Oh no, not 1975 again!

The diverse forces opposed to the Johnson government in Britain still seem to be some way from agreeing on a strategy that will prevent a no-deal exit from the European Union. But at least they seem to be focused on the problem.

In Australia, meanwhile, some pundits have discovered a local angle on the question. Here’s Nick Miller in the Age last week, referring to the proposal by opposition leader Jeremy Corbyn:

But his plan could require the Queen to step in to sack Prime Minister Boris Johnson, in what would be a constitutional crisis mirroring Australia’s 1975 “Dismissal” of Gough Whitlam’s government, when the Governor General, Sir John Kerr, replaced the government temporarily with the Opposition, until an election could be called.

There’s certainly some similarity between the two situations, but Miller’s way of putting it leaves out two critical differences.

The whole point of what made 1975 so controversial, and why Whitlam’s supporters objected so bitterly to Kerr’s action, was that Whitlam commanded a majority in the House of Representatives. Their view, right or wrong, was that that was all that mattered: until he lost that majority, he was entitled to govern.

But any suggestion of the queen’s involvement in the current crisis applies only after Johnson loses a vote of confidence. Instead of resting his claim on a majority in the lower house, Johnson (hypothetically) would be trying to cling to office despite a hostile majority. Big difference.

The second point is the very different situation of the governor-general compared to the queen. The big lesson of 1975 is that because the governor-general lacks any security of tenure, they can be put in a position where they feel they have to act quickly and surreptitiously.

As I’ve said before:

At the time, Labor partisans often said that Kerr had acted in a way that the Queen herself would not dare. But this missed the point: the Queen would never have to act secretly, because she cannot be summarily dismissed. She could afford to let her prime minister know what she was thinking.

The queen wouldn’t have to meet Johnson with his dismissal papers all made out. She (or her private secretary) could just quietly tap him on the shoulder and say “I’m sorry Mr Johnson, I’m afraid this just won’t do.”

It has sometimes been suggested that in 1975 the palace tried to remedy this problem, to a limited extent, by providing Kerr with an assurance that it would not act immediately on a request from Whitlam to remove him, thereby providing him with some breathing space. (Which, if so, he completely failed to use.)

But we don’t know for sure what was said, because parts of the correspondence between Kerr and the palace have never been made public. Whitlam’s biographer, Jenny Hocking, has waged a long campaign to have them released; last week she was granted leave to appeal to the High Court against earlier decisions that have kept them secret.

I wish her well, but I question whether they are likely to tell us anything very exciting.

Hocking has her own take on the Brexit analogy, which is the reverse of Miller’s. She likens Johnson’s position not to Whitlam’s but to that of his successor, Malcolm Fraser:

What followed [the dismissal] was a replica of Johnson’s no-deal Brexit strategy, set in action forty-four years ago: ignore the confidence motion of the House, defy the Speaker and call an election while remaining in office. The Liberal party leader Malcolm Fraser followed that path precisely, ignoring the confidence motion against him, defying the confidence of the House in an alternative government, dissolving parliament and calling an election while remaining Prime Minister …

Well, yes, that’s true as far as it goes. But it misses the point that Fraser had been appointed specifically in order to hold an election. Hocking seems to think that having installed him for that reason, Kerr should then have double-crossed him and reappointed Whitlam after the House of Representatives passed a no-confidence motion. This is the stuff of fantasy.

Once the decision to dismiss Whitlam had been taken, the election followed as a matter of course. Everyone knew that Fraser lacked a majority in the lower house; that wasn’t news of any sort. But he immediately requested a dissolution, which Kerr, quite properly, granted.

Johnson’s situation is completely different; firstly because he isn’t a caretaker – he hasn’t just been appointed for the purpose of securing an election – but also because of the passage of the Fixed-term Parliaments Act of 2011, which changed the constitutional position.

Prior to that, a prime minister who lost their majority had the option of a dissolution. But as I explained the other day, that option has been removed; Johnson is obliged to wait two weeks to see if a majority can be formed for an alternative government.

If that happens, it will be a fascinating test of the new machinery and possibly of the reserve powers of the monarch. But the similarity with 1975 in Australia shouldn’t be exaggerated.

4 thoughts on “Oh no, not 1975 again!

  1. ‘The big lesson of 1975 is that because the governor-general lacks any security of tenure, they can be put in a position where they feel they have to act quickly and surreptitiously.’

    That’s true, in a way; but in what way?

    In 1932 there was a lot of criticism from Jack Lang and his supporters for Philip Game’s decision to dismiss Lang and his government; but Game told Lang what he was thinking all along the line, so none of the criticism was that Game had proceeded surreptitiously. I don’t know whether Game had thought about the possibility that Lang might recommend his removal, but if he did, he evidently didn’t let it influence his course of action.

    So I conclude that the way in which your statement is true is this: a big lesson of 1975 is that because the Governor-General lacks any security of tenure, a Governor-General _who is a lowlife_ can be put in the position of feeling that surreptitious action is required, even if a decent person in the same position would behave more straightforwardly.

    Like

    1. Thanks J-D. Not that I really want to defend Kerr, but I think Game was in a different position. Until the Australia Act of 1984 the state governors were accountable to the monarch via the British government, and there’s no way that the British government of the time would have complied with a request from Lang to have Game dismissed on the spot. But at least after the adoption of the Statute of Westminster in 1941, the governor-general was a direct representative of the monarch, who in that respect could act only on the advice of the Australian government. I agree Kerr was underhanded, but I do think the system put him in a position where that was an understandable response.

      Like

      1. I suppose it’s true that Philip Game’s position was different from John Kerr’s, although I’m not clear on all the details. It’s clear that he didn’t behave as if he were liable to instant dismissal, and it may be that’s because he wasn’t at risk of instant dismissal.

        On the other hand, it isn’t clear that John Kerr was genuinely at risk of instant dismissal. In October 1975, the ‘dormant commission’ which made it possible for the then Governor of Queensland (like any other State Governor) to act in place of the Governor-General (as ‘Administrator’) in the event of a vacancy was revoked, at the instance of the Federal Government. It turned out that the process took ten days. There’s no way of knowing for sure that it would take ten days to get a Governor-General dismissed, because no government has tried, but it seems at least plausible that it would have taken Gough Whitlam just as long (hypothetically) to get John Kerr removed as it did take him to get Colin Hannah’s ‘dormant commission’ taken away.

        Of course, even if it’s not the case that John Kerr was at risk of instant dismissal, it still may have been the case that he believed he was at risk of instant dismissal. So here’s another way of thinking about it.

        If the removal from office of a Governor-General is a calamity which a Governor-General should go to great lengths to avoid, then that might have justified John Kerr in failing to be candid with Gough Whitlam (in the way in which Philip Game was candid with Jack Lang). However, if the removal from office of a Governor-General is not such a calamity, then John Kerr’s justification is not apparent. No doubt removal would have been uncongenial for him personally, but that’s not a noble motive.

        Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.