Enough time has passed now for us to assess with less passion the breaches of parliamentary convention associated with the events leading up to the Whitlam government’s dismissal by governor-general John Kerr in November 1975. Conventions exist for practical and sometimes self-interested reasons, and in these two cases — both involving the Senate — their breach had an unusually dramatic conclusion.
At the root of that year’s constitutional crisis was the power (or otherwise) of the Senate to block money bills, which are collectively referred to as “supply.” When Malcolm Fraser’s opposition parties blocked supply in the Senate in order to force an election, prime minister Gough Whitlam forcefully disputed the existence of that power, as did a range of constitutional experts. But a different range of experts supported the power, and Fraser used it in 1975 without constitutional challenge. Thus, we can probably cut to the chase and concede its legality.
But had “convention” decreed it not be used? In the fifth edition of his Australian Senate Practice, published in 1972, the clerk of the Senate, James Odgers, briefly addressed this question, asserting that “there can be no question that the Senate has the power to refuse Supply.” He didn’t concede that a convention existed against its use and — while noting it had never so far been used — viewed it as capable of being “brought out and used when circumstances warrant.”
Given his role with the Senate, it isn’t surprising that Odgers was a vigorous proponent of the upper house’s powers. But while there is an element of Mandy Rice-Davies in his position (“That’s what you’d expect him to say”), that isn’t the point. What matters is that on the eve of the election of the Whitlam government, the Senate’s most senior (non-elected) official was almost anticipating the events of 1975 and rejecting the validity of the convention argument used by Whitlam and others during the crisis.
This is not to say that conventions need universal support to exist. But some general consensus among key political players might be viewed as necessary. If someone on Whitlam’s staff had read Odgers, they might have usefully drawn the relevant content to the boss’s attention in the early days of the government.
Whitlam himself hadn’t been consistent on the Supply issue. In 1970 he had urged the Senate to reject a tax bill in order to “destroy” John Gorton’s Liberal government. And, in a little-noticed section of his new biography of Whitlam, Troy Bramston records that during a press conference after William McMahon’s accession to the prime ministership in 1971, Whitlam called for an election given the new leader’s lack of a mandate. When questioned as to whether he “would oppose supply in the Senate to force an election,” his reply was “[W]e would certainly consider this.” In each of these cases, the fact that Whitlam was unlikely to secure the crossbench numbers to achieve his goal is a somewhat lame defence if a matter of principle were genuinely involved.
Moreover, compared with his response in 1975, the Labor leader didn’t dwell on the Coalition’s breach of “convention” in 1974 when it threatened to block supply unless an election were called. Reasonably confident that he would win such an election, Whitlam promptly sought and secured a double dissolution without focusing too much on the principle involved.
Whitlam’s actions on that occasion could be said to have rendered his case more challenging the following year when he was trying to avoid an election he knew he would lose. Resisting the “abuse” of Senate power and sustaining the role of the House of Representatives as the maker of governments became a matter of great principle, and one he was obliged to defend.
Such flexibility of principle was not restricted to the Labor side. In 1968, Liberal founder Sir Robert Menzies spoke in support of a Coalition government encountering Senate frustrations. It would be “a falsification of democracy,” he declared, if government policy approved by the House of Representatives could be reversed by “the Senate representing the states and not the people.”
Alas for consistency, the great Sir Robert, possibly still recovering from the election of a Labor government in 1972, was less critical of Senate obstruction in 1975 and supported the opposition’s blocking of the budget. Nor had he been at all critical of the opposition’s practice of blocking other Whitlam government legislation in the Senate, far more extensive than the obstruction that prompted his colourful “falsification of democracy” line back in 1968.
When the Senate threatened to block supply in 1974, Whitlam (in contrast to his position in 1971) regarded the calling of an election as option, not an obligation. In doing so, he was potentially endorsing the view that denial of supply necessitated an election. While he subscribed to the principle that a government denied supply in the lower house should of necessity seek a dissolution, that too is a convention not mentioned in the constitution. Whitlam’s refusal in 1975 to advise an election that included the House of Representatives would test whether the Australian version of the convention applied to both houses.
The second convention caught up in the events of 1975 concerned the treatment of casual vacancies in the Senate. Two Senate places (both Labor) emerged in 1975, one as a result of a resignation (by Lionel Murphy, New South Wales) and one due to a death (Bert Milliner, Queensland).
Following the introduction of proportional representation for Senate elections from 1949, the states reached an agreement to replace like with like in the event of deaths or resignations. Twenty-five Senate casual vacancies arose between 1951 and 1972, and on each occasion the departing senator was replaced (on a motion of the relevant state parliament) by a member of their own political party. Significantly, on ten of these occasions, the state government in question was of a different political complexion to that of the senator being replaced: the convention was observed.
By 1975 it would therefore have been difficult to deny that a convention had been established — and essentially nobody did. But the convention was flagrantly breached that year when state governments appointed non-Labor nominees to fill the two Labor vacancies. The Queensland breach played a critical role in providing the opposition with the numbers to defer the budget. (The NSW nominee voted against the deferral.)
To fill the vacancy, Queensland’s conservative government demanded that the state Labor Party provide a list of three members from which parliament would choose. The party declined to accept, nominating just the one, Mal Colston. The government used the lack of cooperation as a reason to nominate its own replacement senator, Albert Field, a unionist and Labor branch member who harboured an intense (albeit incoherent) antipathy to the Whitlam government. (Field was stripped of his party membership after accepting the position.)
This breach of convention was widely criticised, including by some Liberals, but was not totally without (partial) precedent in Queensland. In 1962, the conservative government failed to accept Labor’s initial nominee to fill a casual vacancy but then accepted a replacement the party put forward. The principle of like for like had been maintained.
Of course, even if state Labor had nominated three party members in 1975, it is perfectly conceivable that the manically anti-Whitlam premier, Joh Bjelke-Petersen, would have categorised them as dangerous socialists (or worse) and proceeded with the Field nomination. We will never know, but we do know that replacing a deceased Labor senator with a Labor “rat” delivered the numbers the Coalition needed to block the budget in the Senate.
Soon after taking up his seat, Field’s eligibility to sit came into question under section 44 of the constitution because he had been undertaking government work at the time of his appointment. Despite his being on leave from the Senate pending resolution of that question, the opposition maintained a 30–29 majority. (Liberal Movement senator Steele Hall later remarked that Fraser’s Coalition secured power “over a dead man’s corpse,” that of Milliner.)
The breach of the Senate vacancies convention was to lead later to that rarity in Australian history — a successful constitutional referendum. In 1977 the Fraser government, having come to office with the assistance of the breach, proposed to accord constitutional status to that very convention. The law of mutual self-interest? The referendum carried all states with an overall national vote of 73 per cent. Unfortunately, under another law, that of unintended consequences, the greater ease in replacing departing senators has turned the Senate into a virtual elected/nominated hybrid.
The two conventions breached in 1975 have quite different pedigrees. The convention regarding casual Senate vacancies had been reinforced by twenty-five examples of positive action (a departed senator replaced with one of that departed senator’s own party) and, more particularly, by ten instances where state governments eschewed any partisan temptation to appoint one of their own side of politics to the vacancy.
Deferring passage of the budget — in other words, declining to act — is in a different category. For much of the time after the emergence of the party system, the government of the day (usually conservative) held a Senate majority: the question of Senate obstruction was often moot. The status of a convention might be best demonstrated by how an opposition behaved when it enjoyed a Senate majority and was confident that it could win the next election.
A case of sorts arose in 1931 during the life of the shortlived Scullin Labor government. When the United Australia Party opposition sought to curtail the length of time for which supply was granted, its Senate leader expressing a willingness to “force the ministry to an election.” Ultimately, a concession on timing from the government and reservations among some on the non-Labor side meant the opposition didn’t follow through on its threat. Scullin’s government would ultimately meet its demise on the floor of the House of Representatives.
If there was a convention that the Senate should not threaten supply, it was clear in 1931 that it didn’t enjoy universal support, although in the end, the “principle” was maintained. The next elected federal Labor government to face a hostile Senate would be Whitlam’s forty-two years later. For more than four decades, the “convention” was not tested.
For defenders of the Coalition’s actions in 1974 and 1975, past practices reflected a lack of circumstances and opportunity rather than an inviolable convention. The conservative partisan might thus contend that 1974 gave a conservative opposition the first chance to assemble the Senate numbers to force what they depicted as an incompetent and dishonest Labor government to face the people. A less biased observer would identify just two main criteria for the opposition — available means and the likelihood of electoral victory.
Regarding the latter, the Coalition was overly optimistic in 1974, but on the money in the following year. By 1975, a cynic might argue, the convention the conservatives observed was to use the upper house’s power when convenient. They had certainly done so in state parliaments.
To be fair, a small cohort of Liberal parliamentary members did express concern about the budget crisis in 1975 and claimed to support the principle that upper houses should not block money bills. And it must be remembered that the budget was not defeated in the Senate, simply deferred. Hence, the partisan pedant may claim the continued existence of a convention that supply not be “rejected.”
It is worth noting that Labor’s strategy of waiting for an opposition senator or senators to “crack” carried some irony for Whitlam. A strong supporter of a disciplined two-party system as a basis of Australian parliamentary democracy, he was effectively relying on a lack of such discipline among his opponents to allow him to prevail in the crisis. Speculation abounded, but it will never be known for certain whether any such Liberal defections were imminent. What is known is that none had emerged by 11 November.
Two conventions were at play in 1975, one with a more convincing record of observance than the other. Without Bjelke-Petersen’s breach of that casual vacancies convention (producing a “tainted” Senate), it is difficult to see how the conservatives’ upper house strategy could have been implemented.
In the fifty years since the constitutional crisis and dismissal — a period overseen by three Coalition and three Labor governments — blocking supply has been a non-issue. The most obvious explanation is the absence of the numbers in the upper house to facilitate any repeat of 1975. A combination of staggered terms, proportional representation and the weakening of the two-party system has ended for now the prospects of a government (let alone an opposition) possessing a Senate majority. A change to this state of affairs does not appear imminent. •
