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Appendix 3 - Rebutting The Apologists for 1975 |
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Appendix 3 - Rebutting The Apologists for 1975
This appendix provides an outline of the range of reasons offered for maintaining our Constitution in its current form notwithstanding the defects revealed by the blocking of supply and the dismissal of the Whitlam Government.
The arguments fall into two broad categories.
The Justification Arguments
The first category are justifications for the existence of the written powers available to the Senate and Governor-General, based on the supposed necessity for protection against an incompetent Government which is acting against the national interest. One such argument - that a Government without supply must be dismissed to prevent widespread illegality - deserves more detailed treatment, which appears in Appendix 4. When closely examined, all the justifications are no more than rationalisations, designed to obscure the reality that in 1975 partisan political advantage was placed ahead of democratic principle.
▸ The Constitution simply does not mention any limitations on the powers of the Senate and the Governor-General. They are not stated to be available only when the national interest is endangered, or certain criteria are met. If they are not limited by unwritten democratic conventions, the powers are unlimited.
▸ Deciding that a Government deserves removal is an inherently subjective, partisan decision. An impartial, objective determination as to whether the criterion for removal has been met is not possible. This is why the power should only be vested in the people at an election, and between elections in their representatives in the democratically elected lower House.
▸ Whoever makes the decision that a Government should be removed is overriding a prior decision by the people. Under the convention that the majority in the House of Representatives determines who forms the Government, the decision about the competence or otherwise of the Government is made by the people’s representatives - those elected on a basis that most closely resembles one person, one vote and one vote, one value. To justify a blocking of supply and dismissal of the Government is to assert that the decision of the less democratically elected Senate and unelected Governor-General can override the decision of the more democratically elected House. The only senators who would be prepared to block supply would be those from the opposing political parties which lost the previous election. Accordingly this justification asserts that the minority may control the extent to which the majority can govern; that the election winner can only govern with the permission of the election loser.
▸ The powers vested in the Governor-General were central to what occurred in 1975. Those who claim the role of that position is to ‘protect the national interest’ ignore the fact that the Governor-General is effectively appointed by the Prime Minister. A Prime Minister wishing to protect himself or herself from dismissal by the Governor-General should appoint his or her spouse or a close supporter to the position. If the protection can be so easily circumvented, the protection is illusory.
A variation on the justification theme is the assertion that all the Governor-General did was refer a dispute between two elected Houses to the people, given that the Houses could not resolve the dispute between themselves. Sir John Kerr himself used this argument.
In legal terms, the argument is simply not true. The dispute between the Senate and the House of Representatives was whether the budget bills should become law. Kerr commissioned Mr Fraser to form Government on condition that he would get the bills passed. The bills were passed as soon as Fraser was appointed. At that point, the dispute between the Houses was resolved. The broader, political dispute between the Senate and the House was whether the House should submit to an election immediately, halfway through its term, or whether it should serve out its term. By calling an election, Kerr decided this issue in favour of the Senate. In no sense did he ‘refer the dispute to the people’. They did not vote on whether there should be a new election. He required them to have a new election.
The most favourable argument which can be advanced for Kerr’s actions is that it is legitimate to require a Government to go to an election where it is apparent the electorate might no longer support the Government - that is, that it has changed its mind (which in 1975 it had). The justification is sometimes reduced to the phrase that ‘There’s nothing undemocratic about another election’.
Actually there can be undemocratic aspects to an unexpected election.
▸ Firstly, the new election cuts short the term of the Parliament previously elected. The Constitution sets a three year term for the House of Representatives, and voters choose candidates on the understanding that their decision will last for three years. If the elected representatives are denied sufficient time to implement the policies, democracy is denied. In 1975, it was not just the Labor Government which was cheated out of half of its term of office, but also the voters who supported it in 1974.
▸ Secondly, an election can be undemocratic if the contest is not a fair contest on a level playing field. Governments must make unpopular decisions from time to time. They attempt to time their unpopular decisions to take account of the election cycle, so that they will be able to demonstrate by the time of the next election that some gain has come from whatever pain the voters have suffered from its policies. While implementing difficult and unpopular policies, they may pay less attention to winning support. To force a Government to unexpectedly depart from this election cycle places the Government at a significant tactical disadvantage. The same argument applies (though with less force) against Prime Ministers calling early elections to the disadvantage of the Opposition.
▸ Thirdly, the representatives are chosen by the people. But it is not the people who have the right to cut short the Parliamentary term. It is someone else - an unelected person who has no contact with most voters - who presumes the right to make a judgment that the peoples’ representatives should not be allowed to complete their full term.
Regardless of whether a further election is regarded as democratic or not, there is no way of setting an objective criterion as to when the power to force the Government to a new election should be exercised. In practice, to allow a Governor-General to retain this power will result in random, partisan interventions in the political process by an unelected person to the disadvantage of those who won the election.
The ‘Pretend it Didn’t Happen’ Arguments
The second category of arguments for retaining the Constitution in its present form are those which downplay the significance of 1975.
Some claim the circumstances were unique and quite unlikely to arise again in the future. Such analyses misunderstand the underlying causes of the dispute. While economic difficulties and political developments were the immediate catalyst, the key factor which lead to the dismissal was a Constitution which contains two sets of rules - written and unwritten - and no provision for resolving which rules take priority in which circumstances. That gave the losing parties in the 1974 election the means to disrupt and obstruct the winning party. Since proportional representation was adopted for Senate elections in 1949, the Government has lacked a Senate majority in the following periods: between 1949-1951, 1967-1972, 1972-1975, 1980-1982, 1983-1996, 1996-2004 and 2007-2012 and continuing. That equals 37 out of 62 years, or nearly 60% of the time. This pattern is likely to continue.
What is noticeable about these periods when the Government lacks a Senate majority is that while some have resulted in political turmoil others have been relatively harmonious and productive. So it cannot be said that the existence of the Senate or its different method of election necessarily provokes a constitutional crisis.
What created the 1975 crisis was the dichotomy between the written and unwritten rules in the Constitution. One side saw advantage in playing by the written rules, while the other played by the unwritten rules. There is a wide range of potential disputes where that may occur in the future. Several are outlined in Appendix 1.
Another apologist argument used to downplay 1975 is the assertion that Kerr made a mistake which is unlikely to be repeated. Certainly when he later visited the Queen stories were circulated that she told him that she would never have done what he did. Such stories are unlikely to be mere rumours. Buckingham Palace has a way of making things known without issuing a media release. Few writers on constitutional law are prepared to justify his actions. So anyone prepared to repeat his performance can expect criticism. But so what? Those who relish the exercise of power do not mind criticism. The prospect of disapproval is a woefully weak sanction to prevent misconduct.
One of the enduring defects of absolute monarchy and other dictatorships is that the quality of governance depends on the character of one individual. To permit the Governor-General, who is not elected, the power to dismiss a Government which has been elected makes democracy hostage to the character of the Governor-General. We could only say that no Governor-General would repeat Kerr’s mistakes if we could guarantee that no future Governor-General will have delusions of grandeur, or be intoxicated by power, or be a partisan figure, or have a misguided desire to be the saviour of the nation at a time of apparent crisis.
Any attempt to disregard the events of 1975 as an aberration is a simple refusal to accept reality. The reality is that conventions based on the democratic principle of majority rule were breached, and those who followed the undemocratic written rules were richly rewarded. There can be no greater encouragement to rely purely on the written rules than this.
Go to next Appendix |
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Appendix 3 - Rebutting The Apologists for 1975
This appendix provides an outline of the range of reasons offered for maintaining our Constitution in its current form notwithstanding the defects revealed by the blocking of supply and the dismissal of the Whitlam Government.
The arguments fall into two broad categories.
The Justification Arguments
The first category are justifications for the existence of the written powers available to the Senate and Governor-General, based on the supposed necessity for protection against an incompetent Government which is acting against the national interest. One such argument - that a Government without supply must be dismissed to prevent widespread illegality - deserves more detailed treatment, which appears in Appendix 4. When closely examined, all the justifications are no more than rationalisations, designed to obscure the reality that in 1975 partisan political advantage was placed ahead of democratic principle.
▸ The Constitution simply does not mention any limitations on the powers of the Senate and the Governor-General. They are not stated to be available only when the national interest is endangered, or certain criteria are met. If they are not limited by unwritten democratic conventions, the powers are unlimited.
▸ Deciding that a Government deserves removal is an inherently subjective, partisan decision. An impartial, objective determination as to whether the criterion for removal has been met is not possible. This is why the power should only be vested in the people at an election, and between elections in their representatives in the democratically elected lower House.
▸ Whoever makes the decision that a Government should be removed is overriding a prior decision by the people. Under the convention that the majority in the House of Representatives determines who forms the Government, the decision about the competence or otherwise of the Government is made by the people’s representatives - those elected on a basis that most closely resembles one person, one vote and one vote, one value. To justify a blocking of supply and dismissal of the Government is to assert that the decision of the less democratically elected Senate and unelected Governor-General can override the decision of the more democratically elected House. The only senators who would be prepared to block supply would be those from the opposing political parties which lost the previous election. Accordingly this justification asserts that the minority may control the extent to which the majority can govern; that the election winner can only govern with the permission of the election loser.
▸ The powers vested in the Governor-General were central to what occurred in 1975. Those who claim the role of that position is to ‘protect the national interest’ ignore the fact that the Governor-General is effectively appointed by the Prime Minister. A Prime Minister wishing to protect himself or herself from dismissal by the Governor-General should appoint his or her spouse or a close supporter to the position. If the protection can be so easily circumvented, the protection is illusory.
A variation on the justification theme is the assertion that all the Governor-General did was refer a dispute between two elected Houses to the people, given that the Houses could not resolve the dispute between themselves. Sir John Kerr himself used this argument.
In legal terms, the argument is simply not true. The dispute between the Senate and the House of Representatives was whether the budget bills should become law. Kerr commissioned Mr Fraser to form Government on condition that he would get the bills passed. The bills were passed as soon as Fraser was appointed. At that point, the dispute between the Houses was resolved. The broader, political dispute between the Senate and the House was whether the House should submit to an election immediately, halfway through its term, or whether it should serve out its term. By calling an election, Kerr decided this issue in favour of the Senate. In no sense did he ‘refer the dispute to the people’. They did not vote on whether there should be a new election. He required them to have a new election.
The most favourable argument which can be advanced for Kerr’s actions is that it is legitimate to require a Government to go to an election where it is apparent the electorate might no longer support the Government - that is, that it has changed its mind (which in 1975 it had). The justification is sometimes reduced to the phrase that ‘There’s nothing undemocratic about another election’.
Actually there can be undemocratic aspects to an unexpected election.
▸ Firstly, the new election cuts short the term of the Parliament previously elected. The Constitution sets a three year term for the House of Representatives, and voters choose candidates on the understanding that their decision will last for three years. If the elected representatives are denied sufficient time to implement the policies, democracy is denied. In 1975, it was not just the Labor Government which was cheated out of half of its term of office, but also the voters who supported it in 1974.
▸ Secondly, an election can be undemocratic if the contest is not a fair contest on a level playing field. Governments must make unpopular decisions from time to time. They attempt to time their unpopular decisions to take account of the election cycle, so that they will be able to demonstrate by the time of the next election that some gain has come from whatever pain the voters have suffered from its policies. While implementing difficult and unpopular policies, they may pay less attention to winning support. To force a Government to unexpectedly depart from this election cycle places the Government at a significant tactical disadvantage. The same argument applies (though with less force) against Prime Ministers calling early elections to the disadvantage of the Opposition.
▸ Thirdly, the representatives are chosen by the people. But it is not the people who have the right to cut short the Parliamentary term. It is someone else - an unelected person who has no contact with most voters - who presumes the right to make a judgment that the peoples’ representatives should not be allowed to complete their full term.
Regardless of whether a further election is regarded as democratic or not, there is no way of setting an objective criterion as to when the power to force the Government to a new election should be exercised. In practice, to allow a Governor-General to retain this power will result in random, partisan interventions in the political process by an unelected person to the disadvantage of those who won the election.
The ‘Pretend it Didn’t Happen’ Arguments
The second category of arguments for retaining the Constitution in its present form are those which downplay the significance of 1975.
Some claim the circumstances were unique and quite unlikely to arise again in the future. Such analyses misunderstand the underlying causes of the dispute. While economic difficulties and political developments were the immediate catalyst, the key factor which lead to the dismissal was a Constitution which contains two sets of rules - written and unwritten - and no provision for resolving which rules take priority in which circumstances. That gave the losing parties in the 1974 election the means to disrupt and obstruct the winning party. Since proportional representation was adopted for Senate elections in 1949, the Government has lacked a Senate majority in the following periods: between 1949-1951, 1967-1972, 1972-1975, 1980-1982, 1983-1996, 1996-2004 and 2007-2012 and continuing. That equals 37 out of 62 years, or nearly 60% of the time. This pattern is likely to continue.
What is noticeable about these periods when the Government lacks a Senate majority is that while some have resulted in political turmoil others have been relatively harmonious and productive. So it cannot be said that the existence of the Senate or its different method of election necessarily provokes a constitutional crisis.
What created the 1975 crisis was the dichotomy between the written and unwritten rules in the Constitution. One side saw advantage in playing by the written rules, while the other played by the unwritten rules. There is a wide range of potential disputes where that may occur in the future. Several are outlined in Appendix 1.
Another apologist argument used to downplay 1975 is the assertion that Kerr made a mistake which is unlikely to be repeated. Certainly when he later visited the Queen stories were circulated that she told him that she would never have done what he did. Such stories are unlikely to be mere rumours. Buckingham Palace has a way of making things known without issuing a media release. Few writers on constitutional law are prepared to justify his actions. So anyone prepared to repeat his performance can expect criticism. But so what? Those who relish the exercise of power do not mind criticism. The prospect of disapproval is a woefully weak sanction to prevent misconduct.
One of the enduring defects of absolute monarchy and other dictatorships is that the quality of governance depends on the character of one individual. To permit the Governor-General, who is not elected, the power to dismiss a Government which has been elected makes democracy hostage to the character of the Governor-General. We could only say that no Governor-General would repeat Kerr’s mistakes if we could guarantee that no future Governor-General will have delusions of grandeur, or be intoxicated by power, or be a partisan figure, or have a misguided desire to be the saviour of the nation at a time of apparent crisis.
Any attempt to disregard the events of 1975 as an aberration is a simple refusal to accept reality. The reality is that conventions based on the democratic principle of majority rule were breached, and those who followed the undemocratic written rules were richly rewarded. There can be no greater encouragement to rely purely on the written rules than this.
Go to next Appendix |
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