The University of Sydney Law School and
the Australian Association of Constitutional Law
4TH GEORGE WINTERTON MEMORIAL LECTURE
14th February 2013: Banco Court, Supreme Court of New South Wales
Professor Geoffrey Lindell AM
“Judicial Review and the Dismissal of an Elected Government
in 1975: Then and Now?”
This lecture series is made possible by the Winterton Memorial Fund. The 2013 Lecture was
supported in particular by Corrs Chambers Westgarth, Lawyers. Enquiries about the Fund
may be addressed to the Convenor of the Lecture Series, Professor Peter Gerangelos at the
University of Sydney Law School.
Sydney Law School: 4th Winterton Lecture, 14th February 2013: Professor G. Lindell.
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About the Speaker
Geoffrey Lindell, is an Adjunct Professor of Law at the Adelaide University and a Professorial
Fellow at the Melbourne University, and was an Adjunct Professor of Law at the Australia
National University until 2010. Before his retirement as a full time academic in 2002, he
held senior academic positions at the Australian National University and later the Melbourne
University. He has taught and published widely in the field of Australian constitutional law.
He has assisted in some major reviews of the Australian Constitution, by serving as a
member of the Distribution of Powers Advisory Committee to the Constitutional
Commission (1986 - 1987), and acting as a consultant to the Australian Constitutional
Convention (1975 - 1985). He has provided (and continues to provide) legal and
constitutional advice to governments and parliaments as well as having a standing retainer
with the House of Representatives. He also appeared as counsel in two major High Court
constitutional cases. He was, until 2002, the inaugural Secretary of the Australian
Association of Constitutional Law, a body he helped to form and was a co-opted member of
the Council of that Association during 2005. Last year he was made a Member in the General
Division of the Order of Australia for his service to legal education as an academic,
particularly in the area of Australian constitutional law and through a range of professional
associations.
Professor Lindell‟s interest in the topic he will address stems from a long standing
interest in responsible government and also more broadly the study of the subject of
“justiciability” which began with the successful submission of his two volume LLM thesis
entitled: “The Justiciability of Political Questions under the Australian and United States
Constitutions” (1974). He is also the author of the entry on the same subject in the Oxford
Companion of the High Court of Australia. Although it may not be customary to do this on
such occasions, I would like to mention that I have it on good authority that Mrs Elizabeth
Lindell, who is with us tonight and to whom he feels very much indebted for the loving
support and understanding she has shown him throughout their marriage, had the
unenviable and laborious task of assisting in the proof reading of his thesis.
~
Sydney Law School: 4th Winterton Lecture, 14th February 2013: Professor G. Lindell.
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4th George Winterton Memorial Lecture 2013
“Judicial Review and the Dismissal of an Elected Government
in 1975: Then and Now?”
Delivered by Professor Geoffrey Lindell
(without recital of headings, sub-headings or footnotes)
1. Introduction
(i)Tribute to George
Chief Justices, Justices and Ladies and Gentlemen.
It is a great privilege and pleasure to deliver a lecture in honour of a close friend and
distinguished academic lawyer, the late Professor George Winterton. I join with the many
others who have paid him richly deserved tributes for his excellent scholarship, teaching and
other contributions to Australian public life and the law. I again place on record the warm
and genuine encouragement he provided me in the pursuit of my writing and research.
Like his family and friends, I continue to feel sad about his passing after he lost his
courageous battle with illness – I miss very much the ability to discuss with him, sometimes,
I must confess at inordinate length late into the night, constitutional and other issues of
mutual interest and concern. It is pleasing to see in the audience members of his family - in
particular, his loving wife Ros who provided him with such splendid support throughout his
life and also of course George‟s brother, Dr Peter Winterton.
It is appropriate at this point to pay a tribute to Professor Peter Gerangelos who, with
the support of successive Sydney Law School Deans, donors to the Law School and the
administrative support staff, has and have, ensured the establishment and continuation of
this important lecture series. I am glad to have a chosen a topic which involves issues which
were central to George‟s interests.
In addressing that topic for tonight‟s lecture I shall take us on what Hobbit film goers
may recognise as an unexpected journey!
(ii) The topic
When the Whitlam Labor Government was dismissed in 1975 it was widely assumed that
judicial review was not available to challenge the validity of that dismissal. Since that time
Sydney Law School: 4th Winterton Lecture, 14th February 2013: Professor G. Lindell.
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developments have occurred both in Australia and elsewhere which may require us to revisit
the correctness of that assumption. It has been questioned whether conflicts of this kind
should be resolved by a pronouncement of a court.1 I will be suggesting tonight that if the
courts resolve such conflicts in Australia it will be because of what has happened since 1975
in two major areas of public law.
The first relates to developments in administrative law which have undermined the
assumption that the normal rules which govern the exercise of discretions vested in ordinary
government officials and bodies do not apply to those vested in a Vice-regal representative. 2
The second relates to developments which may have had the effect of converting the core
aspects of the conventions of responsible government into judicially enforceable rules of law.
I intend to address whether in the light of such developments the High Court would, and
should, intervene to review the legal validity of the dismissal of an elected Government as a
result of the Senate blocking Supply. 3
(iii) Two issues
The legal soundness of any challenge to such a dismissal will likely turn on two specific
issues.
The first is whether, if it was alleged that the dismissal breached the rules of
procedural fairness, a court would apply to that dismissal the principles of administrative
law which apply to ordinary governmental officials or perhaps some other implied and much
narrower principles which are more appropriate to regulate the exercise of constitutional
prerogative powers.
The second is whether a court would review and enforce some of the rules of
constitutional convention which are derived from the principles of responsible government
as modified in their application to the Australian federal setting.
In both cases I am not so much concerned with whether those rules or principles
were actually breached in 1975 or indeed would be now, if the situation should be repeated
today. Rather, my concern is whether they apply so as to make any alleged non-compliance
with them by the Governor-General susceptible to judicial review.
(iv) Domestic and comparative developments
The lecture is in part prompted by judicial developments in both Australia and elsewhere
particularly in Papua New Guinea and other countries in the Pacific which may result in
S de Smith and R Brazier, Constitutional and Administrative Law (7th ed, 1994) at p 37.
An assumption found in the Australian Communist Party Case (1951) 83 CLR 1 at pp 178-180, 221-2 and 257-8.
3 A question which I first addressed in part in Geoffrey Lindell, “Responsible Government and the Australian
Constitution – Conventions transformed into Law?”: ANU Centre for International and Public Law Law and
Policy Paper No 24 (Federation Press, 2004) esp at pp 20-6.
1
2
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courts having to resolve, as already indicated, conflicts over the “reins of power” to quote the
phrase once used by Professor Stanley De Smith. 4
2. Justiciability
As Professor Winterton once reminded us, the first five justices of the High Court observed
in the Governor of South Australia Case decided in 1907 5 that the dismissal of Ministers by
a Vice-regal representative “could not be reviewed by any authority but the Sovereign”. The
question is whether this was still true by 1975 and, if so, is it still true today. I have spent a
lifetime contemplating the concept of „justiciability‟ and its opposite, „non-justiciability‟ –
terms that computer word processing programs still stubbornly refuse to recognise.
As I have had occasion to explain before, it can mean different things in different
contexts which makes it important to know which meaning is intended. For present
purposes it will suffice to repeat that those terms may refer to whether, as a matter of strict
law, a court has authority to determine an issue, or whether an issue is suitable or fit for
judicial resolution – in short the difference between “is” and “ought”.
These different meanings are not unrelated. For whether a court ought to deal with
an issue may well have an important bearing on the way in which a court will (and should)
expound the relevant principles of law to avoid the determination of issues considered unfit
for judicial determination. So far as the first sense is concerned, I have always believed in the
utility of recognising that an issue may be non-justiciable by reference to three analytical
grounds.
First, a court may lack jurisdiction to deal with an issue in the narrow sense –
because of the subject matter of the dispute or the nature of the parties involved, or because
of the court‟s inability to grant appropriate judicial relief. 6
Secondly, it may be argued by some that the court has jurisdiction but is not obliged
to exercise it. I believe that the soundness of this argument is open to serious question if it is
meant to suggest anything more than the exercise of the traditional discretions attached to
the grant of prerogative writs and the forms of relief grounded in equity.
Thirdly, even if a court has and is willing to exercise jurisdiction, it may be
unnecessary for a court to determine the issue because the application of the relevant
principles of law does not depend for their determination on its resolution. This may for
Above n 1, ibid.
R v Governor of South Australia (1907) 4 CLR 1497 at p 1511(obiter) referred to in George Winterton:
Parliament, the Executive and the Governor-General above (1983) at p 127.
4
5
The sense used by Diplock LJ in Buck v Attorney-General [1965] Ch 745 at pp 769 – 770 and as to the High
Court see eg Con ss 75 and 76 when read with the provisions of s 30 of the Judiciary Act 1903 (Cth).)
6
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instance be because the parliament or government has acted within the scope of its legal
powers and there is no relevant legal limitation on the exercise of those powers. 7
I will only be concerned with the first and third of these three separate grounds. I
have never supported the second ground which in effect rests on a discretionary view of the
judicial function leaving aside the already acknowledged discretion which attaches to the
grant of various kinds of judicial relief. I have always believed those discretions should be
directed to the conduct of the individual parties to the dispute and the particular
circumstances of the case rather than whether certain aspects of the law can never be
judicially enforced regardless of who sues and whatever the circumstances.
I believe a Prime Minister who has been, or is about to be, dismissed would be able to
invoke the original jurisdiction of the High Court to deal with a matter arising under or
involving the interpretation of the Constitution” (under sub-s 76(i) of the Constitution and
sub-s 30(a) of the Judiciary Act 1903 (Cth)). It should be possible for the same court to
grant a declaration to such an aggrieved person as having a direct and material interest in
the matter sought to be raised.
It is unnecessary to deal here with whether the appropriate defendant to be sued
should be the Governor-General, or the Attorney-General of what would, presumably, be a
caretaker government, or even the Commonwealth itself, since I believe at least one or other
of these possibilities is likely to be accepted.
Such actions have become more frequent in countries to our North and in the Pacific
which have inherited British systems of public law after they gained their independence.
Perhaps the most recent instances have been in Papua New Guinea and Fiji.8 The actions
have also dealt with dissolutions of the parliament.9 This development contrasts with earlier
British dicta which treated questions relating to the dismissal of Ministers and the
dissolution of parliament as not being by their very nature susceptible to judicial review.10 I
will return to that dicta later.
It is true that the Papua New Guinea case of In re [the]Reference to section 19(1) of
the Constitution by [the] East Sepik Provincial Executive, in 2011, evoked the unhappy
The foregoing discussion is taken from the speaker‟s entry under „Justiciability‟in T Blackshield, M Coper and G
Williams (eds), The Oxford Companion to the High Court of Australia at p 391 to which reference was made to
the more extensive writings on the subject.
8 See eg In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154
(Papua New Guinea) ; Kilman v Speaker of Parliament [2011] VUCA 15; [2011] 4 Law Reports of the
Commonwealth 656 and Natapei v Korman [2011] VUSC 72; [2011] 4 Law Reports of the Commonwealth 673
(Vanuatu). See also Republic of Fiji v Prasad [2001] 2 Law Reports of the Commonwealth 743; [2001] FJCA 2
(Fiji), Special Reference No 1 of 1955 [1955] 1 FCR 439 (Pakistan) and Attorney-General of the Republic of
Cypress v Mustafa Ibrahim [1964] Cyprus Law Reports 195 (Cyprus) and see also George Williams, “The Case
That Stopped A Coup? The Rule of Law in Fiji” (2001) 1 Oxford University Commonwealth Law Journal 73;
<http://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/publications/OP_Williams.pdf>
For a notable instance in a case decided by the Privy Council regarding the illegal Smith Rhodesian Government
see Madzimbamuto v Lardner-Burke [1969] 1 AC 645. The parties to the relevant actions in all these cases may
not have been the same as those I have suggested for such an action to be commenced in Australia
9 Cases cited in Law and Policy Paper No 24 above n 3 at p 3 n11.
10 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at p 418 per Lord Roskill.
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spectre of rival Prime Ministers – one recognised by the Supreme Court of that country and
the other by the Parliament. 11 Furthermore,
judicial involvement of the kind I have
mentioned may well be thought by some to open the gate to the application of the doctrines
of necessity and effectiveness which are more usually associated with countries less stable
than our own.
However described and whatever their differences these doctrines involve “legalising
illegality”. They are associated with what the German legal philosopher Hans Kelsen
described as a change in the grundnorm. It is little wonder, then, that in Luther v Borden,12
decided in 1849, the United States Supreme Court refused to entertain an action which
effectively sought to determine whether the existing constitution of the State of Rhode Island
(the so called “Charter Constitution”) was displaced by the adoption of a rival constitution
for the same State. Rival governments had been elected under both of those constitutions
and the case served as possibly the earliest illustration of the American non- justiciable
political questions doctrine. In that case Taney CJ observed:
if this court is authorised to enter upon this inquiry, as proposed by the plaintiff, and it
should be decided that the charter government had no legal existence during this
period of time ... - if it had been annulled by the adoption of the opposing governmentthen the laws passed by the Legislature during that time were nullities; its taxes
wrongfully collected; its salaries and compensation to its officers illegally paid; its
public accounts improperly settled; and the judgment and sentences of its courts in
civil and criminal cases null and void, and the officers who carried their decisions into
operation answerable as trespassers, if not in some cases as criminals.13
Although these considerations cannot be brushed aside or ignored, the attempt by the courts
to avoid involvement does not provide an assurance that the attempt is either likely to be
successful or that it will prevent such tumultuous events ever happening. In the first place to
avoid deciding which government exists in the eyes of the law is in effect to decide in favour
of one of the rival governments. Secondly, the need to apply the doctrines of necessity or
effectiveness will arise regardless, once a court may have to decide a dispute between parties
which will turn on the legal effectiveness of the decrees of a rival government or parliament.
This was illustrated by Luther v Borden itself which involved an action in trespass against a
government official appointed by the existing Charter government.
But perhaps the most important point is the realisation that the problems I have
described will not arise at all if the decisions of the courts are respected and obeyed. That in
In re Reference to Constitution section 19(1) by East Sepik Provincial Executive cited above n 8.
48 U.S. 1 (1849)
13 Ibid 38-9.
11
12
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turn depends on the fidelity shown in any society to the rule of law and the decisions of its
courts. This is what I think ultimately avoids the need to “legalise illegality” and not whether
it is right for the courts to continue to ensure compliance with the law.
The conclusion which I reach, therefore, is that the requirements of jurisdiction and
standing may well be satisfied as long as they are not used as a disguised form of
discretionary abstention which I have never favoured. In my view it is certainly dangerous to
assume that our courts would not find in favour of jurisdiction or would not be willing to
exercise it in an appropriate case which otherwise satisfies all relevant procedural
requirements.
Before I leave this aspect of the matter, I need to say something about a difference of
opinion between Sir Garfield Barwick and Professor Winterton on whether an action to test
the legal validity of the dismissal of Mr Whitlam would have given rise to a justiciable issue.
Sir Garfield denied that it would have been justiciable while Professor Winterton took the
opposite view.
As I have had occasion to mention elsewhere, possibly the difference between the
two views is not as great as it may at first appear. 14 Sir Garfield may have used the term
„non-justiciable‟ in the sense that even if the court had jurisdiction to entertain an action
commenced by the former Prime Minister, his dismissal by Sir John Kerr would not have
given rise to any grounds for legal complaint and the action would for that reason have been
dismissed. This is essentially because the exercise of the power to dismiss Ministers under s
64 of the Constitution was not subject to any relevant legal limitation. This is what I earlier
described as the third ground for explaining why a court may find that it does not have
authority to decide an issue.
Professor Winterton, on the other hand, may have had in mind the first ground I gave
for the absence of such authority. This was the existence of jurisdiction over the subject
matter and the parties and the ability to award the legal relief sought. That question was to
be determined without pre-empting the outcome of any arguments which would seek to
establish the existence of implied legal limitations on the exercise of the power to dismiss
under s 64 of the Constitution. At the same time Professor Winterton may have been
suggesting that arguments for implying legal limits should be accepted by the Court even
though this was - at the time he considered the matter in 1983 - unlikely to occur because of
judicial conservatism.15
Geoffrey Lindell, “George Winterton: Parliament, The Executive and the Governor-General” (1983) 6
University of New South Wales Law Journal 261 at pp 264-5 (Book Review Article) where the source of both
views can be found.
15 Nothing I say here is meant to deal with the question whether assuming Sir Garfield and Professor Winterton
were correct regarding their respective views of justiciability, it was proper for serving members of the High Court
to advise the Governor-General in relation to the actions taken to resolve the crisis over Supply in 1975.
14
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This brings me to what I regard as the real issue. That is whether there are any legal
constraints upon the exercise of the legal power to dismiss Ministers under s 64 of the
Australian Constitution – the issue which will occupy the rest of this lecture.
3. Constraints derived from administrative law
(i) The position in Australia before 1975
I turn to administrative law as the first relevant area of public law from which such a
constraint could be derived.
When Sir John Kerr dismissed the Prime Minister in 1975 he relied on section 64 of
the Constitution which, so far as it is relevant, provides that Ministers “shall hold office
during the pleasure of the Governor-General”. It was understood, at least initially, that the
term “pleasure” signified an absolute discretion while the reference to Ministers in s 64 has
of course always been understood to include the Prime Minister.
There was unsurprising authority which suggested that the rules of natural justice did
not for that reason apply to the exercise of statutory powers which were conditioned on the
pleasure of the officials exercising such powers. 16 But this would not have been the only
consideration which militated against the application of the rules of natural justice. In the
famous Australian Communist Party Case decided in 1951 Sir Owen Dixon and other judges
in that case accepted and followed the assumption that the principles which governed the
exercise of “discretionary powers confided to subordinate administrative officers or bodies”
did not apply to the exercise of similar powers vested in the Governor-General. 17 Although it
was not conclusive, the assumption informed the construction accorded to the legislation
which was successfully challenged in that case. The challenge centred on the conclusiveness
of governmental opinions including those of the Governor-General when those opinions
formed the sole link between the legislation and the constitutional power which supported it.
Finally there was the point that the law relating to the application of the rules of
natural justice to the exercise of prerogative, as distinct from statutory, powers, had yet to
develop by 1975.
Stewart v Ronalds (2009) 76 NSWLR 99 (non-application to the dismissal of a Minister), Coutts v
Commonwealth (1985) 157 CLR 91 (non-application to the dismissal of an air force officer)
17 Australian Communist Party v The Commonwealth (1951) 83 CLR 1, at pp 178-180 per Dixon J, 221-222 per
Williams J and 257-258 per Fullagar J. See also Duncan v Theodore (1917) 23 CLR 510 at p 544 per Isaacs and
Powers JJ, McGowan v Bundaberg Harbour Board [1960] Qd R 5, The Queen v Martin (1967) 67 SR (NSW)
404, Ex parte The Queen ex rel Warringah Shire Council; Re Barnett (1967) 70 SR (NSW) 69 and Benjafield and
Whitmore, Principles of Australian Administrative Law (4th ed, 1971) 130 at p 165 and cf Treasury Gate Pty Ltd
v Rice[1972] VR 148 at p 163 which seemingly approved of the view that “the objection to the doctrine (that action
by the Crown‟s representative is unreviewable) as being contrary to the rule of law is so fundamental that it
cannot be dismissed simply because the doctrine has been applied in a few decisions”: P W Hogg, “The Judicial
Review of Action by the Crown‟s Representative” (1969) 43 Australian Law Journal 215 at p 222 in article which
criticised the immunity doctrine.
16
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While the powers to dismiss Australian Federal Ministers and dissolve the Federal
Parliament have always been contained in the Australian Constitution – a special kind of
statute - such powers originated from English notions of the prerogative. It is against that
background that Sir Garfield Barwick must have assumed that the rules of natural justice (or
indeed any other restrictions) did not constrain the exercise of the power of the GovernorGeneral to dismiss the Prime Minister in 1975.18 The balance of academic opinion pointed in
the same direction. 19
It is true that Professors Sawer in 1977, and Winterton in 1983, suggested that Mr
Whitlam could have challenged the validity of his dismissal on the ground that the GovernorGeneral did not grant him a fair hearing. However the arguments were seen by Professor
Winterton as novel and imaginative. Both he and Professor Sawer thought that judicial
conservatism would probably ensure that for the then foreseeable future the High Court
would be unwilling to review the validity of a Prime Minister‟s dismissal by reference to the
failure to grant a fair hearing. 20
All this suggests to me that, despite the availability of arguments to the contrary, a
cautious and reasonably competent public lawyer would have thought, as did both the
Professors I mentioned, that it was almost certain that the arguments would not have
succeeded in the courts. But the equally, if not the more important, issue becomes what
would be the position now if the events of 1975 were to be repeated today?
(ii) Australian developments since 1975
Since 1975 there have been dramatic judicial developments which make it much more
difficult to rely on the earlier authority which assumed that the principles which govern the
exercise of “discretionary powers confided to subordinate administrative officers or bodies “
did not apply those conferred on a Vice-regal representative. The developments consist of
important High Court decisions in 1978 which affirmed that the normal principles of
administrative law could apply in relation to the exercise of statutory powers conferred on
such representatives albeit subject to some modifications. Those principles related to the
need to exercise those powers in good faith and not by reference to improper or extraneous
Garfield Barwick, Sir John Did His Duty (1983) at pp 83-4
See apart from the views of Professors Sawer and Winterton mentioned below in 20, the view taken by
Professor Zines who did not appear to question the dicta of Sir Owen Dixon as regards the non-application of the
principles which govern the exercise of “discretionary powers confided to subordinate administrative officers or
bodies” in relation to the Governor-General even though this done in the context of considering the power of the
Governor-General to dissolve both Houses of the Australian Parliamen - unlike Professor Hogg and also the
commentator on the paper delivered by Professor Zines‟s, Peter Bayne : Leslie Zines, “The Double Dissolutions
and the Joint Sitting” in Gareth Evans (ed), Labor and the Constitution 1972-1975(1977) 217 at p 237 and 247 – 9.
By contrast, and as Professor Zines pointed out, I like many others, had accepted the Dixon view: Ibid at p 237 n
88.
20 Geoffrey Sawer, Federation Under Strain: Australia 1972-1975 (1977) at pp 148 – 150, Winterton above n 5 at
p 127.
18
19
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purposes 21and also the need to comply with the rules of procedural fairness. 22 This was so
even though in the case of the latter, special procedures might have to be adopted regarding
how a fair hearing could be accorded if the relevant power was conferred upon the Governor
in Council. 23
(iii)
UK developments since 1975
There have also been dramatic judicial developments in the United Kingdom which now
mean that the question is not whether the courts in that country can ever review the way in
which prerogative powers are exercised but, rather, which of those powers are not subject to
such review because they are not thought to be susceptible or appropriate to judicial review.
In other words the prerogative nature of the power is no longer thought to be sufficient by
itself to render it immune from judicial review. The current approach leaves a lot to the
discretion of a judge to weigh and balance the conflicting considerations in determining
whether the subject matter of a prerogative prevents it being subject to judicial review. By
1985 it was still assumed that the dissolution of Parliament and the appointment of ministers
were not susceptible to judicial review. 24
But it may be significant to remember that the dicta in question may have assumed
that the exercise of the relevant powers in the United Kingdom are constrained only by
constitutional conventions – a position which may no longer prevail in Australia as will be
seen later in this lecture. Australia lags behind the United Kingdom in relation to whether
the exercise of prerogative powers – as distinct from their mere existence – are subject to
judicial review by reference to the ordinary principles of administrative law, 25although there
has been one notable instance of such a case decided by the Victorian Court of Appeal in
1995. 26 Moreover it is now dangerous to assume that the High Court will automatically reject
R v Toohey; Ex parte Northern Lands Council (1981) 151 CLR 170
FAI Insurance Ltd v Winneke (1982) 151 CLR 342 and also South Australia v O’Shea (1987) 163 CLR 378.
23 Thus requiring the function of according a fair hearing to be delegated to a committee of its members or the
responsible Minister who would report on written representations made by those affected by the exercise of the
power: FAI Insurance Ltd (1982) 151 CLR 342 at pp 370-1 per Mason J.
24 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at p 418.
25 Before he retired, and in extra-judicial remarks directed to the prerogative mercy, Gummow J sounded what,
may be interpreted, given his influence, as a warning against assuming that the High Court at least as then
constituted would have been inclined to follow British judicial developments regarding the judicial review of
prerogative powers which had not been subsumed by legislation: W Gummow, “Administrative Law and the
Criminal Justice System” – Paper delivered at the Administrative Law Seminar organised by the Law Society of
South Australia: “Administrative Issues in the Criminal Justice System”, held in Adelaide , South Australia on 20
June 2008, at pp 5 – 11.
26 Victoria v Master Builders Association of Victoria [1995] 2 VR 121 where reference was made to the Council
for Civil Services Union Case and also the article by Fiona Wheeler, “Judicial Review of Prerogative Powers in
Australia in Australia: Issues and Prospects” (1992) 14 Sydney Law Review 432 which did not deal with the
position in relation to “constitutional” prerogatives in issue here. Whether the power in question was derived
from the prerogative from the common law generally may be put to one side. It is probably sufficient for present
purposes that the source of the power was not statutory in character.
21
22
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the application of the rules of procedural fairness to powers which are exercised at the
“pleasure” of the person or official exercising them. 27
However the unwillingness to subject the power to appoint (and therefore also
dismiss) Ministers in the United Kingdom has been followed and applied in New South
Wales. In 2009 the Court of Appeal in that State refused in Stewart v Ronalds to accept that
the exercise of the corresponding power conferred by the NSW Constitution on the
Governor, was constrained by the rules of procedural fairness. 28 The High Court has yet to
rule on whether the exercise of the power contained in the corresponding provisions in the
Australian Constitution is constrained by the rules of natural justice.
(iv) Conclusion about administrative law
All of that notwithstanding, there is much to be said in favour of the view that the powers
granted by s 64 of the Australian Constitution, should from a purely moral point of view, be
exercised with reasonable fairness. But the key question remains whether that duty should
be enforceable by the courts so as to assimilate the position of a head of State to that of
“subordinate administrative officers or bodies”.Or is such a duty better left to the
development of constitutional conventions and the political processes?
The answer to the question may implicate and reach into the exercise of powers by
reference to extraneous purposes and good faith and also the powers to dissolve the
Parliament under sections 5 and 57 of the Constitution.29 It will be clear from what I have
said that despite the dramatic changes that have taken place since 1975 in the judicial review
of executive and administrative action, it is doubtful in the present state of the authorities,
whether courts are ready to take the final step of assimilation. Neither can it be confidently
asserted that the taking of the same step is inevitable since some judges may still feel that the
Jarratt v The Commissioner of Police (NSW) (2005) 224 CLR 44 – application of those rules to the exercise of
the power to dismiss a senior police officer appointed at pleasure.
28 (2009) 76 NSWLR 99. The power was contained in sections 35C and sub- section 35E(2) the Constitution Act
1902 (NSW). Nor can the corresponding provisions in the Federal Constitution be seen as a statutory device to
make the Vice-regal representative the decision maker so as to avoid judicial review in circumstances where, if
the decision maker was Minister or a subordinate government official, such review would ordinarily have been
attracted. This was one of the factors taken into account which led to the developments cited above in nn 21-22:
Sir A Mason, “Administrative Review- The Experience of the First Twelve Years” (1989) 18 Fed L Rev 122, pp 124
- 125.
29 One commentator thought that the application of those principles could raise the question whether Sir John
had acted improperly if his concern about his own security of tenure was the predominant or at least one
consideration or motivating factor upon which the dismissal of the Prime Minister was based. This possibility
illustrates the problems that a Court may encounter if the same principles were held to be applicable: James
Thomson “Non-justiciability and the Australian Constitution” in Michael Coper and George Williams (eds),
Power, Parliament and the People (Federation Press: Sydney, 1997) at p 62. Another illustration would be
provided by applying the normal principles of bias if the Governor-General was accused of favouring a political
party of which he was a member when he or she was a member of Parliament.
27
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exercise of such discretionary powers should not be – and for that reason will not be susceptible to judicial review. 30 But even if those rules do not apply is it possible to conceive
of a different and much narrower form of judicial review which will be more appropriate for
the review of the exercise of constitutional prerogative powers in accordance with the
conventions of responsible government? This would involve and be confined to implying a
legal duty imposed on the Governor-General to warn a Prime Minister about the impending
exercise of the power to dismiss the same Minister.31
I now wish to turn to the other area of the law from which a constraint on the power to
dismiss Ministers could perhaps be derived.
4. Constraints derived from Responsible Government
(i) Introduction
The Framers of the Australian Constitution assumed that powers such as the power of the
Governor-General to appoint and dismiss Ministers would be exercised in accordance with
the rules of constitutional convention derived from the British principles of responsible
government. 32 Sir Kenneth Wheare has provided a good working definition of conventions.
According to him a “convention is … a rule of behaviour accepted as obligatory by those
concerned in the working of the constitution.”
33
In the United Kingdom such rules are not
legally enforceable despite the troublesome distinction which exists between their
See the helpful discussion of the potential role of justiciability in restricting the role of judicial review in
administrative law in Robin Creyke and John McMillan, Control of Government Action: Text, Cases &
Commentary (3rd ed, 2012) at pp 59-75 who refer to the leading authorities and articles on the subject including
the views of Sir Anthony Mason in “The High Court as the Gatekeeper” (2000) 24 Melbourne University Law
Review at pp 784 at 787-796.and cf Chris Finn, “The Justiciability of Government Decisions : A Redundant
Concept?‟ (2002) 30 Federal Law Review 239 also referred to in Creyke and McMillan and also Geoffrey Lindell,
“The Justiciability of Political Questions” in H P Lee and George Winterton (eds), Australian Constitutional
Perspectives (1992) 180 at pp 248-250.
31 Any such duty would still give rise to questions about the nature and extent of the warning required. If derived
from the legal enforceability of the core principles of responsible government discussed later, such a duty would
not apply to the dismissal of other Ministers who are dismissed on the advice of a Prime Minister in a non-reserve
power situation.
32 See the authorities cited by me in Geoffrey Lindell, “Responsible Government” in Paul Finn (ed), Essays on
Law and Government: Vol 1 Principles and Values (1995) at p 86 n 47. (Charles Kingston and Garran).
30
Modern Constitutions (1951) at p 179 quoted in Geoffrey Marshall, Constitutional Conventions (1984) at p 7. In
Reference re Amendment of the Constitution of Canada (1981) (1982) 125 DLR (3d) 1 at p 90 the Canadian
Supreme Court adopted the test for determining the existence of conventions stated in Sir W. Ivor Jennings, The
Law and the Constitution (5th ed., 1959), at p. 136:
33
“We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the
precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single
precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a
reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by
it.”
Sydney Law School: 4th Winterton Lecture, 14th February 2013: Professor G. Lindell.
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enforcement and recognition. 34 The same rules did become legally enforceable in some
British Commonwealth countries that obtained their independence after WW II 35
In Australia, and before 1992, my understanding was that leaving aside ss 62 and 64
of the Constitution which made some aspects of responsible government legally binding, the
Australian Constitution was structured to make it possible to permit but not require
compliance with the principles of responsible government. 36 With some exceptions they only
applied according to their tenor ie as mere conventions and not legally enforceable rules of
law.
Conventions had the disadvantages of vagueness and uncertainty and the advantage
of flexibility which allowed them to evolve and develop without reference to the electors
voting at a referendum to amend the Constitution. The failure of the Framers to incorporate
other aspects of responsible government apart from those explicitly incorporated in the
Constitution may suggest that the explicit aspects were the only aspects that were intended
to be legally enforceable. This contrasts with the model of self - government adopted for the
Australian Capital Territory in 1988. 37 But before then, according to the traditionally
accepted view any conventions which surrounded the exercise of the powers of the GovernorGeneral to appoint and dismiss Ministers would not have been legally reviewable or
enforceable in 1975.
(ii) Transformation – general nature and effect
Whatever misgivings I may have, the position may have changed after 1992. Some of the
conventions of responsible government may have become transformed into rules of law so as
to become constitutionally entrenched.38 I need to distinguish here the Canadian Supreme
Court advisory opinion
39
in 1982 which dealt with the practices that governed the
amendment of the British North America Act by the United Kingdom Parliament. It was
acknowledged in that case that the existence of conventions raised a justiciable and not
merely a political issue because to declare the existence of the conventions was essential in
defining the whole content of constitutional law in the traditional British sense. Although
For an interesting example of the distinction see Greiner v Independent Commission Against Corruption
(1992) 28 NSWLR 125 discussed by me in Lindell above n 32 at pp 83-4.
35 See eg Adegbenro v Akintola [1963] AC 614.
34
Lindell above n 32 at p 82. A similar view is taken in Ian Killey, Constitutional Conventions in Australia: An
Introduction to the Unwritten Rules of Australia’s Constitutions ((2009) at pp 10 – 16 who argues for its
continued operation despite the developments that have occurred since 1992. Compare, J Quick and R Garran,
The Annotated Constitution of the Commonwealth of Australia (1900) at pp 706 -7 (“…for better or for worse the
system of Responsible Government as known to the British Constitution has been practically embedded in the
Federal Constitution, in such manner that it cannot be disturbed without an amendment of that instrument.”)
37 Geoffrey Lindell, “The Arrangements for Self-government for the Australian Capital Territory: A Partial Road to
Republicanism in the Seat of Government?” (1992) 3 Public Law Review 5 esp at pp 25-6.
38 Law and Policy Paper No 24 above n 3.
39 Reference re Amendment of the Constitution of Canada (1981) 125 DLR (3rd) 1.
36
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this still involved some modification of the British understanding of conventions, it is
important to realise that their existence was recognised only according to their tenor ie only
as conventions and not as legally enforceable rules.
Be that as it may, it seems highly arguable that the High Court would now be willing
to draw implications from provisions in the Constitution which partially recognise the
system of representative government known as responsible government. An important
implication was drawn from the system of representative government in favour of the
guarantee of political free speech in Australian Capital Television Pty Ltd v Commonwealth
in 1992.
40
The possibility of drawing implications from responsible government was
suggested in the same year in Nationwide News Pty Ltd v Willis. 41 Deane and Toohey JJ in
the same case referred to the possibility of deriving implications from “the general doctrines
of government which underlie the Constitution and form part of its structure” given the fact
that “the doctrine of responsible government can arguably be seen as a (further) main
general doctrine underlying the Constitution as a whole.” 42 Brennan J made similar remarks
in the same case. 43
There are in addition clear remarks in the unanimous judgment of the High Court in Lange v
Australian Broadcasting Corporation44 decided in 1997 which strongly point in the same
direction such as the ample reference made to provisions which either partially recognise
responsible government or those which could not be understood without reference to the
same. 45
There are also the remarks which are cited in the written version of this lecture which
begin by stating “Whatever the scope of implications arising from responsible government…”
(at pp 557 – 9 of the report). In addition the unanimous Court emphasised the legitimacy of
drawing implications from the text and structure of the Constitution which embodied such
institutions of government as representative and responsible government - as long as the
question asked was not what was required by those doctrines but what did the “terms and
structure of the Constitution authorise or require?” 46
Finally, in this connection, and by no means the least important consideration, it is
difficult in principle, to distinguish between the ability to draw implications from
(1992) 177 CLR 106.
(1992) 177 CLR 1
42 At at pp 69-70. Admittedly they were also careful to observe that alternatively responsible government “ can be
seen as a system of government devised to permit observance of the doctrine of representative government in a
constitutional monarchy in which the executive powers are formally vested in a non-elective sovereign”: ibid. The
other doctrines mentioned were federalism and the separation of judicial power and representative government.
40
41
(1992) 177 CLR 1 at p 47.
(1997) 189 CLR 520
45 (1997) 189 CLR 520 at pp 557 – 9.
46 At p 568.
43
44
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representative government and those from the particular kind of representative government
known as responsible government. Against that background, and so far as responsible
government is concerned, perhaps the ultimate test needs to focus on the provisions of ss 62
and 64 of the Constitution which expressly provide for the need for Ministers to be members
of parliament and the Executive Council which advises the Governor – General in the
government of the Commonwealth. That test is whether those provisions can properly be
understood without implying into the Constitution the purpose usually served by such
provisions, namely, to enable the operation of the core principles of responsible government.
Although not conclusive, it needs to be remembered that this was one of the ways
responsible government was recognised in the nineteenth century, most notably in the
colonial constitution of South Australia which served as the model for the corresponding
provisions in the Federal Constitution. 47 It also needs to be remembered that the
requirement in section 64 that Ministers must be members of Parliament within a certain
time so as to be answerable to Parliament is framed in mandatory and not merely permissive
terms.
It will be clear from what I have said that I disagree with the criticism made by
another commentator that my views can best be regarded as interesting speculation rather
than what the law is or is likely to be. 48 If my analysis is sound, it would seem to be highly
arguable that some rules of constitutional convention have now become transformed into
rules of law so as to become constitutionally entrenched. 49 It is a view shared by leading
commentators in their evidence to the Joint Select Committee on the Republic Referendum
in 1999 who thought that the reserve powers and the conventions which regulated their
exercise are subject to judicial review, at least to the extent that they exist for the purposes of
furthering representative government. 50
Constitution Act 1856 (SA) s 32 and Quick and Garran above n 36 at p 711 - who also referred to the similar
position in Victoria and Western Australia - and Winterton above n 5 at p 75. The implication differs from that of
the guarantee of free political speech being implied as necessary to facilitate voting in a representative democracy.
Here the core principles of responsible government cannot be described as being necessary to enable the
provisions of ss62 and 64 to operate. Rather it is the other way around ie those provisions are necessary to enable
the core principles to operate.
48 Killey above n 36 at p 15.
49 As was also recognised by Professor Zines although he treats the rules of constitutional convention derived
from responsible government as legally binding and enforceable only to the extent that they exist for the purposes
of furthering representative government: L Zines, The High Court and the Constitution (5th ed, 2008) at pp 3401. See also the views he expressed in a Submission to Joint Select Committee on the Republic Referendum:
Advisory report on Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations
Committee Bill 1999 (August 1999) at p 47 para 4.25 nn 17 and 18 (“conventions may already have the status of
rules of law”). Professor Winterton favoured the legal enforceability of the main features of responsible
government even before the Nationwide News and Lange cases: see text and note accompanying n 53 below.
47
Joint Select Committee on the Republic Referendum above n 49 ibid where reference was made to the
Transcript of evidence and Submissions received from Professors L Zines, C Saunders and G Winterton.
50
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One of those commentators was Professor Winterton and another was Professor
Zines who I am especially pleased to see in the audience tonight. Once the conventions are
regarded as legally enforceable they can in my view only be changed by formal amendment
of the Constitution under s 128 subject to the principles of progressive interpretation and the
difference between the accidental and essential meaning of constitutional terms despite the
criticisms levelled at that distinction. I have always regarded it as doubtful whether the
Parliament could alter the rules which governed the exercise of discretions vested in the
Governor-General under ss 5, 57 and 64 by ordinary legislation passed under the incidental
power in s 51(39). 51 The principles of progressive interpretation I have mentioned may help
to partially offset the loss of the advantages of flexibility and the capacity to evolve and
develop when the conventions only operated as conventions.
The disadvantage of vagueness resulting from their enforcement as law could be met
by the difference between accidental and essential meaning of constitutional terms and the
emphasis placed in Lange on what the terms and structure of the Constitution prohibit
authorise or require.
The foregoing analysis makes it essential to isolate which principles of responsible
government will be seen as part of the Constitution in the relevant sense
Professor Winterton was right when he recognised that “while the core of the British
principle of responsible government is clear, the edges are fuzzy and ill-defined.” 52
Putting those edges aside, the essential or core elements of the concept are:
I First that the Crown‟s representative should act in accordance with the advice of
Ministers who are members of the Parliament subject to the reserve powers enjoyed by
the Crown‟s representative; and
II Secondly, those Ministers must command the confidence of the House of
Representatives.
If both these core principles are now legally enforceable it will vindicate a view expressed by
Professor Winterton even before the Nationwide News, Australian Capital Television and
Lange cases were decided. 53
See Lindell, Book Review Article above n 14 at pp 267 – 8 which was an issue on which I disagreed with
Professor Winterton. Professor Zines was inclined to agree with Professor Winterton: Zines, The High Court and
the Constitution above n 49 at pp 374-5.
51
Winterton above n 5 at p 2 who went on to explain that when the “government loses a vote of confidence in the
House of Commons it must advise a general election or resign. But as one moves from that core of the principle of
responsible government the position become steadily less clear.”
53 Winterton above n 5 at pp 80, 125-7 as also indicated in Zines above n 49 at p 341.
52
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(iii)
Application to the Senate’s refusal of Supply and the dismissal of the
Whitlam Government in 1975
This now brings us to the blocking of Supply by the Senate which culminated in the dismissal
of the Whitlam Labor Government in 1975. Elected upper houses pose obvious problems for
responsible government if the view is taken, as I think it should, that Ministers need enjoy
only the confidence of the majority in the House of Representatives and not the Senate as
well. 54 The problem is created by the Senate having and exercising the power to refuse
Supply.
Clearly the years that have passed have not settled whether Sir John Kerr was
justified in exercising his reserve powers in dismissing Prime Minister Whitlam and ordering
early elections for both Houses as a means of resolving the deadlock over Supply. As I have
explained elsewhere, the controversial events of 1975 opened up an intense debate which
ranged over a wide spectrum. This is not the place to undertake a fresh examination or
exhaustive description of that debate which has been sufficiently described by others. 55 The
broad outline of that debate suffices for present purposes.
At one end of the spectrum there were those who argued that the reserve power to
dismiss no longer existed. At the opposite extreme were those who believed it did exist and
was correctly exercised by Sir John Kerr. In between those two positions was the view
favoured by me and others, namely, that although the reserve power did exist it was not
correctly exercised because it was invoked prematurely and the then Prime Minister was not
adequately warned about its impending exercise. Of course there have been replies to those
arguments but it is unnecessary to pursue these here. The basic rationale used by Sir John
Kerr and Sir Garfield Barwick for justifying the existence of the reserve power to dismiss a
Prime Minister whose government enjoys the confidence of the House of Representatives but
is refused Supply by the Senate, can be summarised as follows:
For an acknowledgement of the problem created by elective upper houses which have the power to refuse
Supply see Re Patterson; Ex parte Taylor (2000) 207 CLR 391 at p 460 para 212 per Gummow and Hayne JJ.
See also the remarks of Sir Owen Dixon who described it a “responsibility to Parliament or rather to the House
which deals with finance, for what the Administration has done” in New South Wales v Bardolph (1934) 52 CLR
455 at p 509 or “the House of the legislature which controls finance” in “Marshall and the Australian Constitution
“ in Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) at p 167 [emphasis added] and
discussed in S Bennett, The Making of the Commonwealth (1971) at pp 156 - 7 and also Lindell above n 32 at pp
111 - 2
55 For a succinct account see G Winterton, “1975: The Dismissal of the Whitlam Government” in H Lee and G
Winterton (eds), Australian Constitutional Landmarks (2003) Ch 10, 229 especially at pp 234 – 248, 250 - 2
Compare P Lane, Lane’s Commentary on the Australian Constitution (1986) 293-302 and E Forsey, “The Present
Position of the Reserve Powers of the Crown” in the Introduction to the 1968 reprint of The Royal Power of
Dissolution of Parliament in the British Commonwealth (Legal Books, 1990) at pp li-lvii .
54
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1. A government which has been denied Supply by a popularly elected lower house of a
parliament can be dismissed if it does not resign or agree to go to an election.
2. The same principle must apply by analogy if Supply is denied by a popularly elected
upper house - as a necessary consequence of parliamentary control of appropriation
and expenditure and of the expectation that the ordinary and necessary services of
government will continue to be provided. 56
The first of these principles was uncontroversial even though it was obviously derived from
the system of responsible government developed in the United Kingdom where the upper
house was not elected. The second principle was seen as analogous to the first – an analogy
rendered necessary by the powers vested in, and the elective nature of, both Houses of the
Australian Parliament.
Like others, I believe that Sir J Kerr and Sir G Barwick created a new principle for
which there was no precedent. 57 My own view is that the analogy is suspect. The power to
dismiss a Prime Minister in the circumstances which arose in 1975 can and should be derived
independently of any analogy founded on the system which operates in relation to the United
Kingdom Parliament. A preferable way of justifying the power is to treat the power of the
Governor-General as a solution of last resort deployed by a constitutional umpire in the
event that the political processes have proved unable to resolve any impasse over Supply.
This can be done without relying on any notion of responsibility to the Senate or implying
any criticism or disapproval of a government that is unwilling to resign if it has continued to
govern when it enjoys the confidence of the House of Representatives despite the refusal of
Supply by the Senate.
It is a solution of last resort necessary to continue the provision of the “ordinary and
necessary services of government”. It is also consistent with but not derived from the
provisions of 61 of the Constitution which provide that the executive power of the
Commonwealth vested in the Governor-General extends to the execution and maintenance
of the Constitution. Although resort to the judgment of the electors is democratic the
solution may not be satisfactory if the deadlock over Supply is not accompanied by deadlocks
in respect of other legislation sufficient to ground a dissolution of both Houses under s 57 of
the Constitution as distinct from only the House of Representatives under s 5.
Be that as it may, the conduct of these arguments took place, for the most part, on the
assumption that once the Governor-General had the legal power to dismiss the Prime
Statement by the Governor-General (Sir J Kerr) dated 11 November 1975 and also the controversial advice
tendered by then Chief Justice, Sir G Barwick, in his letter to Sir J Kerr, dated 10 November 1975. See also G
Barwick, Sir John Did His Duty (1983) Ch 6 esp at pp 110-1 and 114-5.
57 Winterton above n 55 at p 245 who also refers to the same views of Professor Geoffrey Sawer.
56
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Minister under s 64 the propriety of the exercise of the power by reference to the
considerations outlined above was not a legal question but one of convention in the
traditional British sense - albeit the need to adjust those conventions in their application to
Australia. After 1975 it was natural that attention would turn to whether, as Dr Evatt had
once suggested, these conventions should be codified.
58
Despite surprising agreement
reached at the committee level, the attempts by the Australian Constitutional Convention to
codify the conventions in this area ultimately failed. 59
The competing views about the propriety of Sir John Kerr‟s actions proved a major
stumbling block in the way of treating the precedent created by 1975 as a settled convention
for the future. This has left unresolved the problem of what would happen if the episode was
ever to be repeated.
I have argued elsewhere that the awesome nature of the consequences of the exercise
of the power to reject Supply by the Senate and the uncertainty about the propriety of the
exercise of the power to dismiss provide a kind of a safeguard against its repetition.
In other words, and looking at the world through North American eyes, it is as if the absence
of a solution provides for its own solution. 60
However what was previously an issue which turned on the interpretation of
conventions may now be seen as a question of law in the light of the comments made in the
Nationwide News and Lange cases regarding the effect of entrenching at least some aspects
of responsible government under the Australian Constitution. What begins as the relatively
simple matter of giving effect to an essential element of responsible government

ie the duty of the Governor-General to act in accordance with advice provided by
Ministers who command the confidence of the House of Representatives,

necessitates a detailed examination of the exceptional circumstances in which the
Governor-General does not have to act in accordance with that advice.
H Evatt, The King and His Dominion Governors (2nd ed, 1967) at pp 7, 285, 289, 291 - 2.
See Standing Committee “D” Fourth Report to the Executive Committee Practices (21) – (22) at pp 5, 29, 36
and 39 published in the Proceedings of the Australian Constitutional Convention Vol II Adelaide 26 – 29 April
1983. These practices were recommended by a majority but when they were debated at the Adelaide Session of
the Convention the failure to reach agreement resulted in the referral of the recommendation to adopt them
(along with the recommendation to adopt Practices (20) and (23) – (27)) to the Standing Committee of the
Convention for further consideration: ibid Vol 1 at pp 81-99, 242 – 3 and 320. Subsequently the Structure of
Government Sub-Committee to the Standing Committee of the Convention accepted that the practices dealing
with the dismissal of a Prime Minister were likely to prove controversial and therefore unsuitable for submission
to the Brisbane Session of the Convention which was later held in 1985: Structure of Government Sub-Committee
Report to Standing Committee August 1984 para 2.16 at p 12 published in Proceedings of the Australian
Constitutional Convention Vol II Brisbane 29 July – 1 August 1985. The failure to deal with the issue in the
practices that were adopted was the subject of repeated comment when the matter was debated at that Session
and the resolution finally passed on the relevant Agenda Item noted that fact: Ibid Vol I at pp 7- 10, 13 – 46, 389.
One of the delegates, Mr Greiner MP (NSW), observed, “the recommendations are deafeningly silent on the
dismissal of a Prime Minister by a Governor –General” Ibid at p 30.
60 G Lindell, “The Australian Constitution: Growth, Adaptation and Conflict – Reflections About Some Major
Cases and Events” (1999) 25 Monash University Law Review 257 at pp 288 - 9.
58
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Judicial intervention would then give the High Court the ability to resolve and settle as a
strictly legal matter some aspects of the debate I have described. In short, that debate is
whether a government can be lawfully dismissed by the Governor-General under s 64 of the
Constitution when the government enjoys the confidence of the House of Representatives
and refuses to advise an early election notwithstanding its inability to secure Supply in the
Senate. 61
I can now bring my unexpected journey to a close by observing that it would be both
interesting and fascinating to be able to see how the High Court would resolve this issue
which has so far eluded a political solution. 62
Winterton Lecture 2013 Geoffrey Lindell.
Compare Winterton above n 5 at pp 125 - 7.
This does not mean that the Court would deal with all aspects of the conflict which occurred in 1975 particularly
as regards whether there was a convention that the Senate would not reject a money bill - a question discussed by
Winterton above n 55 at pp 242-3. The Court could not resolve that issue merely because it concerned the
existence or non-existence of a convention since constitutional conventions do not by virtue of their own
authority crystallise into rules law. The only way such an issue could become the subject of judicial review is if it
could be shown that it was inextricably linked with the rules of responsible government because of the impact
which those rules have on the Senate‟s legal powers to reject a money bill. This possibility however seems remote
although the Court may have to pass on the purely legal existence of those powers under s 53 of the Constitution
independently of whether those powers had been exercised in accordance with any alleged convention: The
weight of judicial authority supports the legal power of the Senate to refuse Supply: G Lindell “Duty to Exercise
Judicial Review” in L Zines (ed), Commentaries on the Australian Constitution (1977) at p 168 n 38. See also
Winterton above n 55 at pp 242 – 3.
61
62
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