Agreed.
One of the advantages of the system is that it enables freakshow-territory examples to be handled sensibly.
Whitlam dismissal what-ifs--(2) Whitlam dismisses Kerr?
- Thread starter David T
- Start date
Agreed.
One of the advantages of the system is that it enables freakshow-territory examples to be handled sensibly.
Well, I WAS being a little exaggeratory with regard to date, but I feel that your scenario would create irreparable damage to Anglo-Australian relations. If you're of the right age you will remember how angry people were over 'the dismissal'. If you added fuel to that particular fire I think this anger would possibly expand to violence... particularly against Kerr (the wanker) and I don't think any of Fraser's politics would have had the effect it did in OTL.
Impossible to say of course, because people are fickle, but any on the 'Fraser side' who were in any way, shape, or form republicans or anti-monarchy would jump at the chance.
Only opinion of course.
The thing that PISSES ME OFF about the Whitlam dismissal, is the Queen would never dare to do the same thing even in her own country. I don't even think she has the right to do that.
I'd better take a chill pill.
I'd better take a chill pill.
Riain
Banned
Your Isle of Mann 'precedent' is an example of why the Crown has to take the advice of the elected PM, rather than showing that the Crown has an option other than taking the advice of the elected leader. The Crown's right to appoint an administrator in the Isle of Mann was removed, much like the case in Australia that was tested in 1931.
New guy here, thought I'd jump in to look further at this important moment.
Firstly, what Constitutional implications would be likely to result in the event that a Prime Minister dismissed (as we've seen in this thread, he/she basically has the de-facto control over appointments to Vice-regal positions, not the Queen) a Governor-General in the course of him/her carrying out their duties, entirely within their remit under the Australian Constitution/Letters Patent?
It seems like it would utterly end the current legal fiction that the GG is at the apex of the Australian political system – the PM and not the Sovereign or GG would now be seen by everyone as the supreme HoS, as well as the HoG. The whole existence of a “Federal Executive Council” chaired by the GG would be rendered meaningless, because a ‘Reverse Dismissal’ would establish the precedent that the GG is really just a puppet of the PM, who has no ability whatsoever to constrain the PM’s actions or exercise impartial control over the smooth functioning of the Australian Parliament. The only political entity in the country which effectively would have the ability to check the power of the PM would be the High Court (see recent cases over executive action towards asylum seekers for the types of actions I mean), and even that would happen in relatively limited instances.
If the GG doesn't have the ability to dismiss PM’s or call elections if he feels the Parliament is no longer operating effectively, regardless of the feelings of the government, then why even bother maintaining the position? Their power to hold the PM to account without worrying about job security seems like it would have been pretty much totally diminished, as opposed to OTL where the power of the GG was reinforced in November 1975 with a sobering demonstration of what the GG is capable of (provided they sneakily dispatch the PM, and provided the PM decides to go quietly).
Also, something which hasn't really been discussed is a scenario where Whitlam somehow gets wind of what is afoot, and sacks Kerr before Kerr can have him dismissed. But what if Kerr were to go rogue, and sometime between Whitlam’s telegram to the Queen, and the Queen’s inking and promulgation of letters of appointment for the new GG, Kerr announces to the public that as the Australian Head of Government he is exercising his authority to dismiss the Prime Minister and appoint Fraser as the interim PM. Then Australia effectively has two governments, with each (in the public’s eyes at least) having a reasonably strong claim to being the ‘true’ government. With Australia now having two men claiming they are in charge, what would happen? Would people’s opinion about who is the ‘real’ PM and who is the ‘pretender’ PM be based on party politics? If so, sounds like it could get pretty nasty...
Also, what would it take during the November Crisis for one or both parties to recognise the need to end the quirk of our political system that the Senate (“unrepresentative swill”) can stymie the agenda of a democratically elected government in the lower house by blocking supply. The crisis clearly showed that the gentlemanly agreement that supply is permitted to pass through a Hostile Senate is all well and good, but it is not a binding guarantee on the Senate –i.e. people mightn't do what they ought to do. Everything breaks down the moment the Opposition gets a leader that is willing abandon the convention by holding the House ransom.
The British stripped the HoL of the power to impede Appropriations Bills in 1911, so by 1975 it’s more than a little overdue for Australia. I think it’s the most curious thing about 1975, that it clearly showed how dangerous and undemocratic that power was should the Senate choose to abuse it, and yet no-one came out of the crisis seriously wanting to close that loophole.
Firstly, what Constitutional implications would be likely to result in the event that a Prime Minister dismissed (as we've seen in this thread, he/she basically has the de-facto control over appointments to Vice-regal positions, not the Queen) a Governor-General in the course of him/her carrying out their duties, entirely within their remit under the Australian Constitution/Letters Patent?
It seems like it would utterly end the current legal fiction that the GG is at the apex of the Australian political system – the PM and not the Sovereign or GG would now be seen by everyone as the supreme HoS, as well as the HoG. The whole existence of a “Federal Executive Council” chaired by the GG would be rendered meaningless, because a ‘Reverse Dismissal’ would establish the precedent that the GG is really just a puppet of the PM, who has no ability whatsoever to constrain the PM’s actions or exercise impartial control over the smooth functioning of the Australian Parliament. The only political entity in the country which effectively would have the ability to check the power of the PM would be the High Court (see recent cases over executive action towards asylum seekers for the types of actions I mean), and even that would happen in relatively limited instances.
If the GG doesn't have the ability to dismiss PM’s or call elections if he feels the Parliament is no longer operating effectively, regardless of the feelings of the government, then why even bother maintaining the position? Their power to hold the PM to account without worrying about job security seems like it would have been pretty much totally diminished, as opposed to OTL where the power of the GG was reinforced in November 1975 with a sobering demonstration of what the GG is capable of (provided they sneakily dispatch the PM, and provided the PM decides to go quietly).
Also, something which hasn't really been discussed is a scenario where Whitlam somehow gets wind of what is afoot, and sacks Kerr before Kerr can have him dismissed. But what if Kerr were to go rogue, and sometime between Whitlam’s telegram to the Queen, and the Queen’s inking and promulgation of letters of appointment for the new GG, Kerr announces to the public that as the Australian Head of Government he is exercising his authority to dismiss the Prime Minister and appoint Fraser as the interim PM. Then Australia effectively has two governments, with each (in the public’s eyes at least) having a reasonably strong claim to being the ‘true’ government. With Australia now having two men claiming they are in charge, what would happen? Would people’s opinion about who is the ‘real’ PM and who is the ‘pretender’ PM be based on party politics? If so, sounds like it could get pretty nasty...
Also, what would it take during the November Crisis for one or both parties to recognise the need to end the quirk of our political system that the Senate (“unrepresentative swill”) can stymie the agenda of a democratically elected government in the lower house by blocking supply. The crisis clearly showed that the gentlemanly agreement that supply is permitted to pass through a Hostile Senate is all well and good, but it is not a binding guarantee on the Senate –i.e. people mightn't do what they ought to do. Everything breaks down the moment the Opposition gets a leader that is willing abandon the convention by holding the House ransom.
The British stripped the HoL of the power to impede Appropriations Bills in 1911, so by 1975 it’s more than a little overdue for Australia. I think it’s the most curious thing about 1975, that it clearly showed how dangerous and undemocratic that power was should the Senate choose to abuse it, and yet no-one came out of the crisis seriously wanting to close that loophole.
She does have that right. She has the absolute, untrammeled right to remove a British Head of Government at whim.
And if she ever uses that right even slightly wrongly, she'll be replaced as monarch in a year at most and a new one installed.
Welcome to the Westminster System...
It's OK, I agree with you: it would have caused irreparable damage to Anglo-Australian relations and would have made a republic more probable . It's difficult to assign probabilities in a AH scenario, but...well, let's say I wouldn't have been surprised to see an Australian Republic by now ITTL...
It's a bit before my time but oddly, I am aware of the visceral anger concerning the Dismissal and I agree that Kerr acted in an underhanded manner when an overt approach would have been more suitable. Parenthetically, I disagree that Kerr was wrong, but I'm not here to engage in a argument over whether he was morally right/wrong - what I am here to point out specifically whether he acted ultra vires, and more generally how things work under the Westminster System.
Specifically, my point was that the PM cannot dismiss the GG without the Crown being involved: the chain goes PM-informs-Crown, Crown-dismisses-GG, GG-is-dismissed. The reason why I (continue to) point this out in this discussion is because it becomes vital at times of dispute such as the Dismissal.
Now, as pointed out above and below, things work differently in Australia and I may be wrong. But I doubt it: not because of any infallibility on my part, but because any changes done under the Westminster System can be undone using the same system. As a system it's very flexible.
Point 1: the example was an example[2]
You wanted an example where the Crown has an option other than taking the advice of the elected leader. I gave you one, and quite a recent one. The fact that it is no longer used does not obviate its existence. A gun in a holster is still a gun. A sword in a scabbard is still a sword. The Sergeant-at-Arms of the Canadian House of Commons is a purely ceremonial post...until it isn't. Ceremonial powers are ceremonial powers...until they aren't.
Point 2: nomination vs appointment, must vs can, removed vs changed
The legal theory is that the Crown is supreme: all power flows from it, all authority derives from it. Consequently the Crown is not told what to do, it is advised. This is why I have been careful to use words such as "nomination", "can", "changed" instead of "appointed", "must", "removed". Of course as we both know, the everyday reality is entirely different: the Crown is a legal fiction, the monarch is a figurehead, real power lies elsewhere. But the legal theory remains in place, and (as I explained above) legal fictions are not fictions in law - quite the opposite. In law the PM does not appoint the GG: the PM advises the Crown and the Crown appoints the GG. And at times such as the Dismissal, the law counts...as Whitlam found out to his cost.
This whole concept underpins the Westminster System and failure to understand it results in many errors. Consider a recent case in the UK concerning the imposition of press regulation via the Privy Council[1] rather than via Parliament. That such a thing could occur was hotly disputed by press editors, because the press editors believed the Crown was a figurehead and it could not happen. But in the legal world of the law, the Crown was supreme and it could happen...and it did. Now that they have realised their mistake, Parliamentary action was scrambled to circumscribe it by defining it, and they may yet succeed in overturning it. But the fact that it went as far as it did illustrates my point.
And arguably, the fact that the Dismissal took place at all illustrates it even further. Because it happened IRL.
Notes
[1] see http://en.wikipedia.org/wiki/Royal_Charter_on_self-regulation_of_the_press
[2] Incidentally, why the scare quotes around "precedent"? It's factual and it happened.
De-facto control is not de-jure control. Provided s/he goes via the Crown, the PM can dismiss GGs as often as he likes. Twice a day if s/he wishes, and three times on Sunday...provided he goes via the Crown.
A legal fiction is not a fiction in law. The PM's de-facto control of the GG is not de-jure. If Australia wants to become South Africa (which has a unified HoG&HoS elected by the legislative assembly) then the PM can get de-jure control. If it wants to retain the Crown as HoS, then the PM doesn't. I think I'm agreeing with you so I'll shut up now.
Again, I agree.
If this happened, I would hope the Crown would intervene and state the telegram was recieved when it was sent and Kerr dismissed at the same moment (you can dismiss a GG without immediately appointing a new one). This would render Kerr's dismissal of Whitlam null and void: Whitlam would be deemed to have never been sacked and a new GG would be selected in the normal manner. Conversely, the Crown could state that the telegram had never been recieved (or, having been recieved, not acted upon) and that Kerr's dismissal of Whitlam was valid, making Fraser's appointment null and void. Conversely the Crown could just hide under the bed. It occurs to me that I don't actually know the answer to your question...
I agree with you about the consequences of restricting supply. Compare the Brits (HoC controls supply) to the Americans (Congress controls supply?) to 1975 Australia (Senate controls supply).
Riain
Banned
You're going to have to explain the Isle of Mann thing to me, I'm not getting what you mean. It appears to me that the IoM is undergoing its own Constitutional development and is years/decades behind Australia and is not an independent country; Britain is ultimately responsible for its good governance and defence, perhaps like the ACT or NT is the ultimate responsibility of the Federal Govt here. Prior to the IoM gaining responsible government for itself in the late 50s or so the Crown appointed the governor (or whatever), but upon achieving responsible government the Crown acts upon the advice of the advice of the Manx Govt. This was the situation in Australia since the late 20s and was tested in 1931 with the appointment of Isaac Isaacs against the wishes of the King, the King appointed Isaacs on the advice of PM Scullin and was quite petulant about it. The point being that despite having his own strong opinion on that matter, and it being a new convention, the King's wishes were rejected in favour of the PMs 'advice' which was in reality a demand.
I don't deny that reserve powers exist, they are written in the Constitution, what I don't believe is that despite words like advise that the Queen has options other than following the advice of her PM in conformance with the (written) Constitution.
Frances
Banned
In order to remove the Senate's ability to block Supply, you would need to amend the Constitution, That would require a referendum - and a referendum wouldn't get through. The LNP would oppose it and the referendum process has a built-in veto for the small states - QLD and WA would vote no, and probably TAS too.
It would have a Buckley's.
It would have a Buckley's.
Doesn't apply to this thread's scenario, I argue.
IMO Cook is correct that the only realistic way Whitlam might have sacked Kerr, would've been in the event of Kerr's documented unconstitutional behaviour, RE him seeking advice about the ministry without the ministry's permission or knowledge, becoming public; such a Dismissal, while being opposed by many partisans in the shortterm, would, in the longterm, be viewed as a legit 'clearing house'.
(And indeed, there's the OTL precedent of the Fraser govt happily letting Kerr leave office in 1977, and them subsequently deciding they couldn't give him a consolation prize in the diplomatic corp; many hardcore Kerr fans reckon he was sold down the river by the Coalition at that point. And I'm not even certain the likes of John Howard want to spend any time defending him these days. All of which would tend to imply the Coalition wouldn't have defended him as a martyr, "the last G-G allowed to consider himself impartial", if he'd been fired for misbehaviour in 1975. Or at least not for long.)
IMO you're putting a lot of weight on the vice-regal reserve powers being something that is easily contrasted with, or is an obvious counterbalance to, hypothetical examples of aggressive unconstitutional-ish govt attitudes.
I don't reckon that in normal, everyday governance, there is a constitutional oversight dynamic here comparible to that normal ability of the High Court to hand down rulings, which you mention above. The reserve powers are so incredible (exercised 4 or something times at state and federal level since federation?), they're real hollow crown stuff. They have almost no baring in the cumulative 700+ years of the state and Commonwealth govts.
Not many believe there was any 'reinforcement' of this office. The CW has it that the Kerr model of executive vice-regal status died with his resignation in 1977, and by his replacement with a long line of G-Gs who have been nothing like him...
The Australian senate has a lot of power over money bills (supply)*, certainly it's allowed to reject them, but it has no authority to decide it can 'withdraw confidence' in the govt of the day.
In fact, that's where Kerr's chief supporter & High Court CJ Barwick came a cropper in the years after the Dismissal; he ended up essentially arguing that every govt in our history which has never had a majority in the senate has thus never truly enjoyed the confidence of parliament. That's too much for even conservative Liberals to accept, apparently. Particularly now that we have Clive Palmer, Australia's answer to Ross Perot, holding the balance-of-power in the upper chamber.
*Section 53. Which I--and if not constitutional law scholars, then at least historians of the politics of the federation conventions of the 1890s, like John La Nauze--view specifically as having been drawn up by the framers for very clear, realworld reasons. Reasons that were meant to codify that the States' House, i.e. the senate, was always to be subordinate to the Reps on supply bills, even if they had the power to reject (see the section's last sentence in particular).
I've mentioned before the clause in s.53 about instructing the senate to send a note to the House in the event of it rejecting a money bill. That's deadly serious advice from the framers for conflict resolution, it was never meant to allow for an ultimatum "quit and call an election now over non-supply matters" to be issued by a senate majority; because the framers always believed that finding a compromise on fiscal/economic policy deadlocks, or the tariff issue as they called it then, was the dominant reason for s.53. When it came to these money bills, there was to be no other political dispute that could interfere.
But it would seem that detailed historical parsing of s.53 went by the wayside with constitutional law experts the further the 20th century progressed; so that since '75, both the pro- & anti-Kerr scholarship has blandly accepted the senates' theoretical right to block a money bill for any reason; instead, said scholars when assessing '75, will now mostly fight for/or against the conventions of parliament being paramount, for/or against the '74 double dissolution election being the correct precedent for dealing with a supply blockage.
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