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Chapter 2 - Understanding 1975 |
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Chapter 2 - Understanding 1975
Australians who reached the voting age or migrated here after 1975 may not be aware that the powers of the Crown pose a direct threat to democracy.
Our political system combines aspects of monarchy, democracy and federalism. The Crown permeates virtually every part of the Constitution. For example, the Queen is part of Parliament (s.1) and has the power to govern (s.61). The democratic element is mainly reflected in the lower house of Parliament, the House of Representatives, where the number of representatives from each State is required to be proportionate to that State’s share of the national population: s.24. The federal element is mainly reflected in the upper house of Parliament, the Senate, where each State has equal representation, regardless of population: s.7; and in the limits in s.51 on the range of subjects on which the Commonwealth Parliament can make laws. (On subjects not listed in ss.51 & 52, only the States may make laws). A proposed law does not become law until passed by both Houses of Parliament and agreed to by the Queen’s representative: ss. 1 & 58-60.
When our Constitution was written in the 1890s, the authors assumed it would operate according to the unwritten conventions which applied in Britain and the Australian colonies before Federation. The conventions were informal agreements or accepted practices which restricted how powers would be exercised.
When the Australian colonies federated in 1901, the conventions included:
▸ That the Queen appoints as the Government the group which commands majority support in the lower house of Parliament.
▸ That the Queen accepts and acts on the advice of the Government for as long as that Government has majority support in the lower house.
▸ That the upper house does not block the annual budget, which authorises the supply of money to the Government.
Since the members of the upper houses were either not elected, or elected on a much less democratic basis than the lower house, the last convention really reflected the first - for an upper house to deny supply would mean that the democratically elected majority Government could not function. In what follows, it is important to bear in mind that although the Senate is elected, the franchise remains much less democratic than that of the House of Representatives. This is explained in Appendix 2.
After Federation, another convention emerged:
▸ That where an elected senator died or resigned, he or she was replaced by the nominee of that senator’s political party, in order to maintain the balance of power established by the voters.
In practice, the Constitution operated according to all four conventions until 1975. This is a summary of what happened in that year.
▸ Labor, re-elected to Government at the May 1974 election, held 66 seats in the House of Representatives to the Liberal / National Coalition’s 61. In the Senate, Labor held 29 seats out of 60, the same as the Liberal / National Party coalition, and there was one Liberal Movement senator (Steele Hall, the former Liberal Premier of South Australia) and one independent (Michael Townley from Tasmania, formerly a Liberal).
▸ The Liberal Movement senator had stated he would never ‘block supply’ by voting against the budget. This gave Labor 30 votes out of 60 in favour of its budgets. It needed one more to pass its budget, but could block any Liberal move to defer consideration of the budget.
▸ One Labor senator from New South Wales, Lionel Murphy, was appointed to the High Court and another Labor Senator from Queensland, Bert Milliner, died.
▸ The non-Labor Governments of their States refused to follow the convention concerning Senate vacancies and appointed two non-Labor members instead.
▸ The Liberal Country party coalition senators voted to defer further consideration of the budget bills until the Government called an early election for the House of Representatives. The deferral motion could not have succeeded if the senator who had died had been replaced by Labor’s nominee.
▸ The Labor Government, having served only half its term, refused to call an election. For 26 days there was a stalemate. The Government’s supply of money was close to running out.
▸ On 11 November, the Governor-General, Sir John Kerr, dismissed the Labor Prime Minister, Mr Whitlam, on the grounds that he could not obtain the supply of money necessary to run the Government. He appointed the Liberal Opposition leader, Mr Fraser, as Prime Minister on the basis of his assurance that he could procure supply. This breached the convention that the majority in the House of Representatives forms the Government. (He acted on the advice of the then Chief Justice of the High Court, Sir Garfield Barwick, a former Liberal Attorney-General, and another High Court judge, Anthony Mason, each of whom breached a High Court decision, In re Judiciary Act 1903 (1921) 29 CLR 257, which held that the Court did not have power to give an advisory opinion).
▸ The Senate then voted to pass the Labor Government’s budget, with Labor Senators under the impression they were still in Government. Had they known of the dismissal, and had the deceased Queensland senator been replaced with another Labor member, it is likely Labor could have blocked supply to the new Liberal Prime Minister, which logically should have resulted in him being removed.
▸ The new Prime Minister immediately recommended an election be held and the Governor-General dissolved both houses of Parliament, at a time when the Labor Government was deeply unpopular.
▸ The Liberal Country Party coalition won the election with majorities in both houses, and governed for the next 8 years.
Virtually all the features which make our Constitution democratic come from the conventions, rather than the written provisions. In 1975, all the most important conventions were breached, and the parties in breach were rewarded with Government. The written Constitution was shown to have overriding force.
The written Constitution is not democratic. While the convention concerning casual Senate vacancies was written into the Constitution in 1977 - see s.15 - it remains the position that a Prime Minister who has majority support in the House of Representatives can be replaced by an unelected Governor-General with a person who does not have that support. The power to govern is vested in the Queen and Governor-General - see s.61 - and while some powers may only be exercised by the Governor-General “acting with the advice” of his or her Ministers - see ss.63, 64, 72 - nothing requires the Governor-General to follow the Ministers’ advice. Ministers not prepared to advise the Governor-General to do what he or she wants done could be dismissed - s.62. No law can be passed, and no law can be administered, without the Governor-General’s agreement: see sections 58-62 of the Constitution. The Governor-General may also dissolve the House of Representatives whenever he or she wishes: s.5; and may stymie the procedure to resolve a deadlock between the House of Representatives and the Senate by declining to act under section 57.
There is no mechanism in the written Constitution by which the Governor-General can be held accountable for how these powers are exercised. If democratic conventions do not constrain the Crown, nothing does.
Only the written Constitution matters now, and under its provisions this country is closer to dictatorship than democracy.
* * * *
Many arguments have been advanced for maintaining the current Constitution despite what occurred in 1975. Some are considered in Appendix 3 and Appendix 4.
The challenge when considering 1975 is to stand back from our partisan political positions and examine what the crisis showed about the rules of the political game.
Regardless of party allegiance, it would be difficult for anyone examining what occurred in 1975 to disagree with two propositions:
1. The rules laid down in our Constitution as to who should rule, and under what circumstances, are quite unclear. Before an assessment can be made as to whether the rules meet whatever standards we expect, we have to know what the rules are.
In 1975, the House of Representatives had the power to support the Whitlam Government and to refuse to go to another election until its 3 year term had expired. The Senate had the power to defer consideration of the budget bills. The Governor-General had the power to select whomever he chose as Prime Minister, and to call an election of the House of Representatives whenever he chose. The Constitution contains no written provision stating which power should take precedence over the other powers.
So with everyone acting within their powers under the written law, the result from the Constitution - the purpose of which is to ensure stable Government - was a complete impasse and an imminent breakdown of Government. The Constitution failed. This is why it is called a constitutional crisis, rather than a mere political dispute or crisis.
During and since 1975, debate raged over whether the rules were followed, because there was no consensus on what the rules were. Some were written, some were not. What was the status of the unwritten rules? Numerous statements can be found in constitutional law text books that the unwritten conventions are not laws and cannot be enforced, but that they are in a sense more important than laws. Not surprisingly, other writers take the view that conventions which are this important should control how the letter of the law is applied. To have two sets of rules, one written, and one unwritten, is asking for trouble. One clear set of enforceable rules is required.
2. The rules we select should meet certain standards. The rules should be based on principles such as democracy, stability and fairness.
The dismissal of the Whitlam Government which had twice been elected and held a firm majority in the House of Representatives was a clear breach of democracy. Whether our Governments are accountable not just to the lower house, but also to the upper house, was a matter debated at length in the Constitutional Conventions of the 1890s, and our ‘founding fathers’ acknowledged that they had not fully resolved the issue. Kerr and the Liberals showed that the Government was responsible to both Houses. The problem is the House represents the most recently expressed will of the people. The Senate does not - see Appendix 2.
Making Governments responsible to both Houses is not just undemocratic - it detracts from the stability of the system. Governments have to make decisions for the long term, as well as the short term. If they can be removed through the combined impact of Senate obstruction and Vice-Regal intervention we will have more frequent elections and less stability. Does more elections mean more democracy? Not if the representatives just elected do not have a chance to do their jobs.
Perhaps the most surprising aspect of the 1975 crisis is that subsequently the people have been denied any opportunity to build a better system. There were constitutional conferences in the immediate aftermath, but the political players of the day stuck to their partisan positions. The only change was that the Fraser Government, having won office through the breach of the convention concerning casual Senate vacancies, supported a referendum to fix that problem in 1977. It was carried with Labor support. Since then, nothing.
It is simply outrageous that Australians have never been offered the opportunity to vote on a better system, one which would prevent a crisis like 1975 recurring
Australians should have the opportunity to change to the more democratic system set out in the Advancing Democracy model. Regardless of the outcome, the referendum would clarify which rules would apply in a future crisis. Australia could reject the proposal, and confirm that the unprincipled, undemocratic conduct we saw in 1975 is acceptable. We can then look forward to it being repeated. Or we could choose to prevent future crises by adopting clear rules based on democratic principles.
Go to next chapter |
|
|
Chapter 2 - Understanding 1975
Australians who reached the voting age or migrated here after 1975 may not be aware that the powers of the Crown pose a direct threat to democracy.
Our political system combines aspects of monarchy, democracy and federalism. The Crown permeates virtually every part of the Constitution. For example, the Queen is part of Parliament (s.1) and has the power to govern (s.61). The democratic element is mainly reflected in the lower house of Parliament, the House of Representatives, where the number of representatives from each State is required to be proportionate to that State’s share of the national population: s.24. The federal element is mainly reflected in the upper house of Parliament, the Senate, where each State has equal representation, regardless of population: s.7; and in the limits in s.51 on the range of subjects on which the Commonwealth Parliament can make laws. (On subjects not listed in ss.51 & 52, only the States may make laws). A proposed law does not become law until passed by both Houses of Parliament and agreed to by the Queen’s representative: ss. 1 & 58-60.
When our Constitution was written in the 1890s, the authors assumed it would operate according to the unwritten conventions which applied in Britain and the Australian colonies before Federation. The conventions were informal agreements or accepted practices which restricted how powers would be exercised.
When the Australian colonies federated in 1901, the conventions included:
▸ That the Queen appoints as the Government the group which commands majority support in the lower house of Parliament.
▸ That the Queen accepts and acts on the advice of the Government for as long as that Government has majority support in the lower house.
▸ That the upper house does not block the annual budget, which authorises the supply of money to the Government.
Since the members of the upper houses were either not elected, or elected on a much less democratic basis than the lower house, the last convention really reflected the first - for an upper house to deny supply would mean that the democratically elected majority Government could not function. In what follows, it is important to bear in mind that although the Senate is elected, the franchise remains much less democratic than that of the House of Representatives. This is explained in Appendix 2.
After Federation, another convention emerged:
▸ That where an elected senator died or resigned, he or she was replaced by the nominee of that senator’s political party, in order to maintain the balance of power established by the voters.
In practice, the Constitution operated according to all four conventions until 1975. This is a summary of what happened in that year.
▸ Labor, re-elected to Government at the May 1974 election, held 66 seats in the House of Representatives to the Liberal / National Coalition’s 61. In the Senate, Labor held 29 seats out of 60, the same as the Liberal / National Party coalition, and there was one Liberal Movement senator (Steele Hall, the former Liberal Premier of South Australia) and one independent (Michael Townley from Tasmania, formerly a Liberal).
▸ The Liberal Movement senator had stated he would never ‘block supply’ by voting against the budget. This gave Labor 30 votes out of 60 in favour of its budgets. It needed one more to pass its budget, but could block any Liberal move to defer consideration of the budget.
▸ One Labor senator from New South Wales, Lionel Murphy, was appointed to the High Court and another Labor Senator from Queensland, Bert Milliner, died.
▸ The non-Labor Governments of their States refused to follow the convention concerning Senate vacancies and appointed two non-Labor members instead.
▸ The Liberal Country party coalition senators voted to defer further consideration of the budget bills until the Government called an early election for the House of Representatives. The deferral motion could not have succeeded if the senator who had died had been replaced by Labor’s nominee.
▸ The Labor Government, having served only half its term, refused to call an election. For 26 days there was a stalemate. The Government’s supply of money was close to running out.
▸ On 11 November, the Governor-General, Sir John Kerr, dismissed the Labor Prime Minister, Mr Whitlam, on the grounds that he could not obtain the supply of money necessary to run the Government. He appointed the Liberal Opposition leader, Mr Fraser, as Prime Minister on the basis of his assurance that he could procure supply. This breached the convention that the majority in the House of Representatives forms the Government. (He acted on the advice of the then Chief Justice of the High Court, Sir Garfield Barwick, a former Liberal Attorney-General, and another High Court judge, Anthony Mason, each of whom breached a High Court decision, In re Judiciary Act 1903 (1921) 29 CLR 257, which held that the Court did not have power to give an advisory opinion).
▸ The Senate then voted to pass the Labor Government’s budget, with Labor Senators under the impression they were still in Government. Had they known of the dismissal, and had the deceased Queensland senator been replaced with another Labor member, it is likely Labor could have blocked supply to the new Liberal Prime Minister, which logically should have resulted in him being removed.
▸ The new Prime Minister immediately recommended an election be held and the Governor-General dissolved both houses of Parliament, at a time when the Labor Government was deeply unpopular.
▸ The Liberal Country Party coalition won the election with majorities in both houses, and governed for the next 8 years.
Virtually all the features which make our Constitution democratic come from the conventions, rather than the written provisions. In 1975, all the most important conventions were breached, and the parties in breach were rewarded with Government. The written Constitution was shown to have overriding force.
The written Constitution is not democratic. While the convention concerning casual Senate vacancies was written into the Constitution in 1977 - see s.15 - it remains the position that a Prime Minister who has majority support in the House of Representatives can be replaced by an unelected Governor-General with a person who does not have that support. The power to govern is vested in the Queen and Governor-General - see s.61 - and while some powers may only be exercised by the Governor-General “acting with the advice” of his or her Ministers - see ss.63, 64, 72 - nothing requires the Governor-General to follow the Ministers’ advice. Ministers not prepared to advise the Governor-General to do what he or she wants done could be dismissed - s.62. No law can be passed, and no law can be administered, without the Governor-General’s agreement: see sections 58-62 of the Constitution. The Governor-General may also dissolve the House of Representatives whenever he or she wishes: s.5; and may stymie the procedure to resolve a deadlock between the House of Representatives and the Senate by declining to act under section 57.
There is no mechanism in the written Constitution by which the Governor-General can be held accountable for how these powers are exercised. If democratic conventions do not constrain the Crown, nothing does.
Only the written Constitution matters now, and under its provisions this country is closer to dictatorship than democracy.
* * * *
Many arguments have been advanced for maintaining the current Constitution despite what occurred in 1975. Some are considered in Appendix 3 and Appendix 4.
The challenge when considering 1975 is to stand back from our partisan political positions and examine what the crisis showed about the rules of the political game.
Regardless of party allegiance, it would be difficult for anyone examining what occurred in 1975 to disagree with two propositions:
1. The rules laid down in our Constitution as to who should rule, and under what circumstances, are quite unclear. Before an assessment can be made as to whether the rules meet whatever standards we expect, we have to know what the rules are.
In 1975, the House of Representatives had the power to support the Whitlam Government and to refuse to go to another election until its 3 year term had expired. The Senate had the power to defer consideration of the budget bills. The Governor-General had the power to select whomever he chose as Prime Minister, and to call an election of the House of Representatives whenever he chose. The Constitution contains no written provision stating which power should take precedence over the other powers.
So with everyone acting within their powers under the written law, the result from the Constitution - the purpose of which is to ensure stable Government - was a complete impasse and an imminent breakdown of Government. The Constitution failed. This is why it is called a constitutional crisis, rather than a mere political dispute or crisis.
During and since 1975, debate raged over whether the rules were followed, because there was no consensus on what the rules were. Some were written, some were not. What was the status of the unwritten rules? Numerous statements can be found in constitutional law text books that the unwritten conventions are not laws and cannot be enforced, but that they are in a sense more important than laws. Not surprisingly, other writers take the view that conventions which are this important should control how the letter of the law is applied. To have two sets of rules, one written, and one unwritten, is asking for trouble. One clear set of enforceable rules is required.
2. The rules we select should meet certain standards. The rules should be based on principles such as democracy, stability and fairness.
The dismissal of the Whitlam Government which had twice been elected and held a firm majority in the House of Representatives was a clear breach of democracy. Whether our Governments are accountable not just to the lower house, but also to the upper house, was a matter debated at length in the Constitutional Conventions of the 1890s, and our ‘founding fathers’ acknowledged that they had not fully resolved the issue. Kerr and the Liberals showed that the Government was responsible to both Houses. The problem is the House represents the most recently expressed will of the people. The Senate does not - see Appendix 2.
Making Governments responsible to both Houses is not just undemocratic - it detracts from the stability of the system. Governments have to make decisions for the long term, as well as the short term. If they can be removed through the combined impact of Senate obstruction and Vice-Regal intervention we will have more frequent elections and less stability. Does more elections mean more democracy? Not if the representatives just elected do not have a chance to do their jobs.
Perhaps the most surprising aspect of the 1975 crisis is that subsequently the people have been denied any opportunity to build a better system. There were constitutional conferences in the immediate aftermath, but the political players of the day stuck to their partisan positions. The only change was that the Fraser Government, having won office through the breach of the convention concerning casual Senate vacancies, supported a referendum to fix that problem in 1977. It was carried with Labor support. Since then, nothing.
It is simply outrageous that Australians have never been offered the opportunity to vote on a better system, one which would prevent a crisis like 1975 recurring
Australians should have the opportunity to change to the more democratic system set out in the Advancing Democracy model. Regardless of the outcome, the referendum would clarify which rules would apply in a future crisis. Australia could reject the proposal, and confirm that the unprincipled, undemocratic conduct we saw in 1975 is acceptable. We can then look forward to it being repeated. Or we could choose to prevent future crises by adopting clear rules based on democratic principles.
Go to next chapter |
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