Judicial review and the dismissal of an elected government in 1975: then and now?

Abstract

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 developments have occurred both in Australia and elsewhere which may involve in the future the courts resolving 'conflicts over the reins of power'. It has been questioned whether such conflicts would be resolved by a pronouncement of a court. In Australia developments in administrative law 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. In addition there have also been developments which may have the effect of converting the core aspects of the conventions of responsible government -- and their accompanying qualifications based on the reserve powers of the Crown -- into judicially enforceable rules of law. This lecture addressed 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 if this were to occur again.