Governor General In The Constitution example essay topic

In 1975 Australia witnessed the most traumatic political upheaval since federation. The 'Constitutional crisis' of 1975 involved the principles and conventions of responsible government, the powers of the Senate underscored by the federal system, and the powers given to the Governor-General in the constitution. The governor-general at the time, Sir John Kerr, dismissed the Whitlam government in purported exercise of his powers under's. 64 of the Constitution.

He then commissioned a new government under the leadership of Mr. Malcolm Fraser, to 'act as a caretaker Government and... make no appointments or dismissals or initiate new policies before a general election is held. ' The intervention of Sir John Kerr to remove the Whitlam government was due to the irreconcilable friction between the Senate and the House of Representatives. The essence of the crisis was the refusal of the Senate to pass a Supply bill until 'the Government agrees to submit itself to the judgment of the people'. In other words, the Senate would block the supply bill until Gough Whitlam held another election, an election in which the opposition was confident it would win. In order to make a decision on whether or not Sir John Kerr was acting within his powers by dismissing the Whitlam government, one must fully comprehend the series of events leading up to the 11th of November, and to also be able to distinguish between formal provisions of the written Constitution and unwritten constitutional conventions, conventions that are supposed to be followed and that were allegedly breached by the Governor-General.

In May 1974 the Labor government led by Gough Whitlam was re-elected with reduced majority in the House of Representatives (ALP 66 seats, L-CP 29, Independent 2). However, the Labor party did not have a majority in the Senate, where the numbers where deadlocked (ALP 29 seats, L-NP 29, Independent 2). In February 1975, one of these seats was to become vacant, as Senator Murphy was appointed Justice of the High Court. The death of another Labor senator in the September of that year meant that another vacant seat of a Labor senator had been left as well. An unwritten convention had developed that, irrespective of which political party held a majority in such a joint sitting in that particular State Parliament, a replacement Senator would be chosen who was the nominee of the political party to which the departed Senator belonged. This assisted in keeping the representation of each party fair.

However, in 1975 this convention was not followed. As a result, the Whitlam government faced a Senate where the Opposition could block its legislation. The Opposition, led by Mr. Malcolm Fraser, announced in October 1975 that the Senate would block the Whitlam governments supply bills. In order to resolve the impasse, the Whitlam government must call an election. And so the battle began.

Fraser justified his decision to defer the bill in the following statement: 'We will use the power vested in us by the Constitution and delay the passage of the Government's money bills through the Senate, until the Parliament goes to the people'. Mr. Whitlam replied by stating the Senate had no right to bring down the government, and alleged that Mr. Fraser: "intends to use the accidental numbers he thinks he controls in the Senate to delay passing the budget until the money runs out... I state again the basic rule of our parliamentary system; governments are made and unmade in the House of Representatives-in the peoples house. The Senate cannot, does not, and must never determine who the government should be". He also justified his refusal on the ground that as long as his Government commanded a majority in the House of Representatives, it was entitled to serve out its maximum term of three years under's. 28 of the Constitution and that therefore it was the duty of the Senate to make this possible by passing budget bills.

Thus the Senate and the House of Representatives were in a deadlock, and the consequence of this was the inability of the government to obtain supply. So why did Sir John Kerr dismiss the Whitlam government? There are many controversial factors revolving around this issue, however the essence of the answer is a simple one. The government needs money to run, and if a supply bill can't get through, the government will inevitably run out of money, therefore will be unable to govern. Sir John Kerr grounded his action upon the deadlock between the two houses of parliament and the consequent inability of the government to obtain supply. A Prime Minister who could not obtain supply must either call for an election so a supply could be obtained, or resign.

Gough Whitlam refused these alternatives. Therefore, Sir John Kerr was obliged to do his duty under the Constitution he had sworn to maintain and exercise his powers to revoke the Prime Ministers commission and appoint a new Prime Minister that would advise a double dissolution and guarantee supply. Sir John Kerr believed that this was the last resort, and the only alternative to gain supply. The Constitutional crisis provides some insights into the interplay and friction between the provisions of the written Constitution and the informal understandings or conventions which also form part of the broader constitutional framework.

The key word that needs further explanation in relation to this event is 'conventions'. The controversial issue of whether or not Sir John Kerr acted within his powers by dismissing the Whitlam government is closely intertwined with the concept of convention, and convention itself is a central theme in the events of the Constitutional crisis. There is a significant difference between what is formally established written law, and a set of rules that are conventionally followed, but are not legally binding. In 1975, there were displays of such conventions in breach.

Two state governments broke with the convention about filling vacant Senate seats. It was convention that vacancies should be replaced by members of the same political party of the outgoing senator. This did not happen in 1975, and the Labor government became outweighed as the two replacements were opposed to their government, when their predecessors were Labor senators. Responsible government is not mentioned in the Constitution, and neither is ministerial responsibility.

It is usually considered, however, that responsible government means the responsibility of the elected government, including its ministers, to the Parliament and through it to the people as a whole. The principle that a government must be responsible to the House of Representatives is a core principle of parliamentary responsibility. The Senate's action in refusing to pass the Whitlam government's supply bill was arguably contrary to the conventions of responsible government, as those conventions rely only on the government commanding support in the House of Representatives and thus depend on the Senate passing the supply, even if the Senate is controlled by the opposition. With such longstanding conventions been broken, it was hard to see a resolution been met without the intervention of the Governor-General. However, critics of Sir John Kerr argue if he had not intervened, good sense and political compromise could have resolved the crisis.

A possible solution to the deadlock over supply was to hold an election as soon as possible for half of the Senate. It offered positive prospects of solving the deadlock by constitutional means. If the Governor-General had been advised by the leader of a government commanding a majority in the House of Representatives that the government wished to follow this course of action, his duty would have been to accept the advice, for it represented an attempt to solve the crisis in a parliamentary way. However, in this case, the idea was dismissed. Sir John Kerr was unwilling to accept this advice on the grounds that it did not, in his opinion, 'guarantee a prompt or sufficiently clear prospect of been resolved. ' The Governor-General was faced with a conflict between his personal beliefs that the interests of the nation would be better served by a course of action other than the half Senate election, and the advice from his Prime Minister that the half Senate election should be held.

Adherence to his personal belief and consequent rejection of the Prime Ministers advice involved an unprecedented break of convention on Sir John Kerr's behalf. By convention, he should have followed specific advice of the Prime Minister, which is where the controversy lies. The question is whether Sir John Kerr had the power to act in the manner he did. Perhaps based on long established conventions, he did not have the power to act in this way.

However, a convention is not law, and there was nothing written in the Constitution to prevent the course of action that Sir John Kerr took. Constitutionally, in dismissing Mr. Whitlam and installing Mr. Fraser as Prime Minister, the Governor-General acted within his formal powers as specified in's. 64 of the Constitution, but contrary to the long-standing and fundamental convention that he should only appoint a person supported by a majority in the House of Representatives. The constitutional powers exercised by the Governor-General are a central aspect of the crisis. The general consensus of the Australian public would not have known that the Governor-General had powers exceeding that of the Prime Minister, or that the Prime Minister is not even mentioned in the Constitution.

Many of the actions taken during the constitutional crisis in 1975 and the events preceding it were justified by recourse to the literal terms of the Constitution. Section 61-67 of the Constitution are the most relevant in regards to the Governor-General's powers. Section 61 vests the executive power of the Commonwealth in the Queen but provides that it is 'exercisable' by the Governor-General. To add to this, there is no written indication that the Governor-General must act otherwise than on his own discretion in exercising this executive power. Section 64 empowers the Governor-General to appoint officers to administer such departments of state as may be established by the Governor-General in Council.

Under Section 5 and 28 of the Constitution, the Governor-General is given express power to dissolve the House of Representatives. The 'reserve' powers that the Governor-General possesses where severely underestimated prior to the 1975 Constitutional crisis, and this crisis illustrates alleged 'loopholes' in the document. Although the Governor-General has no legal power under the Constitution to dismiss a government, the exercise of the power he does possess, to dismiss his advisers, achieves the same result in practice. The question still remains and is still heavily debated as to whether or not Sir John Kerr acted in his powers to dismiss the Whitlam government. Constitutionally there is no serious doubt that the Governor-General was right in law. The Governor-General has the power to dismiss ministers; he possesses what Sir John Kerr called 'reserve powers' and the lawyers for Labor more dramatically call 'emergency' powers, although even the latter do not challenge the existence under the Constitution of such authority.

Whether for better or worse, on the 11th of November 1975 the Governor-General of Australia asserted powers which is safe to say very few people with any knowledge of the matter supposed to continue exist, or ever existed under the Australian Constitution. Whether the Governor-General theoretically had the legal power to act as he did is highly debatable. The state of the nation was in turmoil-the Senate and the House of Representatives were in deadlock, and the inability to pass a supply bill meant that it was only a matter of time before the existing budget ran out. Under the Constitution it was Sir John Kerr's duty to revoke the Prime Minister's commission and appoint a new leader that would guarantee a supply and who would advise a double dissolution. The conflict is not about whether or not the Governor-General possesses these powers; constitutionally, he does.

Therefore the question lies not in the existence of such powers but whether the Governor-General can exercise them of himself and not upon the advise of the Prime Minister. This is where the debate lies. Conventions were broken on Sir John Kerr's behalf, as traditionally he acts upon the advice of his ministers, not personal discretion, and his unexpected and unpredictable intervention asserted the position of Governor-General as the effective Head of State. Constitutionally, Sir John Kerr possessed the power to dismiss the Whitlam government, however by ignoring long standing conventions and acting on personal discretion we are left with an emphatic precedent for the dismissal of the Prime Minister who held a reliable majority in the House of Representatives by a Governor-General acting on what he considered to be the only solution.

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