The Governor-General has special powers, known as “reserve powers” that can only be used in certain circumstances.
The two most significant reserve powers are the powers to appoint and to dismiss a Prime Minister. In exercising a reserve power, the Governor-General ordinarily acts in accordance with established and generally accepted rules of practice, or conventions. For example, when appointing a Prime Minister under section 64 of the Constitution, the Governor-General must, by convention, appoint the parliamentary leader of the party or coalition of parties which has a majority of seats in the House of Representatives.
There are circumstances however where there is no generally agreed convention regarding the exercise of the Governor-General’s reserve powers. Such a situation arose in 1975 when the then Governor-General, Sir John Kerr, dismissed the then Prime Minister, Gough Whitlam, after the Senate (which was controlled by Opposition parties) blocked the passage of a Supply Bill in an attempt to block the Whitlam Government.
Some people have argued that in 1975, the then Governor-General, Sir John Kerr, acted properly in dismissing Mr Whitlam as what he did fell within the scope of his reserve powers and the “implied convention” that a Prime Minister who cannot obtain supply should either seek a general election or be dismissed. Others contend that Kerr’s dismissal of the then Prime Minister was a departure from the democratic principle of representative government in that a person who retains majority support of the House of Representatives should be entitled to retain his position as Prime Minister.
The Dismissal of Gough Whitlam and the ‘Palace Letters’
Following a recent High Court of Australia decision which finally resolved a political historian’s decade long battle to access the so-called ‘Palace letters’, it is appropriate to revisit a tumultuous period in Australian constitutional and political history where former Governor-General of Australia Sir John Kerr engaged in correspondence with Her Majesty the Queen, prior to former Prime Minister of Australia Gough Whitlam being dismissed. It would be fair to say that the circumstances surrounding Gough Whitlam’s dismissal in 1975 were unfathomable and threw into question Australians’ understanding of their Constitution and political system. The recent release of the ‘Palace letters’ has reignited debate about how much the Queen knew at the time.
We will revisit the events leading up to 11th of November 1975 before fast forwarding to the recent High Court decision of Hocking v Director-General of the National Archives of Australia [2020] HCA 19 and discuss their significance to our Australian institutions of democracy.
The Australian Constitution: Introductory comments
According to constitutional conventions, there are three situations that might trigger the dismissal of an Australian Prime Minister: loss of confidence, failure to secure supply and deliberate violation of the Constitution or the law of the land.
Under the conventions of the Westminster system of government, the Prime Minister does not have an obligation to offer the resignation of the government in the event that it loses the confidence of the Senate. In fact, a government can enter office without majority support in the Upper House.
Section 53 of the Australian Constitution states that the two houses of Parliament – the House of Representatives and the Senate – are equal in power, except that the Senate cannot originate a bill appropriating money or imposing tax, nor amend such a bill that has been passed by the House of Representatives. The wording of Section 53 and in particular the last paragraph, strongly suggest that the Senate can reject proposed laws.
Furthermore, Section 57 provides a mechanism for resolving disputes between the two Houses. If a deadlock arises and continues for a certain period of time and certain prerequisites are met, the Prime Minister can advise the Governor-General to dissolve both Houses with a view to calling an election.
Suppose for a moment the government has the confidence of the House of Representatives, but fails to secure passage of a supply bill through the Senate? What would happen in that situation? Should the Prime Minister initiate the resignation of the government? Should the Prime Minister advise the Governor-General to dissolve one or both houses of Parliament? Alternatively, should a half Senate election be called instead?
These were some of the issues that Gough Whitlam had to grapple with during the period that he was Prime Minister of Australia. During the period of his leadership, he found himself at an impasse when trying to pass certain supply bills through the Federal Parliament and as the weeks progressed, the way forward became unclear.
The key question to ask ourselves before we read any further is what role the Constitution envisages the Governor-General should play in situations such as these. Where there is a deadlock between the two houses of Parliament, does the Governor-General have any part to play at all, or are the roles of the Queen and the Governor-General largely ceremonial in Australia?
To quote Winston Churchill, “Those that fail to learn from history, are doomed to repeat it”.
With these preliminary questions in mind, let’s look at what happened in 1974 before moving on to discuss the recent High Court case involving the ‘Palace letters’.
Representative and Responsible government
Australia has a system of constitutional government in which power is diffused among multiple governments with limited powers and in which the powerful federal government does not usually control the Senate. It also has an independent court system, which decides jurisdictional disputes concerning a government’s powers. Such dispersion of power substantially checks and restrains federal and state government in Australia and is a powerful institutional protection for human rights.
The Governor-General of Australia is the Queen’s Representative. In practice, they are regarded as above party politics and have a duty to remain impartial or politically neutral. They have specific constitutional and statutory powers. The Australian Constitution does not provide an exhaustive list of the Governor-General’s reserve powers. They are both express and implied but generally, can be divided into three groups – prerogative, legislative and executive. Furthermore, discretionary reserve powers allow the Governor-General to act against or without the advice of the Prime Minister. These powers are not written into the Constitution and their scope is open to interpretation.
The Prime Minister of Australia is elected by their party to lead their team as part Australia’s system of representative government. The executive government is chosen by, is answerable to, and may be removed by, the popularly elected House of Parliament. Australian citizens choose candidates to represent them in parliament as part of our system of representative democracy.
Responsible government is commonly considered to be the primary part of Australia’s system of government and is certainly the oldest part. It has the executive based primarily in the House of Representatives or lower house, to which it is accountable on a day to day basis. Hence, there is a fairly direct line of accountability from the people who elect the members of parliament to the executive which holds office subject to confidence of the popular house of parliament. To remain in government, a party or coalition must maintain the support of the majority of members in the House of Representatives. This is an integral aspect of responsible government: ensuring the government is accountable to the Parliament.
What happened to Gough Whitlam?
The 11th of November 1975 was one of the most momentous days in Australian history. The day took a dramatic turn after people crowded on the steps of Parliament House in Canberra to hear an announcement. The announcement to the Australian people was that the twenty first Prime Minister of Australia, Edward Gough Whitlam, had just been dismissed. This surprise announcement sent shock waves through the community. It is for this reason that the 11th of November marks one of the most extraordinary events ever witnessed in Australian political history. Whitlam remains the only Australian Prime Minister ever to have been removed from office in this way.
Edward Gough Whitlam and his Labor Party came to power following a 1972 election. Whitlam led his party to power for the first time in 23 years, implementing policies which many celebrated. Elected in a national mood of hope and anticipation, the government quickly became surrounded by controversy. Whitlam won the 1974 election, but over time, he grew less popular amid a troubled economy.
The Labor government implemented a large number of policies and programmes, however the Prime Minister’s leadership started to become increasingly challenging with an opposition-controlled Senate, which started to obstruct the passage of bills. This culminated in Whitlam calling a double dissolution[1] election in 1974 in which he won a slightly reduced majority in the House of Representatives, but gained three seats in the Senate. Whitlam then initiated the first and only ever joint sitting[2] pursuant to Section 57 of the Constitution as part of the double dissolution process. The joint sitting was held on 6 August 1974 and is the only one to have ever occurred in Australian political history. Six proposed laws were considered and voted upon on that day, but even the validity of the joint sitting itself and the validity of certain laws that were passed on that day formed the subject of a number of cases brought before the High Court.
Notwithstanding the government’s second election victory, the Opposition continued to make governance difficult for the Prime Minister in the Senate by setting about a very deliberate strategy of obstruction. Without a majority in the Senate, the Whitlam government was hamstrung. In late 1975, the Opposition Senators refused to allow a vote on the government’s supply bills[3], returning them to the House of Representatives with a demand that the government go to an election, thus denying the government supply.
Whitlam refused to succumb to mounting pressure, arguing his government held a clear majority in the House of Representatives and was therefore being effectively “held to ransom” by the Senate.
By this stage, the new Governor-General of Australia, The Right Honourable Sir John Kerr, had been sworn in. Kerr was exchanging confidential correspondence with both the Queen and the Queen’s private secretary at the time, Sir Martin Charteris. He was also seeking advice from the former High Court Chief Justice, Sir Garfield Barwick, regarding his powers to dismiss the Prime Minister. For a number of weeks during this period, Sir John Kerr had also met with both Gough Whitlam and the Opposition Leader, Malcolm Fraser separately. During his private meetings with Sir John Kerr, Malcolm Fraser is alleged to have been applying pressure on the Governor-General to act.
On the morning of 11 November 1975, Whitlam and Fraser met in an effort to resolve the crisis. Whitlam proposed to Fraser to hold a half-Senate election in a bid to avoid mounting pressure to go to an early election. Fraser refused, instead demanding a full election for the House of Representatives. The meeting between the Prime Minister and the Opposition leader failed to reach a consensus position. Whitlam’s office then called the Governor-General and requested a meeting with him. Whitlam was confident the outcome of the meeting would be that the Governor-General would agree to a half-Senate election, in order to break the constitutional impasse that had arisen as a result of the supply crisis. So confident in fact, that he’d already drafted the letter calling for a half-Senate election.
Later that day, Whitlam met with Sir John Kerr at the Governor-General’s residence. Whitlam took with him the letter requesting a half-Senate election but before Whitlam could hand over to Kerr the necessary documentation to initiate that process, Kerr handed Whitlam a letter of his own, advising him that he was no longer the Prime Minister. The pre-signed letter from Kerr advising Whitlam of his dismissal went further. It also advised him that the commission of every single Minister in his entire government had also been terminated. It was an enormous shock for Whitlam. Upon handing over the documentation to Whitlam, Kerr reputedly said: “We all have to live with this”, to which Whitlam is reported to have responded: “You certainly will!” and with that, Whitlam shook Kerr’s hand and exited the building.
Not prepared to accept his unceremonious dismissal, Gough Whitlam immediately set about drafting a Motion for the House of Representatives. Whitlam made plans to return to Parliament that afternoon, when Parliament was due to resume, and use his majority to announce a Motion of confidence in himself as Prime Minister, after which he intended to ask the Governor-General to reinstate him. Whitlam genuinely believed Parliamentary democracy would take its course and he would be reinstated as Prime Minister. Whitlam knew that Labor held the majority in the House of Representatives, which is why he was confident of a good outcome.
As it turned out, Gough Whitlam was mistaken. The Prime Minister was not aware that only an hour earlier, while he was meeting with the Governor-General, the Opposition leader Malcolm Fraser, had also been called to the Governor-General’s residence. Moments after the meeting between Gough Whitlam and Sir John Kerr where the Prime Minister was given notice of his dismissal, Fraser was called in by the Governor-General and appointed as caretaker Prime Minister.
At 2pm, both Houses of Parliament sat. Gough Whitlam (who at this stage remained unaware of Fraser’s appointment as Prime Minister) prepared to assert his authority in the House of Representatives. However over in the Senate and almost an entire hour after Whitlam had been dismissed, the news had not reached the Senate. Gough Whitlam was so focused on a strategy for the House of Representatives, he hadn’t thought to tell his Senators that he’d been dismissed. In hindsight, it would have been politic for Whitlam to have thought about the Senate because the Senate had been deadlocked over the supply issue for weeks.
At 2:24pm on the 11th of November 1975, the Senate passed the budget and unblocked supply. As the Labor Senators in struggled to understand what had just happened, reality slowly dawned upon them. The Labor Senators had just passed a supply bill not for their Prime Minister, but for a new Prime Minister, Malcolm Fraser and his party. They had been ambushed.
Back in the House of Representatives, after becoming aware of what had just happened and in a last minute scramble to regain control, Whitlam sought to move a new Motion, calling on the Governor-General to both dismiss Malcolm Fraser and reinstate himself as Prime Minister on the basis that he retained the confidence of the House of Representatives. Whitlam’s Motion passed easily, with a resounding 10 vote margin. In any other circumstances, all that would have been needed next would be for the Speaker of the House to convey the news to the Governor-General and have the documents executed. Sadly, this is not what happened.
The Speaker adjourned the House of Representatives at 3:15pm and phoned the Governor-General’s secretary to make an appointment. Sir John Kerr advised the Speaker he was unavailable. The Speaker was told he would have to wait. At 4:25pm, the Speaker arrived as instructed to Government House, only to find that the gates were locked.
As the Speaker waited outside the gates of Government House for over an hour, Sir John Kerr and Malcolm Fraser were firmly ensconced inside, preparing the necessary paperwork to set an election in train and shut down the Parliament. By the time the Speaker was allowed inside Government House at 4:45pm, he was no longer the Speaker of the House. Parliament had been dissolved and the Motion he held in his hand was redundant.
During this critical time period, it is alleged the Governor-General refused to make himself available to the Speaker of the House of Representatives, with the obvious intention of obstructing the Motion by the House of Representatives. By making himself unavailable, the Governor-General could not entertain the House of Representatives Motion to form or un-form government. To this day, John Menadue, former Secretary of the Department of Prime Minister and Cabinet remains livid about the events of that day, clearly still shaken by the ‘immorality’ and ‘deception’ he witnessed.
Sir John Kerr argued he had the authority to dismiss Gough Whitlam under implied powers in the Constitution, but this “reserve power” to remove an elected Prime Minister has remained the subject of debate ever since. Although Whitlam was sacked on the justification that he had failed to get Parliament to approve spending, and then subsequently declined to call an election, query whether he was in fact dismissed because he could not hold “responsible government”, not so much in everyday terms, but as envisaged by the Constitution. This, even though he still held the majority of “representative government” in the House of Representatives.
In the hours that followed on November 11th, Old Parliament House descended into almost total chaos. Journalists were seen running around, trying to keep up with the pace of the unfolding drama. Within the Old Parliament House building, sensitive documents were being hurriedly packed into boxes, loaded into cars and driven away. News of Whitlam’s dismissal and Fraser’s appointment spread like wildfire. Hundreds of Labor supporters protested outside Old Parliament House. The deception felt by Whitlam supporters was palpable.
The Governor-General’s secretary, David Smith, appeared before a throng of journalists and a vociferous crowd to read a Proclamation. Smith was nearly drowned out by their noise. The dismissed Prime Minister, who had been standing behind Smith, then addressed the crowd.
Listen to Gough Whitlam’s now famous address following the dismissal of his government on 11 November 1975 (21 seconds).
The Prime Minister’s dismissal was an unprecedented event that shocked Australians and sparked debate about Australia’s political independence from the United Kingdom. Some viewed the Prime Minister’s dismissal as a “constitutional coup” and an overreach of the “royal prerogative”, sparking demonstrations and calls for Australia to become a Republic. Others celebrated Whitlam’s departure, having started to question his party’s legitimacy. In an election held soon afterwards, voters overwhelmingly elected the caretaker government of Malcolm Fraser’s centre-right Liberal Party and Labor lost the subsequent 1977 election by a landslide.
The dismissal of the Whitlam government on 11 November 1975 was certainly an unforgettable occasion in the history of Australian politics. It is sometimes referred to as Australia’s darkest and most shameful days. A short video (4:31 minutes) which summarises the challenges which were faced by the Whitlam government and the events leading up to the dismissal of Gough Whitlam can be viewed here:
One salutary consequence of the dramatic events of 1975 has been that both sides of politics, both government and opposition, appear to have become more wary about taking matters to extremes, preferring to let conflicts be resolved in the ordinary course by elections.
Another somewhat ironic consequence is that while the Dismissal of Gough Whitlam sparked renewed debate about Australia becoming a Republic, it also undermined the idea. A republican model which assumes a head of state directly elected by the Australian people remains a concept that many Australians feel dubious about. Arguably, the events of 1975 continue to remain in the Australian consciousness and current attempts to reach a consensus towards a Republic continue to be haunted by the ghosts of the past.
What are the ‘Palace Letters’ and why are they significant?
The Right Honourable Sir John Kerr held the position of Governor-General of Australia from 11 July 1974 to 8 December 1977. Throughout that period, Sir John Kerr engaged in “personal and confidential” correspondence with Her Majesty the Queen. There were 211 letters exchanged at the time, comprising some 1200 pages in total. These letters subsequently became known as the ‘Palace Letters’.
Following Kerr’s retirement from the office of Governor-General, a sealed package containing correspondence exchanged between himself and Buckingham Palace were deposited with the Australian Archives. The package was deposited by the Official Secretary to the Governor-General under cover of a letter expressing Her Majesty’s “wishes” and Sir John’s “instructions” that its contents should remain “closed” for 60 years from the date of his retirement. The letters were not intended to be made available to the public until after 8 December 2037, however some time afterwards, another letter from the Official Secretary, sent not long after Sir John’s death on 24 March 1991, announced that Her Majesty had “reduced” the closed period to 50 years, so as to allow release to the public after 8 December 2027.
The deposited correspondence arguably became “records” under the auspices of the Archives Act 1983 (Cth) and thus formed part of the archival resources of the Commonwealth, under the care and management of the National Archives of Australia. Upon becoming archival resources of the Commonwealth, they potentially became records of national significance and/or public interest, by virtue of the fact that they formed part of the history of government of Australia.
Under the Archives Act, applications can be made to make certain material publicly available once the record is within the “open access period”.
Professor Jennifer Hocking is an academic historian and writer with a particular interest in Australian constitutional and political history. On 31 March 2016, Professor Hocking requested access to the file within the custody of the Archives containing the deposited correspondence. On 10 May 2016, the Director-General of National Archives of Australia rejected her request for access on the basis that the contents of the file were not Commonwealth records. That characterisation of the deposited correspondence was upheld on at first instance by the Federal Court of Australia (Griffiths J)[4] and on judicial review by a majority of the Full Court of the Federal Court (Allsop CJ and Robertson J, Flick J dissenting) [5]
Professor Hocking appealed to the High Court. Generally speaking, appeals to the High Court are only allowed in certain circumstances and/or where certain criteria are met. On this occasion, her appeal was allowed. Hocking’s appeal centred on the construction and application of the definition of “Commonwealth record”.
During the appeal, the High Court examined the circumstances surrounding the creation of the ‘Palace letters’ and their keeping and deposit, as well as the legislative history and purpose of the Archives Act. Before it could address the ultimate question of whether the ‘Palace letters’ should be released, the High Court had to firstly address the proper construction of four principal statutory terms.
The High Court [at 104] observed that both parties accepted that the nature of the relationship between the Governor-General and the Queen during the period in which Sir John Kerr held the office of Governor-General had been shaped by developments that had occurred in the constitutional relations between the United Kingdom and Australia in the three-quarters of a century since the enactment of the Australian Constitution. It was not necessary in this case for the High Court to determine whether a constitutional convention pertaining to the ownership of confidential communications with Her Majesty existed in the United Kingdom or in any other Commonwealth country. It was also not necessary or relevant for the High Court to have to determine whether the Commonwealth as a body politic or Sir John Kerr as an individual was the true owner at the time of the deposit of the material with the Australian Archives. [111]. The only thing that was necessary for the High Court to determine was who the true owner of the correspondence was at the time it was deposited with the Australian Archives.
The High Court opined the correspondence at the time of deposit with the Australian Archives was the “property of the official establishment of the Governor-General”. [118]. This then was sufficient to lead to the ultimate conclusion that each item of the deposited correspondence was a Commonwealth record. Although Justice Nettle disagreed, the majority of the Justices allowed the appeal. The High Court [at 267] set aside the orders of the Federal Court of Australia. In their place, the High Court ordered that a writ of mandamus be issued, compelling the Director-General of the National Archives of Australia to reconsider Professor Hocking’s request for access to the ‘Palace letters’. Furthermore, it declared the ‘Palace letters’ to be Commonwealth records.
Read the Full Court of the High Court of Australia decision dated 29 May 2020 here.
Our analysis
The ‘Palace letters’ were released online by the National Archives of Australia in Canberra on 14 July 2020. The Palace letters can be viewed here.
The recently released letters have revealed that Sir John Kerr sacked the Whitlam government in 1975 without giving advance notice to Her Majesty Queen Elizabeth II, because in the words of Sir John Kerr, “it was better for Her Majesty not to know”.
The Palace letters provide us with further important insights into events which took place at the time, including:
- the personalities and events of the time
- political developments and public sentiment in Australia
- the workings of the Australian Government and Parliament
- the official duties and responsibilities of the Governor-General
- the relationship between the Palace, the Queen’s Private Secretary and the Governor-General, and
- Constitutional issues, including what led to the dismissal of Gough Whitlam in 1975.
The Queen was not warned of the Sir John Kerr’s plans to dismiss Whitlam, evidenced by a letter sent by Sir John Kerr to the Queen’s Private Secretary, Martin Charteris, dated 11 November 1975:
Some point to Martin Charteris’ letters dated 4th and 5th November 1975 to suggest that the British Monarchy did influence Sir John Kerr’s decision to dismiss Whitlam on 11 November 1975. However, letters were sent between London and Canberra by diplomatic bag by air and there was a considerable lead time (about 8-9 days or even longer) between when the letters were sent and received between Sir John Kerr and Charteris. It is therefore likely that Sir John Kerr did not receive Charteris’ letters dated 4th and 5th November 1975 until after he announced the dismissal of Whitlam on 11 November 1975, and Charteris nor the British Monarchy could not have influenced Sir John Kerr to dismiss Whitlam.
Other aspects that the recent release of the Palace letters have shed light on include:
- Sir John Kerr wanted to prevent a possible “race to the Palace”, that could see Whitlam call for the Governor-General’s dismissal: something he said would put the Queen in an “impossible position”.
- In a letter dated 17 November 1975, Martin Charteris wrote to Kerr that he had acted “not only with constitutional propriety, but also with admirable consideration for Her Majesty’s position”
- The Governor-General, in 1976, wrote that there would “inevitably be discussion about constitutional amendment” in Australia, but that it would be “only on the left wing” and that most “want it to remain as it is”.
The letters remained under ‘lock and key’ and were labelled as private documents, but the High Court decision in May 2020 deemed them to be property of the Commonwealth and thus able to be accessed by the public.
Historians say the documents finally fill in the gaps about Australia’s biggest constitutional crisis. “They go to the very heart of Australia’s constitutional independence,” according to Professor Mark McKenna from the University of Sydney.
Gough Whitlam and his supporters consistently claimed that he was the victim of a conspiracy between Sir John Kerr and Malcolm Fraser to remove him from office. There were never any formal accusations of interference directed at Buckingham Palace, however there was always some level of conjecture.
The public was denied access to the letters for years on the basis that they were deemed “personal” correspondence and subject to a royal embargo. Professor Jennifer Hocking initiated legal action in 2016 to overturn that status, arguing the letters were critical historical records of public significance. She argued their access should not be restricted by the rules of a foreign power. As she told the BBC, the release of the letters was “a terrific outcome for transparency and history”.
In an official statement, Buckingham Palace said Her Majesty the Queen had consistently demonstrated “support for Australia” throughout her reign.
“While the Royal Household believes in the longstanding convention that all conversations between prime ministers, governor-generals and the Queen are private, the release of the letters… confirms that neither Her Majesty nor the Royal Household had any part to play in Kerr’s decision to dismiss Whitlam.” [6]
There are many compelling aspects to the ‘Palace letters’, including the secrecy that has surrounded them to date and the fact that it took a High Court decision for them to be released, after a Federal Court refused the request.
All of this added to plausible suspicion around what the Palace knew. The letters answer the most pressing question about the extent of the Queen’s involvement. While there have been no ‘bombshell revelations’, the Palace letters nevertheless provide a remarkable insight into the almost daily and detailed correspondence between Sir John Kerr, the Queen and her Private Secretary during a time of high tension in Australian politics. The letters reveal the Governor-General was considering his position and the use of his reserve powers to dissolve Parliament and dismiss Whitlam. They also reveal there were suspicions that the Prime Minister might also be contemplating approaching the Queen to call for the Governor-General’s removal. The exchanges between Sir John Kerr and the Queen’s Private Secretary regarding the use of his reserve powers would have no doubt provided Kerr with great comfort about the Palace most likely accepting the use of his reserve powers to dismiss the Prime Minister.
The Kerr Palace letters provide Australians with a glimpse into almost a tug of war of power.
See video featuring Mr David Fricker, Director-General, National Archives, in which he discusses the correspondence sent to Buckingham Palace on 11 November 1975, notifying the Palace of Gough Whitlam’s dismissal. [7]
After Gough Whitlam’s dismissal, there was a great deal of anger at what many people saw as the Palace representative flexing his powers over Australia’s politics. Professor Hocking says:
“The really startling thing about these letters is the extent to which the Governor-General, Sir John Kerr, is communicating with the Queen about exactly those issues — about political matters that are happening in Australia at the time, about options he may face. The Queen, in response, is engaging with that level of conversation at a very political level. You could not get more political than the crisis in the Senate that the government faced, and the eventual dismissal without warning of the elected government.” [8]
Federal Labor leader Anthony Albanese said in relation to the correspondence: “The actions of the Governor-General on the 11th of November to dismiss a government, to put himself above the Australian people, is one that reinforces the need for us to have an Australian head of state, is one that reinforces the need for Australia to stand on our own two feet.”
Former Prime Minister Malcolm Turnbull, who is also a former chair of the Australian Republican Movement, said: “Until our head of state is an Australian citizen, with a loyalty only to this country, then our Constitution will not be fully achieved, in terms of giving Australia the independence and the dignity that our great nation deserves.” [9]
Australia’ Attorney General Christian Porter has declared the Governor-General having reserve powers
“keeps executive governments on their toes…That is part of the separation of powers, part of the balance of powers that good functioning democracies have got, and we’re probably the best-functioning democracy in the world.” [10]
The rule of law is implied in the foundations our civilised society. It is a principle which assumes that all persons, institutions and entities will be held accountable to laws that are publicly promulgated, equally enforced and independently adjudicated. The rule of law is fundamental to stable government, international peace and security and political stability. Without the protection of people’s rights and fundamental freedoms, there would be arbitrariness, a lack of transparency and in the worst-case scenario, anarchy.
To paraphrase political historian Professor Jennifer Hocking, in any consideration of Australia’s institutions of democracy, they are only ever as strong as the people at the top.
The need for Australians to have faith and trust in their institutions being stable, predictable and transparent remains as strong today as ever. The events of 11 November 1975 make for a compelling and cautionary tale about human nature and the consequences of individual, unfettered power. The future of our democratic society relies on those who are willing to learn from the past.
Footnotes and Further Reading:
https://www.abc.net.au/radio/programs/the-eleventh/
https://blogs.slv.vic.gov.au/such-was-life/well-may-we-say-god-save-the-queen/
[1] A double dissolution is a way of resolving deadlocks between the House of Representatives (lower house) and the Senate (upper house). Where certain pre-conditions are satisfied, the Prime Minister can advise the Governor-General to dissolve both houses of Parliament and call a full election.
[2] A joint sitting might occur if, after a full election, the legislation that triggered the double dissolution is still not passed by the House of Representatives and the Senate. In such an event, a joint sitting of the two houses of parliament may be called by the Governor-General to vote on a proposed law. The proposed law is voted upon and if it is approved by an absolute majority in both houses of parliament, it is taken to have been passed.
[3] A supply bill, also known as an appropriation bill or spending bill, is a proposed law that allows the expenditure of government funds. In the Westminster system of government, money set aside for specific spending has to have the approval of both houses of parliament. Rejection of a supply bill either necessitates the resignation of a government or the calling of a general election.
[4] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/340.html
[5] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2019/12.html?context=1;query=Governor-General;mask_path=au/cases/cth/FCAFC
[6] https://www.abc.net.au/news/2020-07-14/what-palace-letters-say-about-queen-role-in-whitlam-dismissal/12454430
[7] https://www.abc.net.au/news/2020-07-14/sir-john-kerr-queen-whitlam-palace-letters-released/12452616
[8] https://www.abc.net.au/news/2020-07-14/sir-john-kerr-queen-whitlam-palace-letters-released/12452616
[9] https://www.abc.net.au/news/2020-07-14/sir-john-kerr-queen-whitlam-palace-letters-released/12452616
[10] https://www.theguardian.com/australia-news/2020/jul/15/christian-porter-says-governor-generals-power-to-dismiss-prime-minister-keeps-governments-on-their-toes