major justification of the dismissal, the supposed legality of Kerr's action, it has been claimed it was legal on two related counts.
The first argument put in support of the legality of Kerr's action is that section 53 of the Australian constitution gives the Senate the power to defer, that is, refuse to pass, a Supply Bill.
(There is some dispute as to whether the constitution gives the Senate the power to reject a Supply Bill, however, this is not an issue here as the 1975 Supply Bills were only ever deferred.)
The Chief Justice of the High Court, Sir Garfield Barwick, advised Kerr, in a letter dated November 10, 1975, that `A government having the confidence of the House of Representatives but not that of the Senate ... cannot secure Supply to the Crown'.
The conclusion Barwick drew from this, and that Kerr accepted, was that the Prime Minister of a Government with a majority in the House of Representatives, that had not been able to carry its annual budget (including Supply Bills) through the Senate, should either resign or advise an election.
The second argument put in support of the legality of Kerr's action is that Section 64 the Constitution allows the Governor-General to appoint officers to administer various aspects of government.
What in practice this has meat is that the Governor-General approves and then swears in those ministers whose names are forwarded to him by the Prime Minister.
However, it has been claimed, the clause with Section 64 of the constitution which states that ministers `shall hold during the pleasure of the Governor-General' is used as constitutional justification of the Governor-General's power to dismiss a government.
Those who supported the dismissal of the Whitlam Government have linked these two positions outlined above and claimed that once a Government was unable to guarantee Supply the Governor General should dismiss that Government and appoint a caretaker Government which would secure Supply and then advise that an election be called.
This was the position put to Kerr in Barwick's letter of November 10, 1975. It was also the position put by then Opposition front-bencher, Bob Ellicott, QC, on October 16, 1975, one day after the Opposition in the Senate first deferred the Supply Bills.
In response to those who claimed that the dismissal was a challenge to Australian democracy as it prevented an elected Government from completing its term of office, supporters of Kerr's action argue that all the dismissal did was force an election.
Those who hold this view maintain that as the dismissal was intended to procure an election it cannot be seen as an attack on democracy.
It has also been suggested that the electorate, in voting for the Coalition in December, 1975, indicated that it supported Kerr's action.
Arguments against the Governor-General's dismissal of the Whitlam Government
There are two major arguments put against Sir John Kerr's decision to dismiss the Whitlam Government. The first argument is that it was not necessary and the second is that it went beyond the Governor-General's legitimate authority and threatened Australian democracy.
Those who argue that the dismissal was unnecessary do so on three grounds.
The first argument put is that the Opposition in the Senate would ultimately have given way and passed the Supply Bills.
The Australian, in its editorial of November 9, 1995, paraphrases a number of points made by Gough Whitlam during an address given to the National Press Club the day before.
`By November 11, 1975, the defection of only one Liberal senator was needed for a Senate resolution to vote on the Budget and ... as many as five Liberal senators would then have refused to reject the Budget outright.'
The Australian's editorial comments on Whitlam's opinion, `As time passes his (Whitlam's) case seems to be strengthened by new evidence from witnesses, including some former Liberal MPs...'
According to this argument there was a strong likelihood that the Supply Bills would ultimately pass through the Senate without an election having to be called, and further, at the time Kerr dismissed the Whitlam Government, that Government had not been denied Supply, as its Budget bills had been deferred, not rejected.
The second argument put as to why the dismissal was unnecessary is that alternate arrangements could have been made to meet the Government's monetary needs and so there was no need to dismiss the Whitlam Government in order to ensure that financial obligations were meet.
Finally, it has been argued that a dismissal may have been avoided had the Governor-General been open with the Prime Minister, Mr Whitlam, and given him clear warning of his concerns.
There are those who argue that had Whitlam been warned by Kerr that his Government faced the possibility of dismissal, Whitlam may have been prepared to advise a general election so that he would at least have had the advantage of going into that election as Prime Minister.
Those who are critical of Kerr's actions are particularly disturbed by Kerr's secrecy about his intentions and by his failure to advise and consult with the Prime Minister.
Critics of Kerr's behaviour claim that he failed in his constitutional obligation to counsel his Prime Minister. They further claim that the dismissal was effectively a surprise attack and that by not warning Whitlam of the possibility of a dismissal, Kerr helped to ensure that it would occur.
Whitlam, commenting on Kerr's actions, in a 1995 address to the National Press Club, stated, `All Sir John Kerr had to do was his duty - his duty to be open, frank and honourable in his dealings with the prime minister. But that way there could have been no ambush...'
The second set of arguments opposing Kerr's action in dismissing the Whitlam Government claim that Kerr overstepped his authority in so doing.
This line of argument challenges the nature, extent and perhaps the very existence of the `reserve powers'.
Whitlam has stated on more than one occasion that he does not believe the reserve powers exist.
As these reserve powers' have neither been fully `codified' or clearly written down, those who defend them are, it is argued, unable to state comprehensively just what they include.
Thus, it has been claimed, the reserve powers have tended to be defined by use.
It has been argued that in dismissing an elected Government, under the circumstances that existed in November, 1975, Kerr set a very dangerous precedent or example and effectively extended the powers of the Governor-General in a way which was anti-democratic.
An additional criticism is that Kerr behaved inappropriately in dismissing the Whitlam Government because he effectively became the agent of one political party against another.
This view has been put by author and social commentator, Donald Horne, who has written, `The governor-general secretly made a plan the effect of which was to support the political plans of the Liberal and National Country parties.'
Those who hold this view maintain that 1975 was essentially a political crisis rather than a constitutional one.
It has been claimed that Supply had been blocked in the Senate for an entirely political purpose (political being defined as `concerning political parties and which of them will govern').
According to this point of view, the Coalition was delaying Supply in the Senate not because it was critical of the Supply Bill, nor because it was defending states' rights, but in order to force an election which it believed it could win.
In this context, it has been suggested, the Governor-General should not have accepted the word of one political leader over another, particularly over the word of his elected Prime Minister.
According to this line of argument, Kerr should not have accepted Fraser's assurance that the Senate would continue to block supply. By accepting Fraser's judgment and acting as though it were a fact, it has been claimed that Kerr forfeited his impartiality.
Constitutionally, the governor-general is supposed to be above politics. He is not intended to become a player in any political dispute. Generally, he acts on the advice of his Prime Minister, and where he believes he needs to exert influence he does so through persuading his Prime Minister.
Those who oppose Kerr's actions argue that he became involved in a political wrangle and did so in a way that favoured one political party over another.
The underlying concern about the use of the supposed `reserve powers' and the involvement of the Governor-General in a political dispute is that the Governor-General is not elected.
It has therefore been claimed that the Governor-General's decision to dismiss an elected government and install an unelected, caretaker government in its place is an attack on Australian democracy.
It has been claimed that the dismissal remains an attack on democracy, even if it did result in another election, as the election of December 1975 was not called via the democratic process, but on the judgement of one, unelected man.
Further implications
The implications of Sir John Kerr's decision to dismiss the Whitlam Government are enormous.
It has been suggested that disapproval of the dismissal is one of the factors encouraging moves to make Australia a republic.
Those who make this suggestion argue that Kerr, in using the supposed Royal Prerogative, or `reserve powers' to dismiss an elected government brought the monarchy, whose representative he was, into disrepute.
According to this line of argument, one way of ensuring that the monarch's representative never again acts in a similar manner is to do away with Australia's formal connection to monarchy and become a republic.
However, this is a superficial view. Kerr took his action unilaterally, without consulting the Crown. Further, the powers of the Senate to block Supply and the `reserve powers' of the Head of State may both remain unaltered if Australia becomes a republic.
Current proposals for a republic, as advanced by the federal Labor Government, do not attempt to diminish the `reserve powers'.
The current Federal Government's republic proposal is prmarily for a change of name, so that the Governor-General becomes the President. This is a symbolic change rather than a change in substance.
While the `reserve powers' continue to exist a repeat of Sir John Kerr's actions in 1975 remains, for better or worse, a possibility.
Further, if it is decided that any president of Australia should be elected rather than appointed by the government, then this would add greatly to such a president's potential authority.
An increase in presidential authority would seem to make it even more necessary that such a president's powers be clearly spelt out.
If an elected president's powers were not clearly spelt out, and sensibly limited, then there would be enormous potential for irresoluble conflict between an elected president and an elected government, both claiming to derive their authority from the Australian people.
The current Governor-General, Bill Hayden, who was formerly a member of the Whitlam Government, has stressed the dangers of an elected president whose powers have not been reasonably curtailed.
Another major concern to emerge from 1975 which has still not been addressed 20 years later is the question of whether the Senate should be able to block Supply.
A related question is that of whether once the Senate has blocked Supply, the Government must then automatically call an election.
The importance of this question has been highlighted by the position put by the former Chief Justice, Sir Garfield Barwick in a recent book.
Barwick argues that no Government based on a majority in the House of Representatives should be able to remain in government without the confidence of the Senate.
One of the indicators Barwick gives of a loss of the confidence of the Senate is a government's failure to carry its annual budget through both houses of Parliament.
Barwick's argument would seem to give the same weight to a majority in the Senate as it does to a majority in the House of Representatives.
Some constitutional authorities have found this disturbing as members of the House of Representatives are more directly elected and a majority in the House of Representatives, not the Senate, determines which party shall form government.
Whitlam has pointed out that if a majority in both houses is effectively required to guarantee a government will complete its term, then none of the last seven Australian governments has been secure.
A number of constitutional reformers have urged that the Senate should be stripped of its power to block Supply.
The leader of the Democrats, Cheryl Kernot, announced in early November, that her party would introduce legislation to remove from the Senate its power to impede money bills.
It will be interesting to note how the Labor Government responds to such legislation, as removing this power from the Senate is not on its republic agenda.
Among the other unfinished business to grow out of the crisis of 1975 is the suggestion that governments should be guarantied four-year fixed terms.
Analysts looking at the 1975 situation have argued that the Whitlam Labor Government was required to fight three elections in three years - the 1972 election, in which it gained office; the 1974 election, forced on it after a hostile Senate had twice rejected nine bills; and the 1975 election, called after the Whitlam Government was dismissed.
It has been argued that no government can govern effectively if it is constantly being required to fight elections and has no short-term security of tenure.
Whitlam has long argued that governments should be guarantied four-year fixed terms.
The only constitutional change to grow out of the events of 1975 is that the Fraser Government successfully put a referendum to ensure Senate vacancies were filled by candidates of the same party.
Newspaper sources
The Age
4/11/95 page 4 analysis by Innes Willox (list of major political events on the days leading up to and including November 11, 1975), `The Final Days'
4/11/95 page 3 (Extra section) analysis by Rachel Buchanan, `Maintaining the rage'
4/11/95 page 4 (Extra section) comment and analysis by Michelle Grattan, `... Because nothing will save the Governor-General'
9/11/95 page 1 news item by Innes Willox, `Curb the Senate: Whitlam'
9/11/95 page 14 comment by Michelle Grattan, `Rethinking the lessons of the Dismissal'
9/11/95 page 15 editorial, `Revisiting 1975 on the road to a republic'
Australian
4/11/95 page 12 (Australian Magazine insert) analysis by Paul Kelly, `The fatal mistake'
6/11/95 page 10 analysis by Paul Kelly, `The Kerr-Fraser liaison'
9/11/95 page 11 comment and analysis by Gough Whitlam (edited transcript of a speech given to the National Press Club), `Whitlam - why it still matters'
9/11/95 page 11 analysis and comment by Mungo MacCallum, `Gough's was not the major voyage to mutiny'
9/11/95 page 14 cartoon by Michael Leunig, `Untitled'
The Herald-Sun
4/11/95 page 3 analysis by Dan McDonnell, `He's been sacked'
4/11/95 pages 25-6 analysis by John Hamilton, `Fraser has no regrets'