Although
only five-years-old at the time of the Dismissal, my father was ALP
Member for Adelaide and one of Whitlam’s backbenchers, so I have vivid
memories of the 1975 “Shame, Fraser, Shame” campaign and the arguments
down the years of the propriety and legality of Whitlam, Kerr and
Fraser’s actions. When I reached law school, the arguments were raised
again and thrashed out again (and again). If there’s a view on the
Reserve Powers, I’ve probably read it – twice. From Doc Evatt to Eugene
Forsey to Kerr and Whitlam themselves and all the latter day legal
authorities and commentators, I’ve seen them all.

There is
pretty much a consensus now that the actions of Kerr were (as F. W.
Maitland, the great nineteenth century Cambridge University
constitutional law professor, might put it) “legal but not
constitutional.” (That is the actions were against constitutional
convention but allowed by the written Constitution.) Were the actions
appropriate? That’s another question.

However, in all my
reading, I’ve never seen it commented upon or pointed out that, when
the Senate finally passed and Kerr assented to Treasurer Bill Hayden’s
appropriation bills (after Whitlam’s sacking), Kerr and Fraser and the
Senate were committing a fraud on the House of Representatives.

The
House of Reps had passed those bills to authorise the spending of
moneys for the purposes of the Whitlam ministry, not any other
ministry. When Kerr sacked Whitlam and appointed Fraser it was
expressly because Whitlam could not guarantee parliamentary supply and
Fraser could. But Fraser had no ability to gain supply from the House
of Reps. He could only govern on the basis of Hayden’s appropriation
bills. Had the House of Reps been somehow able to withdraw its consent
to the bills before Kerr gave his assent, Kerr and Fraser would have
been stuffed.

It is only a moral argument, not a legal one, but
it has power. As recently as Monday on ABC Radio’s AM Fraser said “You
can go to all the legal precedents in British constitutional law, and
they will all be as I’ve described, all of them. The one thing you
don’t do, the one thing you have not been able to do in British history
since Charles II was to tough it out, govern in defiance of Parliament
and go on spending money that has not been authorised by Parliament and
there’s no conflicting legal advice on that issue.”

Yet, that
would have been the very position Fraser would have been in had he
given the House of Representatives a new, fair vote on his
administration. Without Hayden’s appropriations, supply would have run
out during the election campaign and Kerr and Fraser would have had to
illegally spend money to govern, the very thing that Whitlam was sacked
for thinking about, but not actually, doing.

Academic, you might
ask? Well, actually no. As has been pointed out in this anniversary
week by David Marr and others, if the ALP (miraculously) won the next
election, they would most likely face a hostile conservative Senate who
could block supply again.

The analysis above leads to a very
simple solution that an ALP government could use to prevent a 1975
event ever happening again.

The solution: Specify in the
appropriations bills that appropriations are only authorised under that
law while a specified ministry (ie “the one made up of Beazley, Swan,
Rudd … etc”) remains in office. (A mechanism for retirements and
other vacancies could be provided for).

In this way, if a
ministry which has the confidence of the House of Representatives was
sacked, the new ministry appointed would have to obtain supply straight
away, even before an election were held. As would be proper. The vote
of confidence could also be the vote of supply.

Secondly, why
have a new appropriation every year? The Constitution doesn’t require
it. A new ALP government should, as soon as it gets into power, pass
appropriations for the ordinary services of government covering at
least three and a half years (until the next parliament after the next
general election can meet). How could a Senate block the supply of a
government newly elected by the people? It would be on very thin ground
and risking a double dissolution if it did.

If the executive
government needs more money during its term (to buy a battleship, say,
or start a new welfare program), the House of Reps can pass a new bill
for that purpose. The Senate has the power and option to block it (and
risk triggering a double dissolution), but they won’t be able to bring
down the government.

Simple and legal. Plus we don’t have to enter that dismal swamp that is the reserve powers of the Governor-General.

And
finally, does any one know why no-one in 1975 simply pointed out that,
if the money ran out, the government should simply go into an
American-style government shutdown? Our Constitution is half based on
the US Constitution. I’ve been in the USA twice when this has happened
(National Parks and Post Offices are closed etc). It is usually a fight
between a President of one party and a house of Congress of another. In
the US, these are political crises, not constitutional ones. One side
always eventually gives in (ie Clinton versus Gingrich where Gingrich
blinked) or a compromise is found. If only Kerr had focused a little on
US politics and little less on UK pomp and ceremony.