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House of Representatives                                Ch 13                                                 p 467

Significance of the constitutional crisis of 1975

The political upheavals of 1975 add up to the most significant constitutional developments in this country since federation. They resulted in a fundamental redistribution of power between the two Houses of the national parliament and between Parliament and the executive. Owing to the result of the election [13 December 1975] the more important effects of the change are unlikely to become obvious for a while yet, but it would be unrealistic to hope that they will remain quiescent for more than a few years at most. ¹

The foregoing comment from Professor Colin Howard, Hearn Professor of Law, University of Melbourne, reflected the view of a wide spectrum of academic and political thought in Australia.

The significant departure from perceived const itutional conventions which occurred in 1975 caused some reflection on the intention of the framers of the Constitution. Quick and Garran, who were intimately involved in the development of the Constitution, ² referred to the possible differences which could emerge over time between the Houses and commented on the way in which it was foreseen that the concept of responsible government and majority rule (as seen in the House) and State representation (as provided for in the Senate) would operate in the Federal Parliament.

First, the role of the Crown in relation to the Cabinet was set out:

Whilst the Constitution, in sec. 61, recognizes the ancient principle of the Government of England that the Executive power is vested in the Crown, it adds as a graft to that principle the modern political institution, known as responsible government, which shortly expressed means that the discretionary powers of the Crown are exercised by the wearer of the Crown or by its Representative according to the advice of ministers, having the confidence of that branch of the legislature which immediately represents the people. The practical result is that the Executive power is placed in the hands of a Parliamentary Committee, called the Cabinet, and the real head of the Executive is not the Queen but the Chairman of the Cabinet, or in other words the Prime Minister. (Dicey, Law of the Const. p. 9.) There is therefore a great and fundamental difference between the traditional ideal of the British Constitution, as embodied in sec. 61, giving full expression to the picture of Royal authority painted by Blackstone (Comm. I. p. 249) and by Hearn (Gov. of Eng. p. 17), and the modern practice of the Constitution as crystallized in the polite language of sec. 62, ‘‘there shall be a Federal Executive Council to advise the Governor-General in the Government of the Commonwealth’’. ³

Then, the reason was quoted for the establishment and maintenance of the relationship between the Crown and the Ministry, as set out with some clarity by Sir Samuel Griffith, later to be the first Chief Justice of the Australian High Court:

There are perhaps few political or historical subjects with respect to which so much misconception has arisen in Australia as that of Responsible Government. It is, of course, an elementary principle that the person at whose volition an act is done is the proper person to be held responsible for it. So long as acts of State are done at the volition of the head of the State he alone is responsible for them. But, if he owns no superior who can call him to account, the only remedy against intolerable acts is revolution. The system called Responsible Government is based on the notion that the head of the State can himself do no wrong, that he does not do any act of State of his own motion, but follows the advice of his ministers, on whom the responsibility for acts done, in order to give effect to their volition, naturally falls. They are therefore called Responsible Ministers. If they do wrong, they can be punished or dismissed from office without effecting any change in the Headship of the State. Revolution is therefore no longer a necessary possibility; for a change of Ministers effects peacefully the desired result. The system is in practice so intimately connected with Parliamentary Government and Party Government that the terms are often used as convertible. The present form of development of Responsible Government is that, when the branch of the Legislature which more immediately represents the people disapproves of the actions of Ministers, or ceases to have confidence in them, the head of the State dismisses them, or accepts their resignation, and appoints new ones. The effect is that the actual government of the State is conducted by officers who enjoy the confidence of the people. In practice they are themselves members of the Legislature . . . The ‘sanction’ of this unwritten law is found in the power of the Parliament to withhold the necessary supplies for carrying on the business of the Government until the Ministers appointed by the Head of the State command their confidence. In practice, also, the Ministers work together as one body, and are appointed on the recommendation of one of them, called the Prime Minister. And, usually, an expression of want of confidence in one is accepted as a censure of all. This is not, however, the invariable rule; and it is evidently an accidental and not a fundamental feature of Responsible Government. ⁴

In continuing the description of the relationship of the Crown’s representative with the Cabinet, Quick and Garran states:

In the formation of a Cabinet the first step is the choice and appointment of its President or spokesman, the Prime Minister; he is chosen and appointed by the Crown or by its representative. In the choice of a Prime Minister, however, the discretion of the Crown is fettered; it can only select one who can command the confidence of a majority of the popular House. The other members of the Cabinet are chosen by the Prime Minister and appointed by the Crown on his recommendation. ⁵

Colin Howard, ‘The constitutional crisis of 1975’, Australian Quarterly 31, 1, 1976, p. 5.

Quick and Garran , p. ix.

Quick and Garran , p. 703.

Sir Samuel Griffith, Notes on Australian Federation, 1896 , pp. 17-18, quoted in Quick and Garran , pp. 703-4.

Quick and Garran , p. 705.