The assassination and obsequies of Archduke Franz Ferdinand and his Duchess did not occupy the front pages of newspapers for long. Various European capitals were preoccupied by the crisis, with varying degrees of intensity, but behind closed doors.
Australia quickly returned to its own political crisis, a parliamentary crisis pitting the Labor-dominated Senate against the House of Representatives where the first Liberal Government held office with a slender majority. It came to head almost at the same time as Princip fired the fatal shots at Sarajevo.
Australia’s federal democracy, little more than a decade old, had many innovatory features. Foremost among these was a bicameral parliament in which both Houses, with comparable if not quite identical powers, were elected on the same democratic franchise.
A conflict between the Houses could not, in a rhetorical sense, be fought in terms of the People versus the Peers as was Britain’s parliamentary crisis of 1909-11; and it was not beyond resolution as was the case in Canada, where Robert Borden’s Conservative Government was repeatedly frustrated by the Liberal-dominated Senate.
The Australian Constitution itself provided a means of addressing the conflict, if not necessarily of resolving it.
According to section 57, if the Senate twice rejected, amended unacceptably or failed to pass a bill, with an interval of three months between the first and second parliamentary deliberations, the Governor-General could dissolve both the Senate and the House and call fresh elections for each.
If the legislation still fell foul of the Senate, a joint sitting of the two houses could be convened to vote on it. (This has only occurred once, in 1974.)
Section 57 in its refined form was a consequence of George Reid’s famous ‘Yes-No’ speech during the referendum campaigns leading to adoption of the Constitution.
Inter-house disputes in the early parliaments were handled by negotiation. The 1910 election, however, provided Labor, led by Andrew Fisher, with majorities in both Houses.
But, in the 1913 election, Labor lost its majority. The Liberal Party led by Joseph Cook took office with 38 seats in a 75-seat chamber. It survived with the vote of the Speaker.
Labor was down but by no means out. It won 11 of the 18 Senate seats contested in the election. Together with 18 sitting senators, it had a commanding majority, 29 to 7.
Cook knew his hold on government was tenuous. He immediately sought to remedy the situation utilising the distinctive, indeed unique, avenue offered by section 57.
He presented two short bills which he knew Labor would reject. The first proposed a ban on union preference; the second provided for postal voting at elections. In Dr Evatt’s words, ‘a disagreement was specially manufactured.’
Labor rejected the first without hesitation; it proposed amendments to the postal voting proposal which the Liberal Government found unacceptable.
Labor, moreover, used its Senate numbers to revive proposed amendments to the Constitution seeking extension of Commonwealth powers in a range of industrial and business matters, including monopolies and trusts. The Government refused to put them to the people because they had already twice failed at referendum.
As the crisis approached its climax a new Governor-General arrived, Sir Ronald Munro-Ferguson, a Scotsman.
He was a veteran on the Liberal side in the recent battles in Britain between the Commons and the Lords. This was something of a disadvantage – it took some weeks before he understood that the matter could not be settled according to Westminster practice.
This is the central significance of the 1914 double dissolution, the centenary of which, even if otherwise unnoticed, falls at this time. The framework for settling the dispute was to be found, not in the doctrine and practice of Westminster, but in the Constitution of Australia.
Unlike its counterpart in Canada, it did not contain any affirmation that an explicit intention was to have ‘a Constitution similar in Principles to that of the United Kingdom.’
In an early conversation with Munro-Ferguson, Cook expressly objected to what he described as ‘home precedents.’
Munro-Ferguson’s first (Westminster) instinct was to suggest a fresh election for the House. But such a course would advantage the Opposition, whose Senate strength would not be tested. He soon recognised that a double dissolution was the only course available.
A host of ancillary matters arose. The first concerned the bills upon which the double dissolution was to be based (in the event, only the union preference bill was activated for the double dissolution).
Labor contended that to have a double dissolution the legislation had to be ‘a measure embodying a principle of vital importance necessary in the public interest’; in this, the Chief Justice, Sir Samuel Griffith, sympathised – it was an ‘extraordinary’, not an ‘ordinary,’ power.
It has since been accepted, by authorities as diverse as Dr Evatt and Sir Paul Hasluck, that what counts is conformity with the requirements of section 57, not the significance of the legislation; the latter is a political judgment.
Another consideration was who could the Governor-General consult in reaching his decision, partly in the context of contending (in the face of Cook’s disagreement) that he could exercise a discretion in deciding whether to grant a double dissolution.
In anticipation of the Balfour Report (1926) and the Statute of Westminster (1931), Cook insisted that the Governor-General should take advice only from his ministers (not a view with which Labor, in the circumstances, agreed). Cook acquiesced in consultation with the Chief Justice, who provided advice, but not with the Leader of the Opposition.
(Before leaving London he had had conversation with the constitutional guru of the empire, Arthur Berriedale Keith, as well as the Australian High Commissioner in London, none other than Sir George Reid, who knew something about section 57.)
The Opposition wanted to see the exchange of correspondence between the Prime Minister and the Governor-General. Cook refused and Munro-Ferguson concurred, observing that ‘at home undoubtedly such documents would not be published.’ A statement in the House by the Prime Minister was considered sufficient.
Fisher pressed the matter after winning the election and the papers were almost immediately tabled, as is now usually the case.
The Governor-General granted Cook a double dissolution on 4 June 1914. The Parliament was prorogued on 27 June 1914; and the double dissolution effected on 30 July, just as the European powers were exchanging ultimatums about war.
Cook had underlined that were his advice not accepted, the Government would resign. Fisher, if he agreed to form a government, would not be able to meet the House without suffering immediate defeat.
Munro-Ferguson would then be in the invidious position of having to give his [Cook’s] opponents what [Cook] had been refused.
Just such a course of events was witnessed little more than a decade later in the so-called King-Byng affair in Canada.
Joseph Cook does not stand high among Australia’s political leaders. He had been a very loyal deputy to an often absent Reid for nearly a decade; he surrendered the leadership to Deakin upon formation of the Fusion, forerunner of the first Liberal Party; he surrendered it again in 1917 when the Liberal Party and Hughes Labor combined to form the Nationalist Party.
According to Munro-Ferguson, ‘Mr Cook has plenty of adroitness and courage, and though high-strung so as sometime to “see red,” he has self-control.’
But this centenary reminds the nation of its debt to Cook. In his insistence that our governance is a matter of our own Constitution, not a deference to Westminster, he was a powerful and original spokesman for self-government and for responsible government in Australia.
Cook and Fisher started their campaigns just as hostilities commenced in Europe.
They fulsomely declared their loyalties to the Crown and the Empire. Fisher memorably revived the commitment of the Boer war years to fight to the last man and the last shilling.
He carried the day (5 September): in the House, with nearly 51 percent of the vote, he returned with 42 seats, a majority of nine over all others; and in the Senate, a resounding win, 31 seats to five on the basis of 52.15 per cent share of the vote.
Within little more than two years, Labor would split on the conscription issue; fifteen years would elapse before Labor again won a Federal election.
R. Nethercote is Adjunct Professor, Canberra Campus, Australian Catholic University
A shorter version of this post originally appeared in the Canberra Times.
(Suggested citation: J. R. Nethercote, ‘Forgotten centenary: Joseph Cook and the 1914 Double Dissolution of the Australian Parliament’ U. K. Const. L. Blog (28th July 2014) (available at: https://ukconstitutionallaw.org/)