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Ch13 Disagreements between the Houses / DOUBLE DISSOLUTION / The 1975 double dissolution



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House of Representatives                                Ch 13                                                 p 462

 

 

The 1975 double dissolution

The double dissolution of 11 November 1975 differed from earlier double dissolutions. Liberal Prime Minister Fraser who advised the Governor-General to grant a double dissolution had been Prime Minister only for a matter of hours and was not supported by a majority in the House. The bills which had satisfied the requirements of section 57 and which provided the technical grounds for the double dissolution had been introduced by the ALP Government, which had been dismissed from office earlier that day. ¹

From July 1974, when the 29th Parliament commenced, to November 1975, 21 bills were regarded as fulfilling the requirements of section 57, having been twice rejected by the Senate. In addition there was Senate opposition to a considerable number of other government bills. ²

As with the 1974 double dissolution, the critical event leading up to the double dissolution concerned the passage of bills appropriating revenue for the ordinary annual services of the Government, namely, Appropriation Bills (Nos 1 and 2) 1975-76. It was on these bills that the Houses were in actual deadlock but they were not the bills in respect of which the double dissolution was granted. The deadlock in fact was broken when the Senate finally passed the appropriation bills on 11 November prior to the announcement of the proposed double dissolution ( see p. 465 ). These bills had been introduced into the House on 19 August 1975 ³ and passed on 8 October. ⁴ The bills were introduced into the Senate on 14 October. ⁵ On 16 October the Senate agreed to the following amendment to the motion for the second reading in respect of each of the bills:

. . . this Bill be not further proceeded with until the Government agrees to submit itself to the judgment of the people, the Senate being of the opinion that the Prime Minister and his Government no longer have the trust and confidence of the Australian people . . . ⁶

A similar resolution had been agreed to by the Senate on the Loan Bill 1975 on the previous day. ⁷ Meanwhile the House agreed to a motion which in part read:

Considering that the actions of the Senate and of the Leader of the Opposition will, if pursued, have the most serious consequences for Parliamentary democracy in Australia, will seriously damage the Government’s efforts to counter the effect of world-wide inflation and unemployment, and will thereby cause great hardship for the Australian people:

(1) This House declares that it has full confidence in the Australian Labor Party Government;

(2) This House affirms that the Constitution and the conventions of the Constitution vest in this House the control of the supply of moneys to the elected Government and that the threatened action of the Senate constitutes a gross violation of the roles of the respective Houses of the Parliament in relation to the appropriation of moneys;

(3) This House asserts the basic principle that a Government that continues to have a majority in the House of Representatives has a right to expect that it will be able to govern;

(4) This House condemns the threatened action of the Leader of the Opposition and of the non-government parties in the Senate as being reprehensible and as constituting a grave threat to the principles of responsible government and of Parliamentary democracy in Australia, and

(5) This House calls upon the Senate to pass without delay the Loan Bill 1975, the Appropriation Bill (No. 1) 1975-76 and the Appropriation Bill (No. 2) 1975-76. ⁸

Following the passage of this resolution on 16 October 1975, and receipt of Senate messages communicating its resolutions on the appropriation and loan bills, ⁹ a series of further messages concerning the bills were exchanged between the Houses:

on 21 October the House asserted that the Senate’s action on the appropriation bills was not contemplated within the terms of the Constitution and was contrary to established constitutional convention. ¹⁰ On the same day in considering the Senate’s resolution in relation to the loan bill the House resolved that the action of the Senate in delaying the passage of the bill for the reasons given in the Senate’s resolution was contrary to the accepted means of financing a major portion of the defence budget and requested the Senate to pass the bill without delay; ¹¹

on 22 October the Senate asserted that its action in delaying the bills was a lawful and proper exercise within the terms of the Constitution and added several statements to support this view; ¹²

on 28 October the House, in dealing with the Senate’s message, denounced the Senate’s action as a ‘blatant attempt by the Senate to violate section 28 of the Constitution for political purposes by itself endeavouring to force an early election for the House of Representatives’ ¹³ and resolved that it would uphold the established right of the Government with a majority in the House of Representatives to be the Government of the nation; ¹⁴

on 5 November the Senate rejected the House’s claims ¹⁵ and the House, when dealing with the Senate’s reply, declared that the Constitution and its conventions vest in the House the control of the supply of moneys to the elected Government and that the action of the Senate constituted a gross violation of the roles of the respective Houses in relation to the appropriation of moneys. The House further declared its concern that the unprecedented and obstructive stand taken by the Senate in continuing to defer the passage of the bills was undermining public confidence in the parliamentary system of government; ¹⁶ and

a further resolution was agreed to by the Senate on the same day with respect to the Loan Bill 1975 [No. 2] in the same terms as that agreed to on the first loan bill on 15 October but was not considered by the House. ¹⁷

Whilst these messages were being exchanged between the Houses, the House, on 22 October, introduced and passed appropriation bills similar to the first bills. ¹⁸ Upon receipt of the bills, the Senate again resolved that the bills would not be further proceeded with until the Government agreed to submit itself to the judgment of the people. The Senate resolution on a third set of the bills was transmitted but was not considered by the House. ¹⁹

The Government was not only faced with the problem of continuing conflict with the Senate in respect of its legislative program. By early November, the moneys provided by the supply bills to maintain the public services of the country for the first five months of the financial year, pending the passage of the main appropriation bills, were becoming depleted and there were indications that there would be insufficient moneys to meet the necessary commitments of the Government at some time prior to 30 November.

A motion of want of confidence in the Government had been moved on 29 October and defeated ²⁰ and on 6 November, four sitting days later, Leader of the Opposition Fraser gave notice of a motion of censure of the Government based on the consequences of the appropriation bills failing to pass both Houses.

The next sitting day, 11 November, produced a sudden and dramatic climax of events. The Government allowed precedence to the motion of censure to which Prime Minister Whitlam moved an amendment censuring Leader of the Opposition Fraser. ²¹

During the lunch suspension Mr Whitlam went to Government House for a prearranged meeting with Governor-General Kerr. Mr Whitlam intended to advise His Excellency to approve an election for half the Senate, which was due in any case before 30 June 1976. ²² During the course of the meeting the Governor-General terminated Mr Whitlam’s commission as Prime Minister. The following is the text of the letter of dismissal: ²³

Government House,

Canberra. 2600

11 November 1975

Dear Mr Whitlam,

In accordance with section 64 of the Constitution I hereby determine your appointment as my Chief Adviser and Head of the Government. It follows that I also hereby determine the appointments of all of the Ministers in your Government.

You have previously told me that you would never resign or advise an election of the House of Representatives or a double dissolution and that the only way in which such an election could be obtained would be by my dismissal of you and your ministerial colleagues. As it appeared likely that you would today persist in this attitude I decided that, if you did, I would determine your commission and state my reasons for doing so. You have persisted in your attitude and I have accordingly acted as indicated. I attach a statement of my reasons which I intend to publish immediately.

It is with a great deal of regret that I have taken this step both in respect of yourself and your colleagues.

I propose to send for the Leader of the Opposition and to commission him to form a new caretaker government until an election can be held.

Yours sincerely,

(signed John R. Kerr)

The Honourable E. G. Whitlam, Q.C., M.P.

At 2.34 that afternoon Mr Fraser announced to the House that the Governor-General had commissioned him to form a Government. ²⁴ The Governor-General informed the Speaker by letter that he had that day determined the appointment of Mr Whitlam and had commissioned and administered the oath of office to Mr Fraser as Prime Minister. In accepting the commission Prime Minister Fraser made the following undertakings in a letter to the Governor-General:

. . . I confirm that I have given you an assurance that I shall immediately seek to secure the passage of the Appropriation Bills which are at present before the Senate, thus ensuring Supply for the carrying on of the Public Service in all its branches. I further confirm that, upon the granting of Supply, I shall immediately recommend to Your Excellency the dissolution of both Houses of this Parliament.

My Government will act as a caretaker government and will make no appointments or dismissals or initiate new policies before a general election is held. ²⁵

A few minutes before Mr Fraser made his announcement in the House, the Senate had passed the main appropriation bills. ²⁶ Following Mr Fraser’s announcement, the House agreed to the following motion by Mr Whitlam:

That this House expresses its want of confidence in the Prime Minister and requests Mr Speaker forthwith to advise His Excellency the Governor-General to call the honourable Member for Werriwa [Mr Whitlam] to form a Government. ²⁷

In speaking to his motion Mr Whitlam stated:

There is no longer a deadlock on the Budget between the House of Representatives and the Senate. The Budget Bills have been passed. Accordingly, the Government which twice has been elected by the people is able to govern. Furthermore, as has been demonstrated this afternoon, the parties which the Prime Minister leads do not have a majority in the House of Representatives. The party I lead has a majority in the House of Representatives. It has never been defeated in the year and a half since the last election and in those circumstances it is appropriate, I believe, that you, Mr Speaker, should forthwith advise the Governor-General—waiting upon him forthwith to advise him—that the party I lead has the confidence of the House of Representatives, and you should apprise His Excellency of the view of the House that I have the confidence of the House and should be called to form His Excellency’s Government. ²⁸

At 3.15 p.m. the Speaker suspended the sitting and sought an appointment with the Governor-General to convey to him the terms of the House’s resolution. An appointment was made for the Speaker to see the Governor-General at 4.45 p.m. At 4.30 p.m. the Governor-General dissolved both Houses and at 4.45 p.m. the double dissolution proclamation, in accordance with practice, was read by the Governor-General’s Official Secretary on the steps of Parliament House. The sittings of the Houses did not resume. The double dissolution proclamation was signed before the Speaker was able to see the Governor-General and present the House’s resolution to him. ²⁹

The double dissolution proclamation referred to the provisio ns of section 57, cited 21 bills accepted as satisfying the provisions of section 57 and dissolved the Senate and the House of Representatives. ³⁰

The Governor-General made public on the day of the dissolution his reasons for dismissing Prime Minister Whitlam ³¹ —the terms of the statement and of advice to the Governor-General by the Chief Justice of the High Court are incorporated in full at pp. 58-61 of the first edition and pp. 65-8 of the second edition.

On the following day Mr Scholes, as Speaker, wrote to the Queen expressing his serious concern that: ³²

. . . the failure of the Governor-General to withdraw Mr Fraser’s commission and his decision to delay seeing me as Speaker of the House of Representatives until after the dissolution of the Parliament had been proclaimed were acts contrary to the proper exercise of the Royal prerogative and constituted an act of contempt for the House of Representatives. It is improper that your representative should continue to impose a Prime Minister on Australia in whom the House of Representatives has expressed its lack of confidence and who has not on any substantial resolution been able to command a majority of votes on the floor of the House of Representatives.

It is my belief that to maintain in office a Prime Minister imposed on the nation by Royal prerogative rather than through parliamentary endorsement constitutes a danger to our parliamentary system and will damage the standing of your representative in Australia and even yourself.

I would ask that you act in order to restore Mr Whitlam to office as Prime Minister in accordance with the expressed resolution of the House of Representatives . . .

On 17 November the Queen’s Private Secretary, at the command of Her Majesty, replied that: ³³

. . . the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of The Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.

The election was held on 13 December 1975 and the Liberal-Country Party coalition gained a majority of seats in both Houses. None of the bills which formed the technical grounds for double dissolution was reintroduced by the new Government.

(A full time-table of events of the 1975 parliamentary crisis is given at pp. 62-4 of the first edition.)

There were many political factors which had a direct bearing on the 1975 double dissolution, e.g. the manner of filling casual vacancies in the Senate, the ‘loans affair’, and ministerial resignations. The intention here is to cover only the parliamentary aspects of the crisis.

See Appendixes 23 and 24 of first edition.

VP 1974-75/840.

VP 1974-75/953-6.

J 1974-75/952.

J 1974-75/962-5.

J 1974-75/954-6.

VP 1974-75/987-90.

VP 1974-75/992-3, 997-8.

VP 1974-75/1004-6.

VP 1974-75/1007-9.

J 1974-75/978-80.

Section 28 reads ‘Every House of Representatives shall continue for three years from the first meeting of the House and no longer, but may be sooner dissolved by the Governor-General’.

VP 1974-75/1045-7.

J 1974-75/1016-18.

VP 1974-75/1105-7.

J 1974-75/1018-20; VP 1974-75/1107.

VP 1974-75/1017-21, 1067-70.

J 1974-75/987-8, 1023-4; VP 1974-75/1118.

VP 1974-75/1059-60.

VP 1974-75/1121-3.

G. Whitlam. The truth of the matter , Penguin, Ringwood, 1979: p. 106; J. Kerr. Matters for judgment , Macmillan, Melbourne, 1978: p. 355.

Simultaneous dissolution of the Senate and the House of Representatives by His Excellency the Governor-General on 11 November 1975 , PP 15 (1979) 1.

H.R. Deb. (11.11.75) 2928; Gazette S227 (11.11.75).

H.R. Deb. (11.11.75) 2928.

J 1974-75/1031.

VP 1974-75/1125-7.

H.R. Deb. (11.11.75) 2931.

An acknowledgment, dated 13 November, of receipt of the resolution of the House was received by the Speaker on 17 November.

Gazette S229 (11.11.75)

PP 15 (1979) 2-4.

H.R. Deb. (17.2.76) 5.

H.R. Deb. (17.2.76) 6.