London, 18 November 1975
Confidential
The Australian Constitutional Crisis
1. Ministers may wish to be aware what effect the action of the Governor-General of Australia in withdrawing Mr Whitlam’s commission as Prime Minister may have on constitutional relations between Britain and Australia.
2. The Governor-General of Australia represents Her Majesty The Queen in right of Australia. He is appointed by Her Majesty solely on the recommendation of Her Australian Ministers. His action in withdrawing Mr Whitlam’s commission as Prime Minister of Australia was a matter of interpretation of the Australian constitution. In none of these matters do British Ministers have any locus standi.
3. To this extent the Governor-General’s action in itself is unlikely to have any immediate effect on constitutional relations between Britain and Australia. However, it has already given rise to bitter controversy in Australia about the role of the Governor-General. This controversy is unlikely to lead to any significant move towards a republic in Australia but if Mr Whitlam is returned to power, it may be expected once again to bring into question the continuing relationship between the British Government and the Governments of the Australian States. This will not be the case if Mr Fraser is confirmed in office.
4. Whatever the outcome of the election, the controversy over the Governor-General’s action will have to be taken into account by the Secretary of State when he comes to consider what advice he should tender to Her Majesty The Queen in the matter of the alleged misconduct of Sir C. Hannah, the Governor of Queensland. These issues are discussed in greater detail below.
Republicanism in Australia
5. It remains to be seen whether republicanism becomes a major issue in the Australian election campaign. At the moment the main thrust of the dispute appears to be concentrated on whether the Governor-General’s action was or was not justified and whether or not the Senate should retain the right to reject money bills. Since it is clear that Sir John Kerr did not consult The Queen before dismissing Mr Whitlam, he, rather than Her Majesty, is likely to continue to bear the brunt of the criticism surrounding his action. Mr Whitlam is reported to have said that if he were returned to office the Governor-General’s powers would be drastically curbed, and that no Governor-General would ever again be able to dismiss an Australian Minister. But when asked whether recent events would bring Australia closer to a republic, he replied ‘You know I am too far committed to the Monarchy’. This sentiment is probably shared by the majority of his supporters and a good many other people in Australia as well.
If Mr Whitlam Wins
6. If Mr Whitlam is returned to office, he will, as indicated above, seek to restrict the Governor-General’s power. He may also be expected to seek to limit the powers of the Senate to withhold supply and, parallel with this, to resuscitate his earlier attempts to abolish the quasi-colonial relationship which continues to exist between Australian States and The Queen in right of the United Kingdom and hence the Government of the United Kingdom. The first two aims would require amendment of the Australian Constitution in which British Ministers would in no way be involved. The third, however, would require formal action in the UK to repeal certain UK legislation and to amend or rescind Royal Instructions issued by HM The Queen in right of the United Kingdom. Before such action could be taken we would need to be satisfied that it was generally acceptable in Australia. This raises great difficulties because of the inherent conflict between the interests of, on the one hand, the Federal Government, and on the other, the six State Governments. From our point of view a referendum in Australia would be the most satisfactory way of dealing with the problem since it would not be open to subsequent legal challenge. An equally acceptable alternative would be use of the ‘request and consent’ procedure contained in Section 4 of the Statute of Westminster of 1931, under which UK legislation could be passed at the request and with the consent of the Australian Government and Parliament and with the agreement of the six Australian States. However, in present circumstances Mr Whitlam is unlikely to be able to achieve what he wants through these procedures. He may therefore be expected to renew his attempts to get British Ministers to take action on the basis of a request from the Australian Government and Parliament alone. Even if appropriate legislation were passed by the Australian Parliament and survived challenge in the High Court of Australia, UK Ministers could still be faced with difficult political and legal decisions.
If Mr Fraser Wins
7. If Mr Fraser is confirmed in office, these issues, which have dominated Australia/UK relations for the past two and a half years, are likely to become dormant (as they were for very many years before the ALP Government came to office). Mr Fraser is firmly in the States’ camp and, if anything, seems prepared to augment their role and powers. In September, he and the Premiers of the four non-Labour States boycotted a meeting of the Constitutional Convention (an all-party body traditionally attended by delegations nominated by the Australian and State Governments which considers constitutional reform) and held a rival meeting. Mr Fraser said then that too much power had swung towards Canberra. Indeed, a Liberal/Country Party Coalition Government would attempt to redress the balance by apportioning a fixed share of personal income tax revenue to the States, somewhat on Canadian lines. (This proposal contrasts with the existing system whereby the Australian Government levies income and company tax and at an annual—and habitually acrimonious—meeting with the State Premiers decides on the amount of federal subventions to the States.) Under Mr Fraser, therefore, we would not expect any attempt to bring about changes in the remaining constitutional links between the State Governments and the UK Government without the concurrence of the State Governments themselves.
Alleged Misconduct of Sir C Hannah, Governor of Queensland
8. As a consequence of the quasi-colonial status of the Australian States, the Governors of such States are appointed by The Queen in right of the United Kingdom on the advice of the Foreign and Commonwealth Secretary. It follows that it is for the Foreign and Commonwealth Secretary to advise Her Majesty on petitions for their dismissal. We still await Sir C Hannah’s own account of the incident which led to such petitions being submitted in his case. 1 Meantime he has submitted a request from the Premier of Queensland that his (i.e. Hannah’s) terms of office be extended for a further five years from May 1977. Since the role of the Governor-General is a major issue in the forthcoming election in Australia, action on any decision concerning the future of Sir C Hannah as Governor of Queensland will have to be deferred until after election day ( 13 December).
1 Air Vice-Marshal Sir Colin Thomas Hannah was an Australian air force commander and Governor of Queensland, 1972–77. By late 1975 he was involved in controversy. Following a number of incidents which attracted adverse publicity, at a Brisbane Chamber of Commerce luncheon on 15 October Hannah criticised the ‘fumbling ineptitude’ of Whitlam’s government for placing Australia in ‘its present economic state’. Convinced that Hannah lacked political impartiality, the Commonwealth Government advised the Queen to revoke his dormant commission to serve as Administrator in the event of the absence or incapacity of the Governor-General. The Queensland Premier, Bjelke-Petersen, stated publicly that he wanted Hannah’s term extended, but it was allowed to expire on 20 March 1977. For a discussion of the Hannah controversy, see Twomey, The chameleon crown , pp. 62–68.
[UKNA: FCO 24/2079]