Constitutional Changes After 1975

Lobby Restaurant, Opposite Old Parliament House

November 11, 2000

Five years ago I and many other participants and observers wrote books and articles and spoke in conferences and programs on the coup d'état of 11 November 1975. For the 25th anniversary I chose a forum and symposium under the auspices of the Law Faculty of the ANU.

The Faculty, however, chose this venue. There have probably been more post-mortems on the events of November 1975 held here at the Lobby than anywhere else in Australia, although wine and truth do not necessarily go together. Old hands tell me that lunch at the Lobby has never recaptured its former civility or capaciousness since luncheon was so suddenly curtailed on the eleventh of the eleventh. In any case, two decisions during my Government's second term irrevocably altered the Lobby's geographical and institutional status. For more than a decade, the proposed site for the new and permanent Parliament House wandered futilely between the lakeside, Capital Hill and Camp Hill; on 26 September 1974 the ALP member for Burke, Keith Johnson, successfully initiated a private member's bill, The Parliament Bill, to build the new House on Capital Hill. On 29 September 1975 I unveiled a plaque to commemorate the start of construction of the building for the High Court of Australia. This plaque, on the insistence of Chief Justice Barwick, has been set flush with the floor in the court building.

I do not propose yet another post-mortem, at the Lobby or anywhere else. At this stage and age, I want to concentrate on what Australian Governments have done and should do to improve Australia's system of representative government. Federal parliamentarians have the main responsibility because they and they alone can initiate constitutional referendums and enact international instruments.

In all my own accounts and analyses of the matter, I contend that November 1975 was fundamentally a political crisis, fully capable of a political resolution, and, indeed, about to be so resolved, not more than 48 hours later than my government's dismissal. That is, by the fully attested switch of votes imminent on the part of at least four coalition senators. One such defection would have been enough to end the crisis. The dismissal was needless and premature. More recent accounts go to this conclusion. John Menadue's indispensable book, Things You Learn Along the Way, was published last year. I had appointed him to head the Prime Minister's Department in 1974. He left it on 12 November 1976. He made meticulous notes throughout the period of the crisis. I quote:

The Palace was not amused by what Kerr had done. I learned of this later from a note from Tim McDonald, the Official Secretary at Australia House, London, who relayed to me a discussion he had had with Sir Martin Charteris, who was personal secretary and political adviser to the Queen at the time. The discussion that McDonald had with Charteris was within a few weeks of the dismissal. Commenting on the Whitlam dismissal, Charteris said to McDonald that "the Palace shared the view that Kerr acted prematurely. If faced with a constitutional crisis which appeared likely to involve the Head of State, my advice would have been that [the Queen] should only intervene when a clear sense of inevitability had developed in the public that she must act. This had been Kerr's mistake". A clear sense of inevitability had not been arrived at.

Tonight, however, I propose only to touch on some aspects which point to changes in the Constitution which, if made before 1975, would have prevented the crisis or which, if made now, would prevent a repetition. I do so in the context of a general proposition:

The coup d'état of 11 November 1975 would not have occurred if the Prime Ministers before me had sponsored constitutional alterations to match those made in the UK in 1911 and in the US in 1913. Specifically, it would not have occurred if Menzies, Holt and Gorton in 1964, 1967 and 1970 had held elections for both Houses and not for the Senate alone.

We embarked upon a course to force a House of Representatives election.

The second Government I led had to work with a Senate in which the DLP had no members and neither the Government nor the Opposition had a majority. The Menzies, Holt, Gorton and McMahon Governments had failed to hold referendums to implement the arrangements which Menzies and the Premiers had made for the filling of casual vacancies after the death of a Labor senator in December 1951. Premiers Lewis (NSW) and Bjelke-Petersen (Qld) sponsored non-Labor men to fill two Labor vacancies. This distorted Senate then twice rejected 21 bills and a Constitution Alteration (Simultaneous Elections) referendum proposal which the House of Representatives had passed. The Senate never voted on the two Appropriation Bills but it carried resolutions by 29 votes to 28 to defer a vote on them till the Government undertook to hold an election for the House of Representatives - I emphasise, for the House of Representatives alone. This was the challenge, this was the arrogance of October/November 1975. It was never a genuine constitutional crisis, testing the constitutional powers of the Senate in regard to money bills.

During the lunch adjournments on 11 November 1975 Governor-General Kerr dismissed me and installed Malcolm Fraser on condition that Fraser advised him to dissolve both Houses on the ground that the Senate had twice rejected the 21 bills. If Kerr had believed for a minute that this rejection was a genuine ground for a double dissolution, he would have insisted that Fraser undertake, if he won the election, to reintroduce and support the 21 bills. If Kerr had been in the least competent he would also have submitted the Constitution Alteration (Simultaneous Elections) proposal to the electors on the same date as the elections.

I might interpolate here that, ever since, many Lobby diners and other pundits have speculated that the ALP could have taken action in the Senate to frustrate Kerr's installation of Fraser as Prime Minister. They asked why the Government did not adjourn the Senate before the Appropriation Bills were put to a vote. It would have made no difference. At 2.19 p.m., the Senate received a message from the House of Representatives calling on it to pass the two Appropriation Bills without further delay. Senator Wriedt, the Leader of the Government in the Senate, moved that the Bills be passed forthwith. They were passed. At 2.24 p.m. the President of the Senate suspended the sitting until the ringing of the bells. If the Bills had not been passed, Fraser would simply have advised Kerr to swear in Reg Withers, now the Leader of the Government in the Senate, as a minister. Withers would then have asked the Clerk of the Senate to ring the bells at, say, 4 p.m. Wriedt has explained:

It has always been a convention of the Senate that, if the Chamber was not adjourned to a specific time, then the Government has the prerogative to call the Senate to sit at a time it nominates. The new Government would have had a majority of one, if needed, but, as they were Labor Party Bills, it is unlikely that the Labor Senators would have voted against their own legislation.

Fraser soon realised that his Government could be forced to premature House of Representatives elections in the same way as my Governments had been. Accordingly, on 21 May 1977, his Government submitted the Constitution Alteration (Simultaneous Elections) proposal and a Constitution Alteration (Senate Casual Vacancies) proposal to the electors. Both proposals were strongly supported by the ALP. The first proposal obtained a majority of 62.22% of the votes overall but a majority in only three States, New South Wales, Victoria and South Australia. The second proposal obtained a majority of 73.32% of the votes overall and a majority of votes in all six States. The first proposal would have obtained a majority in the five mainland States if it had been submitted on the date of elections for the Federal Parliament. To Fraser's disgust, Premiers Joh Bjelke-Petersen and Charles Court felt free to campaign against their Federal colleagues; the proposal was nevertheless supported by 47.51% of the electors in Queensland and by 48.47% in Western Australia.

Here there is a most important, if wonderfully ironic, point to be made about the Fraser referendums of 1977. As well as simultaneous elections, he proposed that a casual vacancy in the Senate must be filled by a person of the same party as the departed Senator. The proposal was carried. It is the only provision in the Constitution which recognises the existence of political parties, the mainstay of parliamentary democracy. It was the lack of such a provision which allowed Premiers Lewis and Bjelke-Petersen to taint the Senate and produce the crisis. That is, at the first opportunity the people were given to pass judgement on the methods of 1975, they said "It must never happen again".

On 27 October 1977 Fraser advised Kerr to hold elections for the House and half the Senate on 10 December. He had made a deal for Kerr to take his new Lady to Unesco in Paris in February 1978. He took care to remove three instigators of the coup d'état before the elections. Ellicott had been removed as Attorney-General on 6 September. Lynch, the Deputy Leader of the Liberal Party, was sacked from the Ministry on 19 November. On 28 November Fraser advised the Queen to issue a commission to Sir Zelman Cowen "to be, during Our Pleasure, Our Governor-General". As soon as Cowen had taken the prescribed oaths and entered upon the duties of the office, the Commission was to "supersede Our Commission dated 26 June 1974" appointing Kerr to be Governor-General. Cowen announced In a special Gazette on 8 December that he had assumed the office. Withers was removed on 7 August 1978 when a Royal Commissioner found him guilty of impropriety in a Queensland electoral redistribution; he never again held office under Fraser.

Money Bills

The double dissolution procedure in our Constitution takes too long to resolve disputes on money bills. Members of the Federal Parliament have themselves to blame for failing to initiate alterations to the Constitution to match provisions in the South African, British and New South Wales constitutions in the early 1900s.

The South Africa Act passed by the British Parliament in 1909 provided that, if the Senate rejected or failed to pass any money bills, they could be considered at a joint sitting of the two Houses in the same session. In the Parliament Act 1911 the British Parliament removed entirely the power of the House of Lords to amend or reject money bills. In 1933 the NSW Constitution Act was amended at a referendum to remove entirely the power of the Legislative Council to amend or reject money bills. The Wran, Greiner, Fahey and Carr Governments could not be forced to premature Legislative Assembly elections by the Legislative Council. In Washington the President, Senate and House of Representatives may all propose different annual Federal budgets. After much wrangling a single budget is passed and all elected persons complete their terms.

In Australia the Federal Parliament should pass a Constitutional Alteration bill for a referendum to remove entirely the power of the Senate to reject or delay money bills.

Nationwide Election Dates

I return to my assertion that the coup d'état would not have occurred if any of the Prime Ministers before me had sponsored constitutional alterations to match the US alteration in 1913. Last Tuesday - the Tuesday after the first Monday in November in an even-numbered year - there were US elections for all executive and legislative positions where the incumbents had reached the end of their six-, four- or two-year terms. The elections were not only for a new President but for 11 Governors, 34 of the 100 Senators, the 435 members of the House of Representatives, the two delegates of the District of Columbia in the House, members of the 50 State legislatures and for judges and local government mayors and councillors in most States. Since an 1845 Act of Congress elections for the President and the House of Representatives have always been held on that date. By consensus all elections for the Governors and State legislatures have been held on that date for over a century. Since the Seventeenth Amendment in 1913 Senators have been elected by the electors of the States on that date instead of being chosen by the legislatures of the States. The only elected officials who are not elected on that date are the Mayor and councillors of New York City and many, but not most, other local governments; they are elected on the Tuesday after the first Monday in November in odd-numbered years.

There is no more urgent task facing Australian politicians than to reduce the multiplicity of elections. The cost of election campaigns is the greatest source of political corruption confronting the Western democracies. Unless there is reform, Australia cannot expect to remain exempt.

The House of Representatives and the Queensland Legislative Assembly are the only Houses of Parliament in Australia which are still limited to three-year terms. In each case the term cannot be extended without a referendum. The maximum terms for all other State Assemblies were extended to four years between 1973 and 1987. In no democracy other than Australia are election dates so frequent and unpredictable. The capricious timing of elections engenders public cynicism and political instability. They should be fixed at four years.

Both Houses of the Western Australian Parliament are elected for four year terms. Elections for both Houses of the NSW Parliament are held on a fixed date every four years. The Victorian Legislative Council has just rejected the Bracks Government's legislation for elections for both Houses to be held on a fixed date every four years.

The ALP goes to the separate Federal and State polls with inconsistent policies. So does the Liberal Party. The buckpassing between Federal and State parliamentarians in Australia is a major reason for electors losing confidence in our politicians. Electors feel that they cannot ascertain which government, Federal or State, is responsible for present conditions and possible changes. The growing crisis in our hospitals, in every State, in every region, has been the most egregious example.

All Parties should now set a goal of holding the elections for all Federal and State Houses of Parliament on a fixed date every four years. They should repeal the section of the Commonwealth Electoral Act 1918 which prohibits State elections being held on Federal election dates.

British-Australian Relations

Great changes were achieved in relations between Australia and the UK at significant stages during the 20th century.

In 1922 Lloyd George and Churchill directed the Governors-General of Canada, Australia, New Zealand, South Africa and Newfoundland to persuade their Heads of Government to resume the war against Turkey. They failed. In 1926 the Imperial Conference decided that the Dominion Prime Ministers could communicate directly with the British Prime Minister and could advise the King on the appointment of Governors-General. In 1930 Scullin insisted that George V appoint an Australian as Governor-General.

In 1946 the Attlee Government proposed to advise George VI to appoint his brother-in-law as Governor of New South Wales. McKell and Chifley insisted that the Secretary of State for Dominion Affairs advise the appointment of an Australian as the Governor.

In 1986 the Prime Ministers of Australia and Britain and the State Premiers agreed to pass the Australia Acts. By this legislation the Premiers gained the right to advise the Queen on the appointment of Governors and the British Privy Council lost the last vestiges of the Australian appeals on which Joseph Chamberlain insisted.

In 1990 the Queen herself took the initiative to have Australian citizens recognised exclusively in the Order of Australia.

Speaking under the auspices of the ANU Law Faculty and in the vicinity of the National Parliament I am bound to expose the continuing failures of leading lawyers and leading politicians in Australia to achieve constitutional changes. They conspicuously failed to ensure that Australia had a resident Head of State. It does not matter whether that man or woman is called a President or a Governor-General. The Queen or her eldest son or his elder son would remain as Head of the Commonwealth.

The Head of State

The debate on the republic referendum exposed the inadequacy of highly placed lawyers. For instance, Justice Ken Handley, a senior NSW Judge of Appeal and currently a judge of the Fiji Court of Appeal, declared:

Ignorance of the model on offer was staggering. Members of the judiciary and the Bar did not know a few weeks before polling that the Prime Minister could summarily dismiss the President.

The worst feature is that the President, who is surely there to protect the constitutional process, is to hold office at the whim of the Prime Minister.

Handley and Flint had either not read or did not understand the texts of vice-regal Commissions. Either way, their intervention was incompetent. They should have had the capacity to acknowledge that the constitutional position has been known to all experienced lawyers who have held or hold vice-regal Commissions, Governors-General Isaacs, McKell, Kerr, Cowen, Stephen and Deane, NSW Governor Samuels, Victorian Governors Winneke, McGarvie and Gobbo, Queensland Governors Mansfield and Campbell, Western Australian Governor Burt, South Australian Governor Roma Mitchell and Tasmanian Governors Burbury and Green.

Equal Suffrage

It is an overriding necessity in Australian democracy and society to have equality in status, and not just equality of opportunity, for all citizens, male or female, whether they are of indigenous or British or other overseas ancestry.

One vote one value was introduced for all Federal, State and municipal selections and elections in the United States by decisions of the Supreme Court in the early 1960s. It was introduced for elections to the Australian House of Representatives when a joint sitting of the House of Representatives and Senate passed the Representation Act in August 1974 and the High Court upheld the act in McKellar's Case in February 1977.

Article 21(3) of the 1948 Universal Declaration of Human Rights and Article 25(b) of the 1966 International Covenant on Civil and Political Rights, which entered into force generally in March 1976, ordain equal suffrage. On 9 October 1985 Lionel Bowen, the Attorney-General, introduced the Australian Bill of Rights Bill, including the words of the two Articles, and three Human Rights and Equal Opportunity Commission Bills. All four bills were passed by the House of Representatives on 14 November and introduced into the Senate on 2 December. Burke, who was seeking reelection in February 1986, put pressure on Hawke to drop one vote one value. On 26 November 1986 amendments were moved to two of the HREOC bills. On 28 November the amendments were carried, the Australian Bill of Rights Bill and the other HREOC Bill were discharged from the Senate Notice Paper and the two amended HREOC Bills were reported to the House of Representatives and accepted by it. These two Bills received assent on 6 December.

Through legislation introduced by Labor Governments there is equal enrolment for all but five electorates in the Queensland Assembly and in all the electorates for the New South Wales, Victorian and South Australian Assemblies and for the Legislative Council of Victoria. Equal suffrage applies in elections to the Legislative Councils of New South Wales and South Australia since each State is an undivided electorate. In Tasmania there has always been equal enrolment in the electoral divisions for the House of Assembly and through bipartisan legislation there will now be equal enrolment in the electoral divisions for the Legislative Council. One vote one value does not apply in the Legislative Assembly and Legislative Council of Western Australia.

The Western Australian Electoral Commission regularly and promptly publishes the best electoral statistics in Australia. The latest statistics are for 30 September 2000. Votes for both the Legislative Assembly and the Legislative Council are worth only half as much in metropolitan areas as in country areas. In metropolitan areas the enrolment for both Houses varies between 22 079 (Perth) and 36 624 (Wanneroo). In country areas the enrolment varies between 9 677 (Eyre) and 16 746 (Mitchell). By contrast, in next year's Federal elections Western Australians will enjoy one vote one value in all their 15 House of Representatives seats.

Nowhere in the English-speaking world are there such unconscionable divergences as in the WA Parliament. It has only one redeeming feature; all members of the Legislative Council are elected for the same four-year fixed term. WA democracy is a monstrous misnomer. The Federal Parliament should enact Lionel Bowen's Australian Bill of Rights Bill. The enactment of international conventions fills gaps in the Federal Parliament's legislative powers, especially in human rights.

Rights of the Child

Mandatory sentencing laws for juveniles were announced by the Acting Premier of Western Australia on 6 January 1992. The WA Parliament was specially recalled to pass the legislation on 7 February. Michael Duffy, the Attorney-General, promptly wrote to the Western Australian Government to express concerns that the legislation could breach the 1966 International Covenant on Civil and Political Rights (ICCPR), which entered into force in March 1976, and the 1989 Convention on the Rights of the Child, which entered into force in September 1990.

At the National Conference on Juvenile Justice in Canberra on 22-24 September 1992 Michael Tate, the Minister for Justice, denounced the laws. He pointed out

while not specifically targeting Aboriginal juveniles, it was also feared that the Western Australian law ran counter to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

Occupational Health and Safety

The International Labour Organisation is the oldest of the United Nations specialised agencies. It was first established by the Treaty of Peace at Versailles in June 1919. Its tripartite structure, based on governments, employers and workers, is the most durable and effective industrial relations body in the world. Its conventions are the only international instruments for which Federal States require the cooperation of their constituent States, provinces or cantons before they can ratify them. On 14 December 1982, the last day that Fraser sat in the Parliament, his Minister for Employment and Industrial Relations, Ian Macphee, tabled six conventions and recommendations adopted by the International Labour Conference in Geneva in June 1981. Speaking for the last time in Opposition, Hawke followed Macphee. He pointed out that my Government had ratified nine ILO conventions in three years; in seven years the Fraser Government had ratified one. He spoke with particular passion on Convention No.155 - Occupational Safety and Health, 1981:

I believe that this is one of the most important conventions ever passed by a Conference of the ILO ... On a totally non-partisan basis, I put it to the Government and to the Minister that they really should bring their very best endeavours to bear to try to get the support of the States and give this Convention the support it needs ... Frankly, I believe there has not been the application of will on the part of the Federal Government to try, in consultation with the States and with persuasion, to bring about the situation where in this country we would have something which would at least approximate the stated objective of this convention - that is, a coherent national policy on occupational safety, occupational health in the working environment.

Enactment of International Conventions

Reith's conduct is a product of sheer prejudice not mere inertia. It accords with Prime Minister Howard's own petty and petulant aversion to the operations of all the UN organisations and committees which monitor and update international conventions. A nation can improve the operations only if it participates in them. Howard and Downer wish to exclude non-government organisations from hearings by the committees. They prefer to cope with submissions and comments by government delegates. They feel that governments can protect each other. It is a cheap shot to say that Australians are governed from Canberra, not New York - or Geneva. If the Federal Parliament enacts an international convention, Australian officials implement it and Australian courts ensure that they do. For instance, the conditions of immigrant and indigenous Australians have been transformed by the 1975 enactment of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the situation of women in Australia has been transformed by the 1984 and 1986 enactments of the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women.

The UN and its specialised agencies usually take four years to draft a convention. They take much more time to discuss and draft it than Australian parliaments take to discuss and draft a statute. On 1 November Foreign Minister Downer gave Colin Hollis MP the names, qualifications, nominating states and terms of the present members of the Committee on the Elimination of Racial Discrimination, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, the Committee on the Rights of the Child and the Red Cross International Humanitarian Fact-Finding Commission. The members and their findings are no less impressive than the members and findings of Australia's courts, tribunals and commissions.

Members of the UN General Assembly are unofficially grouped in African States, Asian States, Eastern European States, Latin American and Caribbean States and Western European and Other States. Australia, Canada and New Zealand are in the last; the USA is not a member of any regional group but attends meetings of WEOG. In several specialised agencies Australia is in other groups. In 1987, when I was a member of the Unesco Executive Board, Australia and New Zealand transferred from WEOG to the Asia and Pacific group. In the Food and Agriculture Organization and the World Meteorological Organization we are in the South-West Pacific group, in the World Health Organization in the Western Pacific group, in the Universal Postal Union in the Southern Asia and Oceania group and in the International Telecommunications Union in the Asia and Australasia group. Australia and New Zealand should consider joining the Asian States in the General Assembly.

I would concur with Malcolm Fraser's comments in The Australian on 28 September:

If the broader application of human rights is to be effective, we must understand that countries such as Australia must open themselves and their records to criticism and judgment. ... If the possession of a vigorous democracy were used to exclude a country from examination by the human rights committee system, the capacity to argue for an expansion and improvement of human rights in other less fortunate countries would be gravely weakened. ... It is a sad commentary of both political parties' view of the Australian public that neither thought its political interests would be best served by a plain, open and unqualified protection of the human rights of all Australians, especially of minorities. ... Criticism of ourselves gives us the right to criticise others and to advance the cause of human rights. We should not resent this process; we should wear it with pride.

Federal parliamentarians have the main responsibility to make the century-old Constitution of Australia more relevant to our region and the new millennium. Only a member of the Federal Parliament can take any of the following steps:

1. a bill to repeal the ban on simultaneous Federal and State elections,

2. a bill to enact an international convention,

3. a referendum proposal for fixed four-year terms for the Senate and the House of Representatives,

4. a referendum proposal to remove the power of the Senate to block money bills,

5. a referendum proposal on the appointment and powers of the Head of State, and

6. a referendum proposal to remove section 44 with its irrelevant and archaic provisions on the disqualifications of members of the Federal Parliament. (There have been half a dozen challenges in the High Court since 1987.)

John Kerr was driven from office, a sad and beaten man. Malcolm Fraser had a prime ministership of lost opportunities. Gough Whitlam was eventually taken to the hearts of the Australian people who knew that an injustice had been done. The public verdict on the three protagonists of 11 November 1975 now seems clear.