[GandalfTheGrey]

The Dismissal: an uncorrected throwback to tyranny

The Dismissal remains unfinished business, writes Mungo MacCallum, who covered the dramatic events of 1975 from the Canberra press gallery.

Thirty-seven years on, the events of November 11, 1975, still have a deep political resonance for many Australians.

For those who were there at the time, the Dismissal was a pivotal event, up there with Neil Armstrong's moon walk, the assassinations of the Kennedy brothers and Martin Luther King, and the Tied test of 1961.

And even for those not yet born at the time (half of the present population), it remains a strange and puzzling moment in political history: how did it happen, and, more importantly, could it happen again?

So it is hardly surprising that the revelations of the involvement of the third man in the conspiracy - High Court judge and later chief justice Sir Anthony Mason - reignited a new wave of controversy, much of which has revived old animosities and provoked new ones.

It is now generally (although by no means universally) accepted that the viceroy had, and has, the power to dismiss an elected government. This may or may not have been the intention of the writers of our constitution, who left the notion and extent of the Governor-General's reserve powers almost completely undefined, but it happened, and therefore it can happen again.

The question is not one of law, but of judgement and morals: was Sir John Kerr's decision the right one in the circumstances? And to answer it, you need to know the circumstances and background. And I reckon I do: I was right there in the thick of it.

Kerr sacked Gough Whitlam's government because the opposition-controlled Senate was refusing to vote on the supply bills. It is important to note that this was not a denial of supply, simply a blockage. And it only came about because two state premiers, Tom Lewis in New South Wales and then crucially Sir Joh Bjelke-Petersen in Queensland, had committed unheard of breaches of convention by appointing non-Labor replacements to take the seats of deceased Labor senators. Thus the politics which allowed Malcolm Fraser to bring the deadlock about were irrevocably tainted from the start, a fact which Kerr should have taken into consideration.

The trigger Fraser used to force the situation was Whitlam's sacking of a second senior minister, Rex Connor, for the high crime of having misled the parliament; Jim Cairns had already gone. Fraser described this as "an extraordinary and reprehensible circumstance"; extraordinary, certainly, but reprehensible? Looked at another way, Whitlam was enforcing the highest parliamentary standards, when it would have been both simpler and more expedient to brazen it out.

Fraser's decision was itself another monumental breach of convention, a fact which caused considerable angst within sections of his own party, including a small but vital number of the senators needed to implement his edict. This became crucial as time went on and the crisis deepened.

Kerr later claimed that his hand was forced by the timetable: to get a general election before Christmas, he had to act when he did. But the feeling around Parliament House as the fateful Remembrance Day drew near was that some of those senators were about to crack. This has since been denied, to my mind unconvincingly; but there is no doubt it was the dominant belief on both sides of politics at the time. Kerr, at the very least, was guilty of premature ejection.

As we now know, he was encouraged by the chief justice, Sir Garfield Barwick, who breached the very important doctrine of the separation of powers by taking a partisan role. Whitlam had already refused Kerr's request to seek Barwick's opinion; Whitlam's view was that the Queen's representative must rely on the advice of his ministers, the essence of the Westminster tradition of constitutional rule. This immediately opened another door for Kerr: he could have summoned Fraser and told him that he was bound by Whitlam's advice, so the only solution was for Fraser to back down.

But Kerr, as we now know, ignored Whitlam's instruction and went not only to Barwick, a sworn political and personal enemy to Whitlam, but also to Mason, then believed to be apolitical. Mason also breached convention by offering Kerr advice and even preparing a document of dismissal, which Kerr ended up not using; but he says he took a more neutral stance by telling Kerr he should at least warn Whitlam of his thinking and give him a last chance to call an election himself, as prime minister.

If Whitlam had done so, he would not only have avoided the obloquy of dismissal but would have regained the high ground: the polls showed that a majority of voters blamed Fraser for bringing on the crisis and would have given Whitlam credit for resolving it. As it was, they knew Whitlam must have done something terrible, even if they could not say what it was. Otherwise, why would Kerr have sacked him?

But Kerr ignored Mason's advice and ambushed Whitlam with his famous king hit. In retrospect, it is clear that what really mattered to him was not ending the stand-off, but asserting his dominance over the prime minister who had appointed him to the job. Whitlam, stunned, returned to the Lodge and ate a large steak. By the time he got back to Parliament House and started organising, supply had been passed and the election called. It was, Fraser declared, all over.

But it wasn't; not quite. Kerr had not got around to proroguing Parliament, so the house was still sitting. It quickly passed a motion of no-confidence in Fraser and ordered the speaker, Gordon Scholes, to tell Kerr to recommission Whitlam as prime minister. But Kerr, on Mason's advice, refused to receive to the speaker and shut the Parliament down.

Of all the breaches of convention, this was the gravest and most profound. In the Australian system, Parliament is supreme; while it is sitting, it is master of its own destiny. Kerr's summary rejection of its resolution was unprecedented and unjustifiable. It was effectively a reassertion of the divine right of kings, a throwback to a tyranny which ended with the execution of King Charles I. But in the upheavals of the times, it went unremarked and uncorrected.

There is much about the Dismissal that remains unfinished business, which is why it is still memorable and still relevant. Because it could happen again.

http://www.abc.net.au/unleashed/4239864.html

While old Mungo is obviously biased towards a certain viewpoint, he raises important issues about our constitution and the potentially devastating use and abuse of convention.

It should be emphasised that convention plays a critical role in the functionality of our system of government. It is not just some traditional niceties, our system really does depend on them in a literal way. This mainly stems from the fact that most of the British "constitution" is mostly just a set of conventions - very little is actually written down. The dismissal saw not just one convention ignored, but several - starting from the appointment of coalition senators by coalition premiers after the sitting (labor) senators had passed away, to the Governor General seeking the advise of partisan actors, and most importantly, the GG ignoring the advise of the PM of the day.

We take it for granted today that the GG will unquestioningly always act on the advise of the government of the day. Yet in this case the GG did not. We can tell ourselves it will never happen again, but there really isn't any good reason to believe that it can't. We have set up a system that is so dependant on convention, yet there is nothing really to ensure that convention is followed.

Thoughts?

Also, another interesting insight into how our actual head of state (the Queen) can, and may well have, through her intervention influenced the running of our system of government:
http://www.abc.net.au/news/2012-08-31/b ... al/4236150

[Notorious B.i.G.]

It is an unfortunate side effect of having a written and un-written governing structure.
Kerr can sleep tight knowing that he followed exactly to the letter the written rule.
Question playing out in my mind thinking about it, is do we go the US way where everything is written down in respect of governing powers, or do we go the way of the UK where little if anything is written down.
I wouldn’t like to see a more US styled system of governance. It is too restrictive and when people play it to the letter of the law, it can result in political gridlock.

Does the Australian constitution need a re-vamp, make some of the powers of the GG more ambiguous? Quite frankly, I don’t see the point of the GG anyway, nor a President if we were to become a Republic (in the model of the Republic that went to referendum in 2000).

I agree, there is nothing we can do to ensure that conventions are followed. Other than appoint a GG who will more than likely play within the rules. I mean, were there signs that Kerr was a bit of a ‘maverick’. Past experiences in his life where he did his own thing against the common perception? Perhaps the Government should appoint more docile and malleable GG’s, who will follow convention.

I don’t think the Queen will ever intervene in the running of governments in any commonwealth country. She didn’t in PNG early this year, which was probably the best case for her to act. Nor with respect to Fiji.