The 1975 crisis, a republic and Andrew Mountbatten-Windsor
The past month marked two events of relevance to the Australian Constitution which might at first seem unconnected: the 50th anniversary of the 1975 dismissal crisis and the stripping of titles from the former Prince – now Mr – Andrew Mountbatten-Windsor.
Commentary on 1975 from political figures was predictably partisan. Anthony Albanese called Whitlam’s dismissal a ‘political ambush.’ Paul Keating went further and called it a ‘coup.’ Both claims are nonsense – Kerr’s dismissal of Whitlam was lawful according to the text of the Constitution. Unfortunately, neither Albanese nor Keating addressed structural flaws in the Constitution which were root cause of the crisis.
Understanding the Dismissal
An understanding of the dismissal depends on an appreciation of the difference between constitutional law, which consists of the text of the Constitution and case law interpreting it, and constitutional conventions which are political rules regarded as binding but which, precisely because they are convention rather than law, are not legally enforceable.
The Constitution was drafted on the assumption that conventions regulating relations between the crown and parliament in the United Kingdom would apply in Australia. So whereas s 64 of the Constitution confers on the Governor-General the power to appoint ministers, this was understood to be subject to the conventions governing responsible government, which require the Governor-General to appoint as prime minister whoever has the support of a majority in the House of Representatives and to follow the advice of that person as to who to appoint as ministers.
The existence of these conventions means that the text of the Constitution gives a misleading impression of how the constitutional system actually operates, but the importance of the conventions does not elevate them to the status of law. In cases of conflict, the text of the Constitution prevails.
The dismissal was precipitated by the Coalition majority in the Senate refusing to pass the Whitlam government’s taxation and expenditure – or supply – legislation. Labor figures have argued that there was a convention that the Senate would not block supply. But s 53 of the Constitution gives the Senate the clear right to do this – one of the many messy compromises that emerged from the constitutional conventions of the late 19th century.
The obvious incompatibility between a government having a majority in the House of Representatives yet being unable to function if denied supply by the Senate was evident even then – Alfred Deakin noting that s 53 created ‘on the one side an irresistible force and on the other an immovable object.’
Given that the government’s authority to spend money would have expired within three weeks, the choice facing Kerr was either to wait until the government acted unlawfully or resolve the impasse by exercising the powers he had under the Constitution to dismiss the prime minister under s 64 and to dissolve parliament under s 5.
Did the dismissal breach convention, given that Whitlam had a majority in the House of Representatives? Although a government is entitled to hold office if it has a majority in the House of Representatives, the underlying reason why that entitlement exists is because its majority enables it to govern. A government that is unable to obtain supply is not able to govern, and thus ought to resign – or be dismissed if it does not resign. So the dismissal was not only lawful, it was also arguably consistent with convention.
50 Years On
In the 50 years since the dismissal, nothing has been done to remedy the flaws in the Constitution that gave rise to it. Energy has been absorbed by bitter and sterile arguments between the political actors instead of being directed towards remedying the root causes of the crisis – the incompatibility between s 53 and responsible government and the disjuncture between law and convention that led to disputes relating to the powers of the Governor-General. The consequence is that here is nothing to prevent the 1975 crisis recurring today.
The s 53 problem could be remedied either by removing the power of the Senate to block supply or reducing it to a power to delay. Codification of the powers of the Governor-General, including the circumstances in which they may be exercised, would mean that what the Constitution said would correspond to how it worked, eliminating the controversy that arose in 1975.
Codification would be a good in itself, but it would have particular impact on the debate on an Australian republic. In passing it is worthwhile noting that abolishing the link with the crown would not necessarily mean having a president. We would not need to have anyone replace the King and Governor-General – the entire system could be self-executing, with the Constitution providing, for example, that parliament is dissolved and an election must be held in certain circumstances.
However, if we are to have a figurehead moving the levers of power, opinion polls over the past 30 years have consistently shown that, if there was a republic, voters would want that person to be an elected president. However, during the debate preceding the drafting of the 1999 referendum question, monarchists helped ensure that election by parliament rather than election by the people was the model chosen, raising the spectre of an elected president might act in breach of the conventions that applied to the office of Governor-General.
In response to the obvious counter-argument that these concerns would be dispelled by codifying the powers of the office, monarchists argued that codification was impossible or – contradictorily – that it was possible but would change the relationship of the courts with the other branches of government because the courts would have to adjudicate political questions, and because litigation would delay the resolution of constitutional crises.
The impossibility claim was patently untrue, as evidenced by the fact that, after gaining independence, numerous Commonwealth countries codified the conventions so as to prescribe in law the manner in which a Governor-General (in countries that retained a link with the crown), or a president (in countries that became republics), should exercise their powers.
These reforms meant that the circumstances in which a president or Governor-General could, for example, dismiss a government or dissolve parliament were prescribed by law. The same is true of Ireland which, while not a member of the Commonwealth, has a system of parliamentary government, a popularly-elected president whose powers are codified and which has just had its fifteenth presidential election since 1938. The reason the ACM could get away with its claim is that few voters grasped the difference between convention and law.
The claim relating to involvement of the courts in ‘political’ questions is puzzling. Every constitutional question that comes before the courts is ‘political’ in the sense that it determines the limits of the institutions of government, including parliament and the executive. A decision on whether a president had lawfully dismissed a prime minister would be no different.
The argument about delay is also without substance – courts in Australia and overseas are accustomed to deciding cases under urgency procedures. Most concerning is the view that appears to underlie this argument that there should be a law-free zone lying at the heart of the Constitution – something which is incompatible with the rule of law and the doctrine of constitutionalism.
The Andrew formerly known as Prince
Finally, to the Andrew formerly known as Prince. In so far as Australians for a Constitutional Monarchy (who have yet to update their charter to acknowledge the accession of Charles III) have enunciated a reason why Australia should have a monarch, it appears to be that the country needs a person to protect the interests of all Australians.
How Charles III does that, given his non-involvement in Australian politics, is not explained. It is also unclear why such a person should be someone who holds office by virtue of succeeding to the throne of the United Kingdom. If the hereditary nature of monarchy is its key attraction, could we not have an Australian royal family to whom the crown passes generation by generation?
But the hereditary nature of the office raises another question: What would the ACM have had to say if, but for an accident of birth, King Andrew, rather than King Charles, had become King of Australia? Would they have adulated him by reciting the 17th century poem they frequently used with reference to Elizabeth II, amending the words so as to read:
“There is a man sweet and kind,
Was never face so pleas’d my mind;
I did but see him passing by,
And yet I love him till I die?”
The insurmountable problem that monarchists face is that whereas voters can dispose of a president, that option does not exist in the case of a King. The anniversary of 1975 and l’affaire Andrew invite Australians to re-consider the questions of whether we need a figurehead to operate the levers of power whether the rules governing the exercise of the office should be put into law and, finally, why that person should be the monarch of the United Kingdom rather than someone Australians themselves have chosen.
Dr Bede Harris began his academic career at the University of Natal, Pietermaritzburg. He is now a Senior Lecturer and Law Discipline Head at the School of Business in the Faculty of Business, Justice and Behavioural Sciences at Charles Sturt University where his research focuses on Constitutional Law and Indigenous legal issues.
