McCawley and Trethowan - The Chaos of Politics and the Integrity of Law - Volume 2

Trethowan

Ian Loveland

• Publisher: Hart Publishing
• Year: 2021
• Print ISBN: 9781509948314
• eBook ISBN: 9781509948284
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

In the second part of this two-volume study, Ian Loveland delves deeply into the immediate historical and political context of the Trethowan litigation which began in New South Wales in 1930 and reached the Privy Council two years later. The litigation centred on the efforts of a conservatively-inclined government to prevent a future Labour administration led by the then radical politician Jack Lang abolishing the upper house of the State's legislature by entrenching the existence of the upper house through the legal device of requiring that its abolition be approved by a state-wide referendum. The book carefully examines the immediate political and legal routes of the entrenchment device fashioned by the State's Premier Sir Thomas Bavin and his former law student, colleague and then Dean of the Sydney University law school Sir John Peden, and places the doctrinal arguments advanced in subsequent litigation in the State courts, before the High Court and finally in the Privy Council in the multiple contexts of the personal and policy based disputes which pervaded both the State and national political arenas. In its final chapter, the book draws on insights provided by the detailed study of McCawley (in volume one) and Trethowan to revisit and re-evaluate the respective positions adopted by William Wade and Ivor Jennings as to the capacity of the United Kingdom's Parliament to introduce entrenching legislation which would be upheld by the courts.

1

The Immediate Political Roots of the Trethowan Controversy

I had made the mistake of allowing the personal friends and relatives of Labor politicians to be nominated. Some of them were not, in fact, Labor men and never had been. The result was that there were defections when the test came, and we were defeated …

Jack Lang, Premier of New South Wales, on his failed 1926 attempt to abolish the Legislative Council

The entrenchment argument which had been fought out so bitterly in Queensland in the first two decades of the twentieth century was revisited shortly afterwards in New South Wales. The heart of that dispute lay in large part in the cut and thrust of party politics between a faction-ridden Labour Party led by Jack Lang and a Nationalist/Country Party coalition headed by Sir Thomas Rainsford Bavin, and in particular in the very different views taken by those two politicians and their respective parties of the proper role of the Legislative Council within the state’s governmental system.

I.Fact and Faction in New South Wales Party Politics During the First World War and its Aftermath

Billy Hughes’s departure from the national Labour Party over conscription was mirrored in New South Wales by the state’s sometime Premier, William Holman.¹ Born in London in 1871, the son of actor parents, Holman emigrated to Sydney as a teenager. He worked as an apprentice cabinetmaker, combining his trade with great enthusiasm for literature, the arts and radical politics. He formed a close relationship with Hughes, both joining the nascent Labour Party and showing flair for oratory and organising. Holman’s political ambitions were almost derailed by a fraud conviction in 1896 arising from his connection with a newspaper, The Daily Post, but the conviction was subsequently overturned.² Two years later, Holman was elected to the Assembly. Vigorously active as a politician, Holman also qualified for the Bar, and built a small practice focused mainly on trade union clients.³ Holman had not supported federation, and after 1901 directed his energies to state politics. He became deputy leader of the state party in 1905.

Much as the Queensland Labour Party had used its growing Assembly representation to press non-Labour governments to promote reformist legislation, the New South Wales Labour Party also successfully exploited the balance of power it held while a minority party in the 1890s and early 1900s:

Hughes and Holman … played off the Free Traders against the Protectionists to see which would give the greater concessions in return for support in Parliament … They were great days. Reform after reform went on the statute book. They were all obtained at the point of the pistol … They forced the Dibbs government to abolish plural voting. From Reid they obtained a Factories Act, a Coal Mines Regulation Act providing for daily inspections and abolition of female and boy labour on the pits, an Immigration Act and other reforms.⁴

Labour’s election to government in New South Wales lagged slightly behind its Queensland counterpart. The party was the official opposition after the 1904 and 1907 Assembly elections, and then – led by James McGowen – secured a majority of two in the (90-seat) Assembly in 1910. McGowen had the unusual distinction of having been born at sea as his parents emigrated to Australia from Lancashire.⁵ A boilermaker by trade, McGowen’s active trade unionism led him into electoral politics and he was among the first wave of Labour Assembly members elected in 1891. McGowen became leader in 1894. While diligent, McGowen was not especially gifted as either a policy strategist or parliamentary tactician. A kindly biographer suggests that McGowen’s: “honesty and loyalty more than counterbalanced his lack of brilliance”.⁶ Despite his limitations, McGowen remained party leader for almost 20 years.

By 1910, Hughes was striding the national stage and Holman was visibly the power behind McGowen’s throne. Holman was largely responsible for the government’s legislative programme, most notably – an initiative which solidified his standing with the trade unions and enhanced his own leadership ambitions – the Industrial Arbitration Act 1912, which inter alia empowered the courts to fix wage rates, working hours and other employment conditions in a wide range of industries.⁷ Holman succeeded McGowen as party leader and Premier in 1913, and led Labour to a resounding 49–28 success over the Liberals in the 1913 election. While Holman’s political ideology on many social and economic policy matters remained firmly on the centre-left, those concerns were increasingly overshadowed by matters arising from the war, to the extent that Holman – infuriating many members of the Labour caucus – essentially abandoned the reformist economic programme on which the election was fought.⁸

Table 1.1 New South Wales House of Assembly elections 1904–17

Year	Party	% vote	Seats won	Change
1904	Liberal	44.5	45
	Progressives^a	18.5	16
	Australian Labour Party	23.0	25
	Independent Liberal	4.6	1
	Independent	3.0	8
1907^b	Liberal	45.5	45
	Progressives^c	–	–
	Australian Labour Party	32.9	32
	Independent Liberal	10.7	8
	Independent	10.7	4
	Independent Labour	0.5	1
1910	Liberal	42.0	37	–8
	Australian Labour Party	51.1	46	+14
	Independent Liberal	6.9	6	–2
	Independent	1.5	1	–3
	Farmers Party	0.7	–
1913	Liberal	32.8	28	–9
	Australian Labour Party	46.6	49	+3
	Independent Liberal	3.1	–	–6
	Independent	1.5	1	–
	Farmers Party^d	13.3	11	+11
	Independent Labour	1.4	1	+1
1917	Nationalists^e	47.4	52	+13
	Australian Labour Party	42.9	33	–16
	Independent Labour	3.6	1	–
	Independent	4.1	3	+3

^a The ‘Progressives’ can best be described as the vestiges of the former Free Traders.

^b The Assembly was reduced to 90 seats (from 125) for the 1907 election (vol 1 pp 205–206) and I have therefore omitted any ‘change’ figure for that election.

^c The ‘Progressives’ disappeared as a distinct party, most of their members joining the Liberals.

^d I have included the vote share and single seat won by the Country Party in the Farmers Party figures.

^e For the purposes of the ‘change’ column, I have treated the ‘Nationalists’ as the Liberals + the Farmers, albeit that some Nationalist MPs were Holmanite ‘rats’ from the Labour Party.

Holman also antagonised many Labour Assembly members and party activists by refusing to nominate any party supporters to the Council, even though the opposition majority there blocked many measures which Labour put to the electorate in 1913:

Without doubt, Holman had been given a clear popular mandate to carry these proposals into effect. Yet one by one they were defeated in the Upper House or not even carried to finality in the Assembly. The list included: the Bakery Bill, the Baking Hours Bill … the Early Closing Bill … the Industrial Arbitration bill, the Police Appeal bill, the Rural Tenants bill, the Shearers Accommodation bill, the Trades Union Amendment bill and the Workers Compensation Amendment bill...

Table of contents

• Cover
• Title Page
• Preface
• Acknowledgements
• Brief Contents
• Detailed Contents
• Abbreviations
• Table of Cases
• Table of Legislation
• 1. The Immediate Political Roots of the Trethowan Controversy
• 2. The Immediate Legal Roots of the Trethowan Controversy
• 3. Trethowan in the New South Wales Courts
• 4. Trethowan before the High Court
• 5. Trethowan before the Privy Council
• 6. Aftermaths
• 7. Still not Abolishing the New South Wales Legislative Council
• 8. Uses – and Abuses – of the Trethowan Principle
• Bibliography
• Index
• Copyright Page