How many Australian governments have been dismissed by a representative of the Crown? Two, you might think – Lang’s in 1932 and Whitlam’s in 1975. But you would be wrong. In the Australian psyche it is Labor governments that are brought down by the establishment, through the blocking of supply by a conservative upper house and dismissal by the representative of the Queen. Yet history is not quite so discriminatory. Conservative governments, too, have been dismissed by a governor after supply was blocked by Labor. The difference seems to be that conservative leaders tend to go more quietly and their dismissal is politely described as a ‘resignation’. There is no rage to maintain and the events (including the lessons that might be drawn from them) are swiftly forgotten.
Two examples from Victoria will suffice to make this point. In 1945, only 30 years before the Whitlam dismissal, the Labor leader John Cain enticed renegade Liberals and independents to join him in blocking supply to the Country Party government of Albert Dunstan. Dunstan refused to resign. Instead, he sought the dissolution of parliament, even though supply was going to run out on the following Sunday. Governor Sir Winston Dugan agreed to grant him a dissolution if he could first secure supply to cover the election period. The Legislative Assembly again voted to refuse supply; resolving that in order to avoid the illegality of making payments without parliamentary sanction, the government should resign and a new administration be formed to which supply would be granted.
Dunstan again pressed for the dissolution of parliament and an election. The governor informed him that he would not be a party to the illegal application of public moneys and that he ‘required’ Dunstan’s resignation. Dunstan was given no choice. He was effectively dismissed, but permitted to submit a formal resignation.
The governor then asked Cain to form a government. Cain said that he could not do so, but that his party would support the grant of supply to a government formed by former Liberal attorney-general Ian Macfarlan. The governor commissioned Macfarlan as premier on the written assurance that he could obtain supply and would then advise an election. Supply was passed and the election held, following which Cain formed a minority government; in turn brought down in 1947 when supply was blocked in the upper house. Cain asked for a dissolution, which was granted by the governor; Labor lost the election and a minority Liberal and Country party government took office.
In 1952, an even more pertinent case occurred. This time Cain’s Labor party joined with Tom Hollway’s faction of former Liberals in the upper house to block supply to the Country Party government of John McDonald on 21 October. Supply was due to run out 10 days later. The premier advised the governor, Sir Dallas Brooks, to dissolve parliament and hold an election. He noted that he still had a majority in the lower house and that he would defeat any other government that the governor might appoint.
The governor consulted the other party leaders. Cain said that Labor would only support the grant of supply to a Hollway government. Hollway confirmed that he could get supply through the upper house with Labor’s support. He also thought he could survive in the lower house if he could convince two or three members of the Liberal party to join him. The governor then informed the premier, McDonald, that he would not grant him a dissolution and would instead appoint Hollway to form a government. McDonald had no choice but to resign, despite still holding a majority in the lower house. Hollway was sworn in as premier, supply was passed by the upper house and Hollway’s government was then immediately defeated in the lower house by the combined votes of the Liberal and Country parties.
Now Hollway went to the governor seeking a dissolution, saying he had met the only condition placed on him – achieving the passage of supply – and was therefore entitled to an election. McDonald wrote to the governor pointing out that Hollway had never achieved the support of the lower house and that he, McDonald, should be reappointed as premier.
The governor, after having consulted both the Chief Justice of the Supreme Court and the Chief Justice of the High Court, refused Hollway’s request; offering him the alternative of resigning voluntarily or doing so ‘at the governor’s request’ which was the polite term for dismissal. Hollway chose the latter. McDonald was then commissioned as premier on the condition that he advise the dissolution of parliament and the holding of a general election. Labor won it.
Much of the excitement about the ‘unprecedented’ and ‘unconventional’ nature of what happened in 1975 is a result of blissful ignorance of the past. Contrary to popular belief, the blocking of supply had been a tactic used in the past to bring down governments and it had been used by Labor, Liberal and Country parties alike. Chief Justices had advised the Queen’s representative in the past on constitutional crises, indeed it was common practice for them to do so. Conservative premiers had been dismissed too when they could not achieve supply – but the difference was that it was dressed up as resignation (or at least the premiers were prepared to allow it to be seen as resignation).
A better knowledge of our constitutional past might also have raised more sophisticated questions as to how Kerr should have behaved. Should Kerr have offered Whitlam the option of resignation or of calling a double dissolution rather than dismissal? Should Kerr have reappointed Whitlam as Prime Minister, after Fraser had been defeated in the House of Representatives, on the condition that Whitlam advise a double dissolution? History suggests that there were better ways of handling the crisis that would not have resulted in the same rent in the constitutional fabric of the nation that occurred in 1975. Yet we cannot learn from history if we persist in being blind to it and insist that the constitutional clock only started in 1975.
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Anne Twomey is Professor of Constitutional Law and Director of the Constitutional Reform Unit at Sydney University.
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