Please to remember 11 November

I’m in Crikey yesterday on the 40th anniversary of Australia’s great constitutional crisis, mostly looking at the question of the British connection. (Ignore the sensationalist headline.) Along the way I have a gentle dig at my friend and colleague Guy Rundle, who had compared it with the experience of 1973 in Chile:

We know (roughly) how the CIA helped General Augusto Pinochet: military logistics, intelligence, propaganda and so forth. But where’s the analogy to any of this on November 11, 1975?

What I didn’t deal with, because it was outside the scope of the international angle, was Guy’s argument about the no-confidence vote on the afternoon of 11 November. But it’s worth a look, because there’s an important point there about responsible government. Here’s Guy:

… the crucial coup event — not the dismissal itself, but what [Jenny] Hocking calls the second dismissal, which was Kerr’s refusal to take the call, phone and personal, of house speaker Gordon Scholes mid-afternoon of the 11th. For obvious reasons: as soon as the Senate had passed supply, the house, having a Labor majority, voted no confidence in Fraser as PM, and made a recommendation to the head of state that Gough Whitlam be appointed prime minister.

This … would always be the next stage in any dismissal, a simple product of the fact that a Westminster parliament is not simply a legislative body; it is de facto quasi-executive and the place where the people believe executive power to lie. To prorogue a parliament by avoiding the communication that the appointed prime minister does not have the confidence of the house is clearly dictatorial.

There’s a common illusion that the House of Representatives chooses the prime minister. By using the phrase “the people believe” Guy shows that he knows it’s an illusion, but he’s captive to it himself. In reality, as I tried to explain a couple of years back, its powers are negative, not positive: it can remove a government, but it can’t create one.

Or as I said on another occasion, “The Governor-General can’t just go to Parliament on her own and ask them who they’d like her to pick, because in form a prime minister is her servant, not theirs.”

A government relies on the support of the House of Representatives to govern. If it loses that support, it must either resign and let someone else have a try, or else advise the governor-general to dissolve parliament for an election.

The latter, of course, is exactly what Malcolm Fraser did on 11 November – no surprise there, since that’s the basis on which he’d been appointed. John Kerr could, as a matter of strict constitutional law, have rejected that advice, said “No, I’ve changed my mind,” and sent for Gough Whitlam to (re-)form a government. Since supply had been passed in the meantime, Whitlam could then have carried on without an election.

But for Kerr to have done so would have been an extraordinary act of bad faith — much worse than anything he did to Whitlam. Having been appointed on the explicit basis that he would advise an election as soon as supply had been secured, of course Fraser was entitled to assume that that advice would be accepted: as indeed it was.

Given all of that, what point would there have been in Kerr receiving the speaker prior to the dissolution? It’s not as if he was going to tell him anything he didn’t already know; the state of the numbers in the lower house wasn’t a secret. Perhaps it was bad manners of Kerr not to meet with him anyway, but a lack of manners is hardly the stuff of dictatorship.

Guy refers to proroguing parliament – that is, preventing it from meeting but keeping it in being – but that’s just what Kerr didn’t do. He dissolved, from which point control of parliament became irrelevant.

Labor could have complicated the process if it had used delaying tactics in the Senate to prevent the supply bills from being passed so quickly. (It didn’t because Whitlam had neglected to tell his Senate colleagues about the change of government.) But that still wouldn’t have changed the eventual outcome.

Once Kerr, rightly or wrongly, had taken the decision to dismiss Whitlam, an election was inevitable. The first – actual – dismissal was the one that mattered.