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- Article Title: The Dismissal. Whodunnit?
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This is a marvellous book. Bob Browning, an engineer who went to university after his retirement to study history, has produced an analysis of the 1975 constitutional crisis which has no peer in the now bulky literature written about the dismissal of the Whitlam Government. Part detective story, part law treatise, part an essay in historical reconstruction, the book is carefully crafted, sparely written and absorbing throughout. It is going to have a powerful effect on Australian political thinking, because the current generation of Australian politicians will have to come to terms with it, and because for the next ten years at least, university students will be told to work through it from beginning to end.
Browning believes that the Dismissal was unconstitutional, firstly because the proper grounds were not present, and secondly because the ‘reserve powers’ claimed by Sir John Kerr (and on his behalf by others) either do not exist or cannot be shown to exist. Underlying all that is a closely-reasoned presentation of the view that the framers of the Constitution intended that in any contest of wills, the House of Representatives should finally prevail over the Senate and that such an intention is plain from any serious study of the debates and documents of the Conventions. Threaded through the book are a number of themes: that the Constitution was as much a political as a legal document, that lawyers tend to be poor historians, that the virtue of the Westminster system is its flexibility, which is reduced if too many of the rules are written down, and that ‘responsible government’ has a straightforward meaning which ought to have made the crisis of 1975 impossible.
Browning’s is much the best case I have read, and I gained many new insights from him. Not only that, he is on the side of the angels. If there is a consensus about the dismissal it would go something like this: that it ought not to have happened, that even if Kerr had the power he shouldn’ t have used it, that the politicians played the game too hard, that the Whitlam Government should have gone its full time – it was going to be beaten whenever an election was held – and so on. By and large, these are Browning’s views, and they are mine too.
But they are views, not facts or truths. If you hold to the opinion that the Constitution is what its framers intended it to be, that history rules OK, then the Browning version is mightily persuasive. But if we take that view, what happens to the legitimacy of the present Australian system, based on Commonwealth predominance in almost every major sphere of life? That is surely not what any of the framers intended. Is it therefore wrong? Browning would probably say, no: we don’t know what they would have done had they foreknowledge of aviation, telecommunications or the welfare state. Each generation has to be able to adapt to its circumstances, and the Constitution was intended to be flexible enough to make that possible.
I agree (though the High Court generally hasn’t), yet the trouble with that reading is that it doesn’t obviously preclude a Senate’s taking a new view of its own power and prerogatives, encouraged by Constitutional phraseology and by an over-mighty Clerk of the Senate. Wasn’t that a generation adapting to its circumstances? Browning wouldn’t have it, because he believes (probably because of the courses he did in history – I took similar ones) that constitutional history is the story of the reduction in the amount and scope of arbitrary power. It’s a story which goes back to Magna Carta, and its other benchmarks are 1688, 1832 and 1931. To Browning, the Senate’s decision to force the House of Representatives to an election and the Governor-General’s decision to back the Senate rather than the House represent a return towards an increase in arbitrary power, and both were therefore unconstitutional, and wrong.
My guess is that most political scientists (who incidentally have written nothing on 1975 as comprehensive or as wise as Browning’s book) would raise their eyebrows a little at such idealist assumptions. To us politics is about power, and Australian politics is a tough, power-seeking game. Browning is talking about moral rules and ‘understandings’; it’s marvellous, but it isn’t war. In London in 1975 it never occurred to me, as the crisis worsened, that it was unthinkable that the Governor-General would dismiss his Prime Minister. On the contrary, having studied Governor Game’s dismissal in 1932 of Premier Lang, I felt it was a likely option if the Government did appear likely to run out of money, since I had no doubt either that Governors or Governors-General did have that power, or that they could use it. Australian political culture is very much about power and its use, and that affects us all, from Governor-General to the newest citizen. I think it fair to say that many political scientists were not shocked or outraged by the dismissal, though many historians were; but most of the latter were not students of Australian politics.
Nonetheless, I am most grateful to Bob Browning. Idealist or not, it is such a good book, so persuasive, so rich in knowledge, so clear in exposition. Someone should tell him the difference between ‘disinterested’ and ‘uninterested’, and that ‘germaine’ is about Greer, not about relevance. But had I spent my working life as an engineer and then after a bachelor’s degree written half as well as he has in a field where at least three other disciplines have established claims, I should count myself blessed.
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