Jenny Hocking has said of the affair: "The government's attempts to effect an additional Senate vacancy through Gair's resignation was constitutionally sound, strategically brilliant and an unmitigated political disaster."[1]
Background
This article is part of a series about Gough Whitlam
At the 1972 election, Gough Whitlam led the Australian Labor Party to its first success at the federal level in 23 years. Although another election for the House of Representatives was not due until early 1976, an election for half the Senate was required earlier. Normally, these elections are held on the same day, but they had become out of synchronisation in 1963 due to the then Prime Minister Sir Robert Menzies calling an early House election. Between 1963 and 1972, elections for the Senate and House of Representatives were held separately. The last half-Senate election was held on 21November 1970, senators' terms commencing on 1 July 1971. Another half-Senate election had to be held in time for senators to commence their terms on 1 July 1974. Such an election could have been called for any time from early August 1973, but Whitlam was in no hurry.
Although Labor controlled the House of Representatives with a 9-seat majority, it was 5 seats short of a majority in the Senate. Consequently, Labor faced constant opposition in getting its legislation through the parliament. By March 1974, a number of bills had been twice rejected by the Senate, which gave Whitlam the capacity to call a double dissolution, in which the entire parliament would be up for election. If the government were returned, it could reintroduce the bills in question, and if they were rejected by the Senate a third time, the government could seek to hold a joint sitting of the Senate and House.
In early March 1974, however, such a course of action was not under active consideration. It was an option that had only ever been used twice before (in 1914, when the government was defeated; and 1951, when the government was returned with a reduced majority in the lower house, albeit now with a majority in the Senate) and was regarded as somewhat extreme. Also, Labor felt it needed more time to improve its electoral stocks before considering such a move.[2] Whitlam still only intended to call a half-Senate election, even though this would continue the lack of synchronicity between the elections of the houses, something he had often deplored. In debates in parliament and in outside commentary, he often decried the fact that senators elected in 1967 and 1970 were able to frustrate the will of a government elected in 1972.
Section 12 of the Constitution provides that the writ for a Senate election in each State is issued by the State Governor.
Vince Gair
Vincent Clair Gair was a former Australian Labor Party (ALP) Premier of Queensland 1952-57 who was expelled from his own party while in office, and formed the breakaway Queensland Labor Party (QLP), which in 1962 merged with the Democratic Labor Party (DLP). In 1964 he was elected to federal parliament as a DLP Senator for Queensland, his term commencing on 1 July 1965. He was elected parliamentary leader of the DLP immediately although it had only two members at that time (Frank McManus from Victoria was the other). He was re-elected in 1970 for a new term (1971–1977). In 1973, by which time the DLP's Senate numbers had risen to five, internal issues caused Gair to resign as leader of the party from 10 October, with McManus taking over.[3] He had first intimated in January 1973 that he would resign as leader, but vacillated until October, when Frank McManus offered him the choice of immediate resignation or being removed by his colleagues.[4]
Gair announced at that time that his current term as senator would be his last. In March 1974 he also complained to the ALP senator Justin O'Byrne that the DLP had treated him shabbily. He said he was thinking of leaving the Senate earlier than 1977, and suggested that he would consider accepting a diplomatic post should the government be minded to offer him one. O'Byrne repeated this conversation to his Senate Leader Lionel Murphy, who devised a plan to use Gair's disgruntlement to the ALP's advantage, which he talked over with Whitlam. The plan was to appoint Gair to an overseas post, which would require him to resign his seat in the Senate, and to arrange for this to occur before the writs for the impending half-Senate election were issued. This would have the effect of causing writs to be issued for the election of 6 senators from Queensland, not the 5 as would otherwise have been the case (at that time, each state had 10 senators, and 5 of them were elected at each half-Senate election). Gair was not the only non-ALP person in the ALP's sights: they also offered the post of Ambassador to the Holy See to Frank McManus (he refused outright); and they had been considering offering Liberal senator Peter Durack a seat on the High Court, but never approached him.[2]
This plan also relied on a feature of the Constitution at that time, which was amended in 1977. While now senators appointed to fill a casual vacancy serve the remainder of the original senator's term, in 1973 the appointed senator's term only lasted until the next Senate or House election.[2] In a normal half-Senate election, the ALP could expect to win 2 of the 5 seats in Queensland. However, if 6 seats were up for election, the ALP could expect to win 3, and this would give it the bare majority it needed in the Senate to guarantee passage of future legislation.
Gair was offered the post of Ambassador to the Republic of Ireland, and readily accepted on 13 March 1974.[2] Ireland was dear to his heart, as his mother was Irish, his wife was of Irish stock,[2] and he was a staunch Catholic, and he saw this as a particularly fitting way to conclude his public life. However, the matter needed to remain strictly confidential pending various matters of protocol being attended to. The Federal Executive Council approved the appointment on 14 March, and the Irish Government accepted the appointment on 19March. It cabled its approval to Canberra, where it was received on 20 March.
On 21 March, Gough Whitlam advised the Parliament that he had obtained the concurrence of the Governor-General, Sir Paul Hasluck, to hold a half-Senate election on 18 May 1974, and the timing of the issue of the writs was a matter of discussion between the Governor-General and the state governors.
The ALP's plan was that Gair would tender his resignation to the President of the Senate, Sir Magnus Cormack, on 2 April, when the Senate returned after a break, well before the writs were expected to be issued for the election, but for it to remain a strictly confidential matter until then.
The Night of the Long Prawns
On the morning of 2 April, The Sun News-Pictorial newspaper broke the news of Gair's appointment to Ireland. In Parliament, the Leader of the Opposition, Billy Snedden, asked Prime Minister Whitlam to come clean. He readily confirmed the appointment. Snedden decried it as shameful and "worse than any Tammany Hall effort that has ever been made in the United States", and compared it with what he called the "very fine appointment" of Sir Garfield Barwick as Chief Justice of the High Court.[5]
The Leader of the National Country Party (NCP), Doug Anthony, denounced the appointment as a cynical buying-off exercise. He was aware that the timing was crucial, and he phoned the NCP Premier of Queensland, Joh Bjelke-Petersen, urging him to have the writs for the Queensland Senate seats issued immediately before Gair had a chance to see Cormack and resign.[2] Senator Ian Wood also contacted Bjelke-Petersen along similar lines.[6] But Gair had to be kept at bay while the Governor of Queensland, Sir Colin Hannah, was consulted about the matter, as it was his sole prerogative under the Constitution to issue writs for Senate elections, albeit always acting on advice from the premier of the day. NCP Queensland Senator Ron Maunsell entertained Vince Gair and other senators in his office, plying him with drinks and prawns he regularly brought all the way from his home in Townsville.[2] Ian Wood also had a hand in arranging this; he was a teetotaller, but had no scruples about arranging for others to use alcohol to further his political goals.[6] But Gair also had to appear in the Senate chamber and vote where necessary; the Opposition was aware the government would likely claim he had effectively resigned in March when his appointment as Ambassador was approved, as this was an office of profit under the crown, which serving members and senators are prohibited from accepting on pain of forfeiture of their parliamentary seats.[2] If Gair was appearing in parliament right up till 2 April, with no objections from the government, the Opposition reasoned that the government could hardly credibly hold to the line that he had ceased to be a senator in March, or at any time before the issue of the writs for Queensland. Thus Maunsell stayed close to Gair the whole evening, shepherded him into the Senate chamber for a vote on the Petroleum and Minerals Authority Bill,[6] and then straight back to his office for more whisky and prawns.[2] In fact, he did not need to do this, since the electoral legislation deems writs to be issued at 6 pm regardless of the time they are actually issued. As long as Gair was prevented from seeing the President until 6 pm, the plan would work. Maunsell later made a personal explanation to the Senate, in which he denied exerting any undue influence on Gair; he explained that the Parliamentary Dining Rooms had gone on strike in the morning,[2] Gair had not eaten all day, Maunsell was simply extending courtesy to a fellow Queensland senator, and Gair was free at all times to come and go as he pleased.
The Senate sat through until 12:30am on the morning of 3 April, and Gair did not finally leave for home until around 3am. About 90 minutes earlier, at 1:40 am, Bjelke-Petersen announced to the Queensland Parliament that the Governor had, on his recommendation, issued writs for the election of five senators at 11pm on 2 April.[2]
Labor had been stymied, and the evening of 2–3 April 1974 has been known ever since in Australian political discourse as "The Night of the Long Prawns" thanks to a newspaper headline in The Australian of 4April, to an article written by Bob Baudino.[2]
On 3 April, Vince Gair was expelled from the party of which he had been leader until just over four months earlier. At this time he said to his erstwhile DLP colleagues, "I've carried you, bastards, for years, and now you can all go to buggery!"[1]
Gair's letter
In the afternoon of 3 April, Gair was finally able to have his formal advice about his status conveyed to Sir Magnus Cormack through the Clerk of the Senate. However, it was not so much a letter of resignation, as a letter advising of his constitutional ineligibility to remain a senator due to his acceptance of the ambassadorship - the very argument that the Opposition had foreseen. The letter had been prepared by the Government and edited by Gair, and it said:
Dear Mr President, I publicly announced yesterday that I had accepted appointment as Australian Ambassador to the Republic of Ireland. I endeavoured to communicate this to you personally yesterday and to inform you of my position, but regrettably you were unavailable when I sought to see you. My appointment was approved by the Governor-General on 14 March 1974, with my knowledge and consent. I was informed on 20 March that the Government of Ireland had communicated its agreement to my appointment. As you are aware, the position of Ambassador is an office of profit under the Crown and also carries with it fees for services rendered to the Commonwealth, within the meaning of Section 45 of the Constitution, which I had agreed to take. The effect of my appointment as Ambassador was to vacate my place as a Senator by virtue of the Constitution. It is with regret that I decided after receiving the offer to leave the Senate and the many friends I made during my nine years here. I would like to personally thank you for our association in that period first as Senate colleagues and later under your Presidency. Yours faithfully V.C.Gair
The Senate President was unsure whether this letter amounted to a resignation; or whether Gair's seat had become vacant at all; and if it did, from when - so he put the question to the Senate for their consideration.[6] The ALP argued that Gair had ceased to be a senator on either 14 March (when the Executive Council approved the ambassadorship) or 20 March (when the Irish Government accepted his appointment), but in any case well before the issue of the writs on 2 April. Opposition senators questioned why the Government did not alert the Senate to the presence of a stranger in its midst as soon as the appointment became effective, if that was its position. Senator Lionel Murphy deflected all such criticisms on the basis that it was a matter for Senator Gair to initiate the appropriate communications about his status to the President, which he did at the earliest opportunity. Turgid and legalistic discussion on the matter occupied much of the Senate's time on 3, 4, 8, 9 and 10 April 1974, without any resolution. Murphy arranged for a legal opinion supporting the government's position to be provided by the Solicitor-General of Australia, Maurice Byers, which was read out to the Senate. The matter was also extensively canvassed in the House of Representatives during this period.
Double dissolution and aftermath
In the evening of 10 April the whole matter became academic when Gough Whitlam advised the House of Representatives that Governor-General Hasluck had agreed to a double dissolution, the election for both houses to be held on the already announced date of 18 May 1974. The Parliament was dissolved on 11 April. In his valedictory remarks, Sir Magnus Cormack described it as the most turbulent Senate since Federation.[6]
According to the official record of the Senate, Vince Gair remained a senator until 11 April 1974, at which time he retired.
At the election, all five Senate seats held by the DLP were lost, and that was the effective end of the party as a viable force in Australian politics. The party was wound up in 1978. The ALP was returned with a reduced majority of five in the lower house, and it remained without a majority in the Senate. The six twice-rejected bills were introduced again, and rejected a third time, but they were all finally passed at the historic joint sitting in August. One of the bills was subsequently struck down on procedural grounds.
Vince Gair took up his post as Ambassador to Ireland in early May 1974,[2] but his behaviour there was often considered inappropriate and he was recalled by the Liberal–National Coalition government of Malcolm Fraser in early 1976.
Edward Gough Whitlam was the 21st prime minister of Australia, serving from December 1972 to November 1975. To date the longest-serving leader of the Australian Labor Party (ALP), he was notable for being the head of a reformist and socially progressive government that ended with his controversial dismissal by the then-governor-general of Australia, Sir John Kerr, at the climax of the 1975 constitutional crisis. Whitlam remains the only Australian prime minister to have been removed from office by a governor-general.
The 1975 Australian constitutional crisis, also known simply as the Dismissal, culminated on 11 November 1975 with the dismissal from office of the prime minister, Gough Whitlam of the Australian Labor Party (ALP), by Sir John Kerr, the Governor-General who then commissioned the leader of the Opposition, Malcolm Fraser of the Liberal Party, as prime minister to hold a new election. It has been described as the greatest political and constitutional crisis in Australian history.
Vincent Clair Gair was an Australian politician. He served as Premier of Queensland from 1952 until 1957, when his stormy relations with the trade union movement saw him expelled from the Labor Party. He was elected to the Australian Senate and led the Democratic Labor Party from 1965 to 1973. In 1974 he was appointed Australian Ambassador to Ireland by the Whitlam government, which caused his expulsion from the DLP.
The Democratic Labor Party (DLP) was an Australian political party. The party came into existence following the 1955 ALP split as the Australian Labor Party (Anti-Communist), and was renamed the Democratic Labor Party in 1957. In 1962, the Queensland Labor Party, a breakaway party of the Queensland branch of the Australian Labor Party, became the Queensland branch of the DLP.
The Constitution Alteration Bill 1977, was a successful proposal to alter the Australian Constitution concerning the filling of casual vacancies in the Senate. It was put to voters for approval in a referendum held on 21 May 1977. After being approved in the referendum, it received the royal assent and became law on 29 July 1977.
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Malcolm Arthur Colston was an Australian politician who served as a Senator for Queensland from 1975 to 1999. He was a member of the Labor Party until 1996, when he resigned to sit as an independent following a dispute over his candidacy for Deputy President of the Senate. Colston was a schoolteacher before entering politics, and held a doctorate in educational psychology from the University of Queensland.
Francis Patrick Vincent McManus, Australian politician, was the last leader of the parliamentary Democratic Labor Party and a prominent figure in Australian politics for 30 years.
The Whitlam government was the federal executive government of Australia led by Prime Minister Gough Whitlam of the Australian Labor Party. The government commenced when Labor defeated the McMahon government at the 1972 federal election, ending a record 23 years of continuous Coalition government. It was terminated by Governor-General Sir John Kerr following the 1975 constitutional crisis and was succeeded by the Fraser government—the sole occasion in Australian history when an elected federal government was dismissed by the governor-general.
Albert Patrick Field was an Australian Labor Party member. In 1975 he was chosen as a Senator in unusual circumstances that played a significant role in precipitating the 1975 Australian constitutional crisis. Gough Whitlam described him as "an individual of the utmost obscurity, from which he rose and to which he sank with equal speed".
The 1963 Australian federal election was held in Australia on 30 November 1963. All 122 seats in the House of Representatives were up for election. The incumbent Liberal–Country coalition government, led by Prime Minister Sir Robert Menzies, won an increased majority over the opposition Labor Party, led by Arthur Calwell. This was the only time that a Federal Government won a seventh consecutive term in office.
Condon Bryan Byrne, Australian politician, was a Senator for the Australian Labor Party and later the Democratic Labor Party. Prior to entering politics he was private secretary to Vince Gair who was then Premier of Queensland.
The 1974 Australian federal election was held in Australia on 18 May 1974. All 127 seats in the House of Representatives and all 60 seats in the Senate were up for election, due to a double dissolution. The incumbent Labor Party led by Prime Minister Gough Whitlam defeated the opposition Liberal–Country coalition led by Billy Snedden. This marked the first time that a Labor leader won two consecutive elections.
The Queensland Labor Party (QLP) was a political party of Queensland, Australia formed in 1957 by a breakaway group of the then ruling Labor Party Government after the expulsion of Premier Vince Gair. In 1962 the party became the Queensland section of the Democratic Labor Party (DLP). The party continued to hold seats in the Queensland state parliament until 1972, then suffered a collapse in its vote and wound itself up in 1978.
Bertie Richard "Bert" Milliner was an Australian trade unionist, politician and Senator, representing the Australian Labor Party (ALP). He would have been a minor figure in Australia's political history but for the events that followed his sudden death. Those circumstances contributed to the 1975 Australian constitutional crisis, which culminated in the dismissal of the Prime Minister, Gough Whitlam, by the Governor-General, Sir John Kerr.
Charles Ronald Maunsell was an Australian politician.
Elections were held in the Australian state of Queensland on 3 August 1957 to elect the 75 members of the state's Legislative Assembly. The major parties contesting the election were the Queensland Labor Party led by Premier Vince Gair, the Labor Party led by former Deputy Premier Jack Duggan, and the Country-Liberal coalition led by Frank Nicklin.
Sir Maurice Hearne Byers was a noted Australian jurist and constitutional expert. He was the Commonwealth Solicitor-General from 1973 to 1983, in which capacity he played a role in the Gair Affair and the 1975 Australian constitutional crisis. He had an unmatched record of success in his appearances before the High Court of Australia, and he has been characterised as the finest lawyer never to have been appointed to the High Court.
The history of the Australian Labor Party has its origins in the Labour parties founded in the 1890s in the Australian colonies prior to federation. Labor tradition ascribes the founding of Queensland Labour to a meeting of striking pastoral workers under a ghost gum tree in Barcaldine, Queensland in 1891. The Balmain, New South Wales branch of the party claims to be the oldest in Australia. Labour as a parliamentary party dates from 1891 in New South Wales and South Australia, 1893 in Queensland, and later in the other colonies.
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