Imagereal Capture

128 Federal Law Review [VOLUME 9 for contentious argument. In considering some vf these recent events however, the authors have perhaps touched a little too lightly on the events of 1974 and 1975 concerning casual vacancies and their signifi cance for section 15 of the Constitution, though the question whether Senator Gair held an office of profit or not upon accepting a diplomatic appointment is adequately dealt with in the discussion on section 44(iv). With respect to a couple of minor matters mentioned in the review of the first edition, it is pleasing to note that there is some reference to the issue of whether federal implications limit the Commonwealth's ability to bind the States. On the other hand, the authors have con tinued to refer, inaccurately, to the arrangements under which external territories are governed (page 374), though this is admittedly a minor detraction. In all, despite the fact that it follows hard on the heels of the original, this edition is well worth acquiring for those who seek an accessible source book on contemporary Commonwealth Constitutional Law. P. W. JOHNSTON* Federation Under Strain. Australia 1972-1975 by GEOFFREY SAWER, Emeritus Professor of Law, The Australian National University. (Melbourne University Press, 1977), pp. i-viii, 1-237. Cloth, recom mended retail price $14.60 (ISBN: 0 522 84130 9). The reference in the title of this book is to the period of Labor government under Mr Gough Whitlam 1972-1975. It would probably have been an appropriate title under any circumstances, for Labor came to office with aggressively centralist policies and attitudes. As things turned out, Mr Whitlam presided over the most spectacular constitutional uproar in our short history. It was a watershed in Aus tralian public affairs. Politically the result of the turbulence was a disaster of enormous proportions for the Australian Labor Party. It has yet to be seen whether the A.L.P. will ever fully recover. On a wider scale the loser was the entire Australian community. It is of the essence of a healthy democracy that reasonably frequent changes of government should be taken for granted and give rise to no particular public excitement. This cannot happen unless there are alternatives between which to choose. The effective result of the dramatic loss of credibility sustained by the A.L.P. over the past few years has been to remove the possibility of choice from the realm of practical politics for the foreseeable future. Although Labor went into the 1977 election with a singularly uninspiring demeanour, there can be little doubt that the basic causes of their second successive overwhelming defeat lay much deeper tha~ errors in campaign tactics. Many observers by no means unsympathetic to Labor regarded the party as having voluntarily abandoned all hope of winning the next election when it re-elected Mr Whitlam as leader *Senior Lecturer in Law, University of Western Australia. 1978] Book R~views 129 and Mr Uren as his deputy. The reason for this assessment did not l~e in the ministerial abilities of these two gentlemen, or even in their political views. It lay in the fact that these were two of the names firmly, and rightly, associated in the public mind with the events of 1972-1975. In many ways this is a thoroughly inconsistent judgment by the electorate. Mr Fraser had as much to do with the course and outcome of the parliamentary battles as anyone, but he has now been elected into office twice with unprecedented parliamentary majorities. It is Labor which has taken the blame, and in particular the Labor leaders of those days. One has only to remember that the Whitlam governments were preceded by 23 continuous years of Liberal-Country Party government, and to realise that the events of 1972-1975 seem to have entrenched that particular political grouping back into power even more strongly than before, to appreciate the full significance of those years. It is never wise to attempt political prophecy. Nevertheless a rational assessment of the evidence as it stands at the moment does not suggest any significant alteration in the distribution of political power in the near future. It is worth bearing this background in mind when taking up such a book as the one under review. A good deal of what has been written so far about the Whitlam years was necessarily produced at high speed by journalists taking their only opportunity to capitalise on detailed knowledge of day to day events. Such collections have their place as a record of contemporary history. Nevertheless they are necessarily superficial. They cannot attempt to grapple with questions of funda mental principle, or with the technical difficulties which for the most part are the professional province of the lawyer. Unfortunately many lawyers who were involved in or closely observed the events of 1972 1975 are either professionally debarred from writing about what they know or else do not successfully combine a sense of the realities of politics with their legal expertise. The author of the book under review, Professor Geoffrey Sawer, has based a long and distinguished career on being an outstanding exception. His comprehension of the realities of politics and his expertise in the intricacies of constitutional law are both equally undoubted. The publication of his personal analyses of some of the major mishaps of the Whitlam years is an event of unusual interest. The announced purpose of the book is to help the layman to under stand the major legal issues involved. Certainly it is written in a manner which ought to be capable of comprehension by anyone of normal intelligence and education. This is a substantial virtue which needs to be stressed before the reviewer proceeds, as inevitably he must, to record some reservations about the success of the enterprise. The events which have particularly caught the attention of the author are the Gair affair, the double dissolutions of 1974 and 1975, the loan scandal, the position of the Federal Executive Council, the Senate and Supply, the functions of the Governor-General and the nature of constitutional conventions. It is not only useful but also stimulating to have Sawer's reaction to these topics. The main reservation however is that although the opening words of the preface say that the book "is intended as a 130 Federal Law Review [VOLUME 91' legal companion to studies of Australian federal government in the: Whitlam period", it is actually more personalised than that form of words suggests. A legal companion certainly, but the contents are not comprehensive., They express Sawer's own views and speculations but not the views of' others except to the extent that the author is minded from time to time to take them into account on some particular point. Particularly there is no mention anywhere of Labor and the Constitution 1972-1975, edited by Gareth Evans (1977), and no sign that Sawer has availed himself of the wealth of material available in that publication. The earlier book, which consists of the papers presented at the federal anniversary seminar at the University of Melbourne in 1976 and the commentaries made upon them, is by far the most comprehensive and scholarly treatment of the period yet to appear. The contributors included many who were deeply involved in the events about which they were writing. One contributor was indeed Professor Sawer himself. His own book would have been improved had he taken more of that material into account. It is manifest also that the main text was completed before the 1977 referendum results were known. The author makes an effort to bring his text up to date in this respect by devoting the last few pages of the last chapter to the Senate casual vacancies amendment. He might well also have devoted more attention to the simultaneous elections proposal, which only just failed, and to the territory voters amendment. Had he done so, his comments on the 1974 referenda (pages 12-13) would have been modified. The general effect of trying to add on the 1977 referenda at a late stage, instead of integrating them properly with the main text, is that they appear as little more than an afterthought. Their significance, both in themselves and by way of their relationship to the unsuccessful 1974 exercise, is consequently underplayed. Sawer's Chapter 5 examines the loans affair, which he rather tenden tiously prefers to call the petro-dollar loan. The present reviewer finds this description trendy and unhelpful. Although a small point in itself, it is worth making because in tone the title reflects accurately enough the whole chapter. Sawer attempts to explain this bizarre episode on a legal and constitutional basis. It cannot be said that his arguments are cogent. Among other things they depend on certain assumptions about the correct interpretation of sections 81 and 83 of the Constitution which do not command general acceptance. They include also a most unconvincing effort to explain away the astounding use made of the concept of a loan for temporary purposes within the meaning of the financial agreement. The speculation that political lawyers of the calibre of Whitlam and Murphy needed instruction on the point from Arab lawyers trained at Oxbridge is almost embarrassing coming from so distinguished an author. One must nevertheless give him full credit for attempting to apply the Financial Agreement and the procedures of the Loan Council to the situation. The attempt is praiseworthy because the Financial Agreement is, at least in part, unintelligible and Loan Council practices and procedures are largely unknown. Sawer is right in saying that these matters should be made public.

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