Common(wealth) Knowledge #23: Can the Governor-General dismiss Prime Ministers?

47 years on from the 1975 constitutional crisis, a look at what the Whitlam Dismissal can tell us about constitutional conventions.

On 11 November 1975, Governor-General John Kerr dismissed Prime Minister Gough Whitlam, in what has become the biggest constitutional crisis in Australian history. In Common(wealth) Knowledge #16, I teased that the most significant legal issue here was the constitutionality of the Governor-General dismissing the Prime Minister. And that is what we will look at here.

At first glance, it may appear that the dismissal was constitutional, because Section 64 of the Australian Constitution grants the Governor-General the power to appoint Ministers. This provision could be argued as also allowing the Governor-General to dismiss Ministers, as that is necessary if the Governor-General wants to continue appointing new Ministers.

However, the issue is not so clear-cut, because of constitutional conventions. These were discussed at length in Common(wealth) Knowledge #16, but in summary, they are unwritten rules of the Constitution. As they are not part of the Constitution itself, they are not legally binding, but are nonetheless treated as important, and because they aren’t in the Constitution they can be more flexible and change over time, to fit changing circumstances.

Legally, the Governor-General has all the authority of the monarch. However, in the UK the power of the monarch has transitioned to the elected government, giving rise to constitutional conventions over the course of centuries that mean the monarch often only has power in a formal sense. These powers are known as the ‘prerogative powers,’ as they arise from the ‘prerogative’ of the monarch. In other words, they exist because of the historical nature of the monarch. Except when it comes to what is known as the ‘reserve’ powers, the head of state must use their prerogative powers in accordance with the wishes of the elected government.

Reserve powers are powers that are reserved for use by the head of state, namely the monarch or their representative at the Territory, State, or Commonwealth level. Unlike other prerogative powers, the monarch retains the ability to use reserve powers at their own discretion, although constitutional conventions regulate the circumstances in which these powers can be used. Generally, there must be some sort of emergency, such as a constitutional crisis, for the head of state to be able to use their reserve powers at their own discretion.

According to Garfield Barwick, writing after he retired from the High Court of Australia, where he was the Chief Justice, if a power of the monarch is mentioned in the Constitution, and is therefore regulated by it, it is a prerogative power. In contrast, powers instead regulated by constitutional convention are reserve powers. The dismissal of the Prime Minister falls into the second category, because the Prime Minister’s existence comes from convention. Famously, the Prime Minister is not mentioned in the Constitution.

It’s worth mentioning that the dismissal wasn’t limited to Gough Whitlam; John Kerr dismissed the entire government, because whenever the Prime Minister is dismissed, all of the Ministers are also dismissed. This is because the Governor-General appoints Ministers on the advice of the Prime Minister, so when the Prime Minister is dismissed or resigned, the rest of the Ministers must follow suit. When British Prime Ministers Boris Johnson and Liz Truss resigned, their Ministers also resigned for this reason.

Generally, when the Prime Minister does not have the confidence of the House of Representatives, they must resign. This is because the Prime Minister must have the ability to pass government spending bills through the lower House. If they can do that, then they become Prime Minister. It is assumed that if the Prime Minister is the party leader, then they command the authority to pass the spending bills, as it is assumed that the party will vote with them. Again, this comes from the UK, where the Prime Minister was originally the First Lord of the Treasury. They metaphorically held the keys to the Treasury, allowing them to spend money if the bills authorising the spending were passed.

Although a major reason for the dismissal of Whitlam was that he had lost the confidence of Parliament, the House in question was the Senate, not the House of Representatives. Whitlam had the ability to pass spending bills in the lower House, but did not have the numbers in the Senate to pass those bills there. Under Section 53 of the Constitution, these ‘appropriation and suppy bills’ must originate in the House of Representatives, and the Senate can only vote to reject and accept them. Because the opposition refused to allow these bills to pass, the government was unable to spend money.

When John Kerr dismissed Whitlam and appointed Liberal/Country leader Malcolm Fraser as Prime Minister, he told Fraser that a condition of his appointment was to pass those spending bills. Fraser was also required to advise Kerr to dissolve Parliament and call an election. Fraser’s appointment was a stopgap solution, with the election meant to resolve the problem in the long-term, by giving either Labor or the Liberal/Country the numbers to pass spending bills.

Despite the fact that Whitlam had the confidence of the House of Representatives and that his resignation was effectively forced upon him, it is generally accepted that his resignation was constitutional. Before dismissing Whitlam, Kerr consulted Barwick, who at that time was the Chief Justice. Barwick advised Kerr that the dismissal was constitutional. Barwick was aware that this was not the first time this had happened in Australia.

In 1945 and 1952, two Liberal/Country Victorian governments, led by Country Party leaders Albert Dunstan and Ian McDonald, respectively, suffered similar fates. Liberal/Country renegades sided with Labor in the Legislative Assembly in 1945, leaving Dunstan without the numbers to pass appropriation and supply bills there. In 1952, similar events took place in the Legislative Council. Both Premiers were forced to resign, and both times Labor, under John Cain Sr, won the following election.

Since the dismissal, it has been discovered that Kerr had multiple conversations with future Chief Justice Anthony Mason. Although Mason had only been on the High Court for three years, at the time, he had previously been a Justice of Appeal on the Supreme Court of New South Wales and the Commonwealth government’s Solicitor-General. Mason did not provide any formal advice, but did write up a draft letter for Kerr to use to terminate Whitlam’s commission as Prime Minister. This letter was never used.

Although it is generally accepted that the exceptional circumstances surrounding the dismissal justified the use of the reserve power by Kerr, especially as there was precedent for its use, there is one problem with Kerr’s actions that others, including Mason, have recognised. The issue is that Kerr did not provide Whitlam with any warning that he was going to dismiss him. In contrast, when New South Wales Governor Philip Game dismissed Labor Premier Jack Lang, he gave Lang notice that he was going to be dismissed.

As soon as Whitlam was dismissed, he wanted to contact the Queen. Fred Daly, Labor’s Leader of the House, recalled that Whitlam wanted to ask the Queen to dismiss the Governor-General, as the Prime Minister has that power, although as Whitlam had already been dismissed he could not do so. Putting aside the controversy about whether the Queen had been involved in the dismissal, if Whitlam had been given notice that he was going to be dismissed, it would have been a race to contact the Queen. Timezones meant that Whitlam could not contact the Queen immediately, but called first thing in the UK morning, before the Queen or her Private Secretary were informed by Kerr of the dismissal, according to the then-Assistant Private Secretary Sir William Heseltine.

Following Whitlam’s dismissal, the major parties agreed that they would never again use their numbers in the Senate to block appropriation and supply bills in order to topple the government. It also saw the end of Governors-General consulting High Court judges on constitutional matters, despite the fact that other Commonwealth nations continue to allow that. One issue there is that Barwick had been the Attorney-General and Minister of External Affairs under Prime Minister Robert Menzies, so may have been biased, although political biases in High Court judges is a topic for another time.

The dismissal of Gough Whitlam has left such an imprint on Australia that even today, 47 years after the dismissal, Australians continue to speculate about it. In addition to its effect on Australian society, its constitutional implications continue to drive academic conversations, and this is unlikely to stop any time soon, especially with the 70th anniversary just a few years away.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Anne Twomey, The Veiled Sceptre: Heads of State in Westminster Systems (Cambridge University Press, 2018).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Sir Garfield Barwick, Sir John did his Duty (Serendip Publications, 1983).

George Williams, Sean Brennan, and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (The Federation Press, 7th edition, 2018).