OPINION: Reflections on the 1975 constitutional crisis

THE dismissal of the Whitlam Government in November 1975 highlighted the fragility of our parliamentary and constitutional system and the danger that, if the various constitutional norms that protect that system are ignored, the democratic system itself can be weakened.

The real villains in the whole affair were two State Premiers who went against a critically important constitutional convention. If they had not undertaken these acts of constitutional impropriety it is highly likely that the crisis would never have occurred.

Since 1949 the convention had been that if a Senator died or retired mid-term they were to be replaced by someone from the same party or grouping.

In February 1975 Labor Senator Lionel Murphy resigned and was subsequently replaced by a non-Labor Senator – Cleaver Bunton.

This convention breaking decision by the NSW Premier (Tom Lewis) reduced Labor to 28 seats in the Senate.

Similarly, in June the Queensland Premier (Joh Bjelke -Petersen) refused to appoint Labor’s nominee to the Senate following the death of Bert Milliner.

The appointment of these two non-Labor Senators was to prove decisive when the Fraser led Opposition voted to defer discussion of the Supply Bills on October 16 1975.

The important point to note here is that the Senate, as constituted in late 1975, was illegitimate.

The Senate that voted to defer the Supply Bills was not the Senate that the Australian electorate voted for in May 1974.

It was a tainted chamber that did not reflect the expressed will of the people as per the ballot box result 17 months earlier.

Had established convention been followed Fraser would not have been able to put Whitlam in the position where he could not guarantee Supply and it would have been highly unlikely that the Governor-General would have thought it necessary to intervene (Kerr dismissed Whitlam on 11 November) in the democratic functioning of the parliamentary process.

Just 16 months after the Fraser Coalition won the December 1975 Federal election a constitutional referendum (initiated by the Fraser Government) was overwhelmingly passed to amend the Constitution such that casual Senate vacancies were now mandated to be filled by Senators from the same party.

Obviously, the events of 1975 alerted even the beneficiaries of the convention breaking behaviour of the need for this constitutional reform.

It should be noted that, although it is now a legal requirement that casual Senate vacancies be filled with appointees from the same party, there is no expressed time limit as to how long it takes to make that appointment.

Apart from the 1977 constitutional change related to casual Senate vacancies no substantial reforms have been made that would likely lessen the chances of a similar crisis happening again.

Perhaps now is the time for serious consideration to be given to the following:

– the adoption of a convention such that the Senate can only delay Supply Bills (say for two months) not reject them or delay them indefinitely

– the adoption of a convention such that a casual Senate vacancy must be filled by the relevant State government (say within 30 days) of the relevant vacancy being formally announced.

These two changes would go a long way towards lessening the chances of a repeat of the 1975 crisis.

Greg McIntosh was a Political Science Fellow at the Federal Parliament and a senior researcher with the Commonwealth Parliamentary Research Service. He is now retired and lives in the Camden Haven.

By Greg MCINTOSH