Letter from Sir John Kerr

Letter dated 30 September, 1975

In this letter, Sir John advises that the Attorney-General has said privately that he was of the clear view that the Senate had the legal power to reject the Appropriation Bills. He also raises the fact that the Prime Minister had spoken to him about an early half-Senate election.

PERSONAL AND CONFIDENTIAL

Government House,
Canberra. 2600.

30 September 1975.

My Dear Private Secretary

I had an interesting conversation yesterday with the Prime Minister about the current political and constitutional problems on which I should report to Her Majesty to bring her up to date.

The Prime Minister does not seem to be taking the view any longer that he could present to me Appropriation Bills which had been rejected by the Senate and ask for Royal Assent. He has not said so publicly and a lot of discussion still goes on in the Press about the impropriety of doing so and arguing that I should refuse under such circumstances.

I really do not think this is likely to happen.

The Attorney-General said to me today privately that he was of the clear view that under Section 53 of the Constitution, the Senate has the legal power to reject the Appropriation Bills and that such Bills must be massed by the Senate before they can be put before the Governor-General.

The Prime Minister has, however, evolved yet another tactic which he is trying out publicly. It was mentioned for example in today's "Melbourne Age". He told me about this tactic yesterday.

Mr Whitlam, if he were defeated in the Senate, says that he would ask me for what is called a Half Election of the Senate. There are ten senators from each State and half of them retire every three years, the full term for each senator being six years. Those who are to cease to hold office on 30th June 1976 have to be replaced as a result of a new election held between now and the end of July 1976. Frequently, such an election has been hold in the preceding December, sometimes to enable the election to coincide with an election for the House of Representatives and at other times as a separate Half Senate Election.

The election of half the Senate, which can be held at any time from now onwards, is not in any way connected constitutionally with the question of the Appropriation Bills. Mr Whitlam's tactic is to say that if the Senate rejects the Bills the Senate should be the House to face the people and as a Half Senate Election is due that is what he would recommend.

There is a possible difficulty for him in this approach because the Senate being regarded as the State's house, each State enjoying equal representation, the writs for a Senate election are issued by the Governors of the States at the request of the Governor-General in Council. Things are so complicated here as between the States and the Commonwealth that the Prime Minister believes it to be possible that one of the State Premiers, at least, might refuse to allow his Governor to issue the writs at the time requested. This aspect of the matter has not been worked out. The Prime Minister believes that the writs will probably in fact be issued but he has to give some thought to the possibility of a revolt in one or more of the States.

The two States likely to be mainly concerned are New South Wales and Queensland.

Normally, five senators would be elected from each of these two States but as there is a casual vacancy which has been filled in each of these two States, six senators will have to be elected. The Prime Minister believes that the Labor Party, which he concedes would, out of five senators, get only two elected in the present political climate, will get three out of six. The reason for this is that proportional representation and voting operate under the electoral laws for the Senate.

In this way he believes that Senators Bunton and Field, who are filling casual vacancies, will be eliminated and two Labor senators will take their place. Normally speaking, senators elected in the Half Senate Election take office from the 1st July next following the election. In New South Wales and Queensland this would apply to the five senators being elected in each State to fill the ordinary vacancies which occur on 30th June 1976. But the two senators elected to fill the casual vacancies at present occupied by Senators Bunton and Field would take office immediately on the declaration of the poll.

I asked the Prime Minister what he would do for supply whilst awaiting the Half Senate Election. He said, first, that particular Appropriation Bills relating to particular matters such as the Commonwealth's overseas debts would be presented to the Senate and some of these would doubtless be passed, but he accepts the position that other Appropriations would inevitably not be agreed to, if the Opposition once makes up its mind to refuse full Appropriations, and that therefore for the period up to December, if the Opposition remained solid on this point, the Commonwealth would be unable to meet its obligations.

I asked him whether he thought that Mr Fraser would grant him temporary supply until after such a Half Senate Election. Whilst thinking this might be possible, he was very doubtful about it. He realised that there would be a profound constitutional crisis when the money started to run out in early November and from then until any such election in early December, but he says he will certainly not recommend a double dissolution of the House of Representatives and the Senate; on the contrary, he would call for a vote of confidence from the House of Representatives and would argue to me that he is entitled to retain his commission for as long as he holds the confidence of the House of Representatives, despite his failure to obtain supply.

I should say, incidentally, that it is believed that the Appropriation Bills will go to the Senate on 14th October. It should be clear between then and the end of October what is going to happen. Everything I have so far said is, of course, dependent upon what Mr Fraser decides, but so far he has continued to maintain his own counsel though he is obviously under very great pressure to do what he can to bring the Government down.

The two Ministers at an Executive Council Meeting today expressed to me their own private views that supply would probably be denied. However, this still remains to be seen.

The Prime Minister says that, if he can get through until after a Half Senate Election is over, he will then re-present the Appropriation Bills to the Senate. If they are rejected again he would then probably advise a double dissolution but says that the ensuing election could not take place until February 1976.

The effect of all of this on our trip to London is disturbing from my point of view. We are planning to leave Australia on 3th November for Canada and to arrive in London on 11th November.

If there is a real constitutional crisis involving the question of a Half Senate Election at a time when even temporary supply is not available I shall be forced, of course, to stay at home to deal with it.

I am very sorry indeed that things are developing in this way but am still hopeful that one way or another constitutional stability can be achieved during November.

Naturally I shall keep Her Majesty fully informed as to what happens and hope that she will understand the dilemma in which I find myself.

Please assure Her Majesty of my continued loyalty and humble duty.

Yours sincerely,

SIGNED  John R Kerr

Lieutenant Colonel the Right Honourable Sir Martin Charteris, K.C.B., K.C.V.O., O.B.E.,
Private Secretary to The Queen,
Buckingham Palace,
LONDON ENGLAND
PERSONAL AND CONFIDENTIAL