The Dismissal, 50 years on
It wasn’t a “Constitutional crisis”
But some defenders of Fraser and Kerr conjure up ideas of sacred but unwritten constitutional conventions to justify that sneaky political ambush.
Many people refer to the events of 11 November 1975 as a “Constitutional crisis”, but that’s not a particularly informative term.
Albanese says it was not. To quote from his speech on November 10:
Make no mistake: November 11th 1975 was not a “constitutional crisis” – it was a partisan political ambush.
There was no real precedent – and no legitimate pretext.
He’s right: there is nothing in our Constitution suggesting that the legitimacy of government rests on the Senate’s passing appropriation bills.
A different view is provided by law Professor Rosalind Dixon interviewed on Radio National Breakfast. While she softly criticizes Governor-General Kerr for not having consulted with Whitlam, she defends his actions on that day:
I think he acted within the bounds of reasonable constitutional action.
But what does that mean when there is nothing in our Constitution stating that the Senate’s failure to pass appropriation requires the government to resign and requires the Governor-General to appoint someone else as Prime Minister?
It’s about the understanding of the term “constitution”, which can refer to our written Constitution spelt with a capital “C” and containing 128 specific sections, or it can refer to something more nebulous.
She refers to the “multi-dimensional nature of our constitution”:
It is both the text but it’s also a set of norms and conventions and how they are interpreted and how they interact.
That means that some of our practices stem from convention. One that seems to apply in all proper democracies is that the executive government can be claimed by the individual or party who has the confidence of the main parliamentary party. But where does passage of appropriation bills fit in?
In fact she overlooks the fact that Whitlam did manage to hold a vote of no confidence in Fraser. That is based on a convention that is surely stronger than the idea that a government that cannot get its appropriation bills through Parliament must resign.
Her reasoning is unconvincing.
Fifty years on from the Dismissal there seems to be a consensus that there would never be a repeat of Kerr’s specific actions. That is, the dismissal of a Prime Minister who has the confidence of the House of Representatives on the basis of some hitherto untested convention.
Imagine the reaction if Governor-General Hurley had sacked Morrison for breaking conventions on the appointment of ministers, appointed Albanese as Prime Minister, and called a double-dissolution election.
To quote former Defence Minister John Faulkner “The actions of John Kerr were utterly inappropriate, unprincipled, disingenuous, deceitful”.
The still unresolved question from 1975 relates to the authority of the Governor-General. As the recounts of the Dismissal remind is, Kerr was taking some advice from the official representatives of a foreign government: in fact the Constitution specifies the Governor-General’s subservience to a foreign monarch. In view of the heavy responsibility conferred by the Governor-General’s reserve powers, it is important that whoever holds that office does so with the authority of the Australian people. That can be resolved with a simple Constitutional amendment, formalizing a process for appointing the Governor-General.
The Coalition’s stubborn view
Even one of the Coalition’s few articulate MPs can do no more than to mount pathetic arguments in defence of what Fraser and Kerr did on 11 November 1975.
The Liberal Party may be flexible enough to abandon its previous commitment to net zero, but it seems to be determined to hang on to its rationalizations in defence of the actors in the Dismissal.
To those who take an analytic approach, the Dismissal is about the Constitution, political conventions, the legitimacy of governance processes and norms of fairness. To the Liberal Party, however, it’s about an opportunity taken to rid Australia of a usurper, a Prime Minister who was sitting where one of theirs should sit, as they had for 23 years.
When David Marr and the producers of Late Night Live asked the Liberal Party to explain their views on the Dismissal, they nominated Julian Leeser, one of the few people in their Parliamentary ranks who understands the complexities of public policy.
One may have expected Leeser to express some criticism of the main actors, particularly in view of the nature of his electorate (well-off and liberal), and his own extensive legal education.
He is one of only seven Liberals to hold a metropolitan electorate. His Berowra electorate, lying between Sydney’s prosperous northern suburbs and the Hawkesbury River, was once solid Liberal territory, but he holds it by only 1.6 percent against Labor. In fact it’s surprising that the final count in the May election came down to a Liberal-Labor tussle, because it has many characteristics of a typical Teal seat.
Leeser is not the typical Liberal Member of Parliament. As the grandson of a Jewish refugee from Nazi Germany he would be well aware that Hitler’s rise to power was through violating constitutional rules and conventions. He is therefore unlikely to hold the view that the party’s future lies in doing deals with the extreme right. In 2023 he resigned from the front bench of the Liberal Party to join the “Yes” campaign for the First Nations’ Voice to Parliament.
He has a law degree from the University of New South Wales and was an associate to the High Court Justice Ian Callinan. He spent a year as a Visiting Fellow at the Taubman Centre for State and Local Government at the Harvard’s John F Kennedy School of Government.
This is not the profile of a politician who will stick to a party’s speaking points, and who will never admit to any wrongdoing in the party.
But on Late Night Live he defended the main actors – Malcolm Fraser, Garfield Barwick and John Kerr – for their actions in the Dismissal: 50 years on, do modern Liberals still back Whitlam’s dismissal.
The 24-minute session is most-easily described not as a political argument, but as an adversarial argument between two lawyers – Marr and Leeser. Leeser comes across as the professional and unemotional defence lawyer, using every possible argument to defend his client, even though the case is hopeless.
If a listener takes the role of a juror – a layperson bound to assess the arguments on the basis of presented arguments and evidence – he or she will almost certainly go with Marr’s arguments, because he establishes a convincing case that Whitlam had the confidence of the House of Representatives and command over sufficient financial resources to continue to govern. Leeser, on the other side, fails to provide a convincing defence for the Governor-General’s refusal to be guided by the Prime Minister’s advice.
Leeser bases his argument on two conditions for executive government to have authority to govern. One is the confidence of the main parliamentary chamber. The other, which Leeser asserts, is the ability to secure “supply” – that is to pass the bills that appropriate the funds for government to continue to carry out its functions. Both are based on conventions: our Constitution gives no specific guidance on these matters. The former convention is in line with practices in democracies around the world, but the latter, concerning “supply”, is more contentious. After all, in the USA, although Congress denied executive government funding from October 1 to November 13, the Democrats didn’t claim that this denial meant the Trump government had lost office. Leeser and Marr agree that Labor has at times threatened to block supply, but that simply means that both sides have been making up the rules.
Leeser’s shakiest arguments are about his claim that the people of Australia endorsed Kerr’s and Fraser’s actions because in the election they voted strongly for Fraser’s Liberal Party. He offers no evidence to support this claim; in fact opinion polls at the time revealed general disapproval of their behaviour. Michelle Grattan who was there on the day of the Dismissal as a junior reporter for The Age reports in another Saturday Extrasession, that Australians were annoyed and enraged at the way Fraser and Kerr had conspired to ambush the elected Prime Minister.
The election was not a trial of Fraser and Kerr for their wrongdoings. It was about who the people supported to form government for the following three years. And it was not about the powers of the Senate, the authority of the head of state, or the conventions of appointing executive government.
We have kicked those issues down the road for 50 years. Leeser, in defending the right of politicians to make up “constitutional” rules to their benefit, and in opposing any change to our constitution that would remove our governor-general’s subservience to a foreign monarch, has not helped in resolving them.