Australian constitutional crisis of 1975

The Australian constitutional crisis of 1975 is generally regarded as the most significant domestic political and constitutional crisis in Australia's history. The crisis began when the upper house of the Australian Federal Parliament, the Senate, in which the opposition coalition had a majority, blocked a bill that appropriated funds for the payment of government expenditure, with the goal of forcing the Government to call a lower-house election. Such action was unprecedented in Australian Federal politics, and has not been attempted since. The government, led by Labor's Gough Whitlam, ignored such calls, and attempted to pressure Liberal senators to support the bill while also exploring alternative means to fund government expenditure. The impasse continued for some weeks, with the threat of the government being unable to meet its financial obligations hanging over the country. The crisis was resolved on the 11th of November by the Governor-General, Sir John Kerr dismissing the Labor Prime Minister Gough Whitlam and appointing his Liberal opponent Malcolm Fraser as caretaker Prime Minister having secured an undertaking from the latter that he would seek a dissolution of both Lower House and Senate thus precipitating a general election.

Background

While quite popular in its first term for pulling troops out of Vietnam and for several social reforms including the creation of the Medicare system, the Whitlam government's second term -- which began after the election of May 18, 1974 -- had been plagued by several financial scandals. In this context, two conservative State Premiers, when faced with casual vacancies for those states in the Federal Senate, replaced, in one case a retiring Labor Senator, and in the other, a deceased Labor Senator with Senators who opposed the federal government. These actions are generally regarded as going against a strong convention under which retiring Senators are replaced with those of the party of the retiring Senator's choosing. Although the appointee from Queensland was challenged in the High Court and was not sitting at the time of the crisis, the former ALP senator's vote was deducted from Labor's total.

Quoting financial mismanagement as a pretext, the Opposition refused to vote on the passage of the government's budget through the Upper House, under the assumption that the government was obliged to resign and call an election. While in most constitutional democracies, the power to block supply is reserved for the popularly elected lower house only, Australia's constitution (drafted by elected conventions through the 1890's), which was enacted in 1901 and so pre-dates Britain's Parliament Act, 1911, which enshrined this principle of the supremacy of the lower house in the British constitution, allows both houses to withdraw supply. Whether a constitution allows both houses in a parliament, or only the lower house, to withdraw supply, the results of having it withdrawn are in theory the same: a prime minister in a parliamentary democracy is expected to either:

  • Resign, allowing someone else to form a government and get supply;
  • Request a parliamentary dissolution; or
  • Get both Houses to agree on a budget within 48 hours (24 if possible).

Australia's constitution combines to a unique degree both a written text and unwritten conventions. Though the Senate was in theory entitled to block supply, long standing convention suggested it shouldn't. However, such conventions rely on a form of gentleman's agreement. In Britain, the House of Lords broke its convention by blocking Lloyd George's budget on the basis that he as Chancellor of the Exchequer was breaking his part of the convention by proposing a massive and fundamental change in the taxation system, so massive the House of Lords claimed it had the right to break its part of the convention by blocking the budget. In Australia too, similar arguments raged. Allegations were made that Whitlam had openly flouted conventions. His slipshod approach to decision-taking (for example, having decisions taken at informal meetings of his cabinet, rather than at formal meetings of the Executive Council, under the chairmanship of the Governor-General) had already enraged Governor-General Sir John Kerr, a former judge. Whitlam's apparent flexibility with traditional rules and regulations was used as the excuse for the Senate to break its convention, go back to the literal text of the constitution, and use its power to block supply.

The Dismissal

Kerr, however, was left in a constitutional minefield. Constitutionally, he had every right to expect a prime minister who had lost supply to either resign or seek a parliamentary dissolution. His position was complicated by the fact that to keep the measure on the floor of the Senate Supply had not been denied, rather the vote was being constantly postponed. But what could be done if the Prime Minister refused to conform to either of these conventions? Furthermore, if part of the crisis was caused by the fact that the Australian Senate, unusually because of the age of the constitution could withdraw supply, another problem arose also. Most heads of state or governors-general in such a state could and would summon a prime minister to their residence, explain the constitutional situation and demand the required constitutional action, usually while putting on official record their displeasure at the prime minister's behaviour, maybe even a formal transcript record of their conversation. But Kerr lacked the most basic requirement a head of state needs in such crises, security of tenure. In theory, Whitlam could simply advise the Queen of Australia to dismiss her Governor-General. It would have been an exceptionally foolish act from Whitlam, but it, like the Senate's unprecedented action, was constitutionally possible. To add a final twist, Kerr was no politician. If Whitlam showed political skill but constitutional ignorance, Kerr showed the opposite, constitutional skill but blind ignorance of the political results that might flow from his actions, and how they could potentially turn the crisis from being focused on Whitlam to focused on Sir
John Kerr, Her Majesty's Representative.

Kerr met with the Opposition leader, Malcolm Fraser, behind the back of the Prime Minister, always a risky move for a head of state, for it risks creating the impression, however wrong, that the head of state is part of an opposition plot to dismiss the government. Allegedly Mr Fraser argued that the Senate represented the displeasure of the Australian people with the government's management; that there was a practical impasse for the government; and that if the Governor-General did not act decisively then the Prime Minister could without notice dismiss the Governor-General and maintain the deadlock indefinitely.

Faced with a prime minister who was neither resigning nor seeking a dissolution, even after losing supply, on November 11, 1975, the Governor-General of Australia dismissed Prime Minister Whitlam and appointed the Opposition Leader, Malcolm Fraser, as the caretaker Prime Minister, on the basis that Fraser had promised to immediately advise the Governor-General to dissolve parliament and call a general election. Fraser did so, and the Governor-General called a general election on December 13, 1975. Although some people expected a major backlash against Fraser in favour of Whitlam (who had launched his campaign by calling upon his supporters to 'maintain the rage'), the Australian Labor Party (ALP) instead suffered its greatest loss (losing 7.4% of its previous vote at the 1974 election) against Malcolm Fraser's Liberal Party of Australia and its National Country Party allies.

Though it is debatable whether the ALP's 1974 - 1975 management was sufficient justification for the opposition to break with tradition in blocking supply, it does provide a practical case study for comparison of convention based systems (or even partly convention, partly written constitution-based systems) with more rigid systems such as that used in the United States of America where the 2000 election was largely dependent upon technicality rather than any popular or practical issues.

The crisis is significant in analyzing Westminster systems for the large number of conventions that were broken. Unlike the United States, where legislative-executive relations are spelled out in the constitution, these matters are not explicitly stated in the Australian Constitution or any other legislation. Under normal circumstances, behaviour is determined by convention and custom. In the United Kingdom Constitution the issue of the power of the Upper House to block supply was encountered, and the power removed from the House of Lords, in the course of the constitutional crisis of 1909 - 1911 (see Parliament Act). But this was all achieved by first going to the country in a general election to get a mandate to change the system. This fact is claimed by some adherents of the Australian Liberal Party to legitimise its position in the crisis: the argument being that an elected Australian Senate implicitly inherited the powers and licence of the British House of Lords as of 1901 (the date of foundation of the Commonwealth of Australia) and by some Labor supporters to condemn it: by arguing that the existence of a power to block supply was an oversight since corrected. The Australian crisis illustrates how unwritten conventions can be overridden during a crisis and forms an argument for their codification (though one that is not accepted by many prominent Australian constitutional scholars).

It is notable that although the crisis was described as Australia's most dramatic political event since Federation in 1901, it caused no disruption in the services of government; it saw the parties remaining committed to the political and constitutional process by contesting the subsequent election and accepting the result but it did lead to a constitutional change passed by referendum in 1977 to require that State Parliaments appoint a member of the same party to replace a retiring/deceased Senator.

In the years afterwards, some Australian republicans have used the crisis as an argument for change, on the basis that Australia's current constitution is flawed over (a) the upper house and supply and (b) the lack of security of tenure of the de facto head of state in dealing with a crisis.

Fraser and Whitlam have not kept up any enmity and are reconciled to the point where they have, on occasion, spoken jointly on political issues such as the referendum of 1999 as to whether Australia should become a republic. It is noteworthy that the convention responsible for deciding on the Constitutional Amendments to be included in the referendum of 1988 rejected an amendment stripping the Senate of the power to block supply. In recent years the balance of power in the Australian Senate has been held by the Australian Democrats thus reducing the controversy associated with this issue.

Journalist Paul Kelly has produced a series of books generally regarded as forming the most comprehensive account of the crisis. His most recent is entitled November 1975.

A dramatised version of events exists in the form of a television mini series entitled "The Dismissal". Screened in 1983, amongst those with directing credits are George Miller and Phillip Noyce. Cinematography by Dean Semler.


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