The Big Fella, page 17
The point was being driven home forcibly to Lang that he would have to seek to increase the number of important trade union leaders among his supporters. He was not pleased with the final composition of the Upper House nominees caucus had selected on 19 December.304 For different reasons, his disappointment was shared by many in the Trades Hall: ‘The Government’, union officials were reported as saying, ‘has shown more regard for the friends and relatives [of MLAs] than for men who have given life-long service to the movement’. The ‘officials’ illustrated the general Labor doubt as to whether the Legislative Council was for patronage or extinction by pressing for recognition of the rights for appointment of union leaders ‘whose claims have been disregarded’, and at the same time indicating that ‘a censure will be launched against [Lang] at the conference’, unless he moved for abolition.305
Lang was now convinced that he had to be seen to be seeking the end of the Upper House. But the odds against it had increased, and he knew it. In September, as part of Lang’s and the executive’s efforts to find out how many Labor MLCs there were, and where they stood in relation to the Party, Bryant and John Estell, MLC, had interviewed Lang. They pointed out the need ‘of working-class members’, especially those who lived in the country, for a monetary allowance to enable them ‘to give continuous service’. At Lang’s suggestion, Bryant organized a petition for some form of remuneration and obtained twenty-nine signatures, including several non-Labor members. Carruthers supported it, but did not sign it. On 1 October Lang said that the matter ‘will receive early attention’. But he did nothing about it. In January 1926 news of Bryant’s work for an allowance was leaked in a way that made him look as if he had behaved improperly. In response, he made the facts, including correspondence, available to the press.306 Bryant had remained Party whip after Willis had been preferred to him as government leader. The attempt to humiliate him, whatever its source—and Lang and Willis were suspected—was another serious snub for him. And Lang’s inaction on the question of remuneration to MLCs raised further doubts about his real attitude to the Upper House, for it was very difficult financially, if not impossible, for many Labor men to attend the sittings regularly.
Nevertheless, cabinet decided formally on legislation to abolish the Legislative Council early in January 1926. It was said that Lang had forced the decision through. But on 8 January he would neither confirm nor deny it.307 On 11 January in caucus McTiernan, amid cheers, explained the drafts of two bills, one to abolish the Council, the other to amend the Railways Act to provide for the retention by the MLCs of their gold passes. Recalling the direction of caucus of 16 October 1925 to the government to attempt to do away with the Council, one MLA was reported as saying that ‘The Cabinet did as it was instructed to do … There is just a little too much desire on the part of some members of the Ministry to take credit for things which are being done’.308
Responding to a background of public discussion, which included Bavin’s restatement of his opinion of the governor’s prerogative to refuse ministerial advice in certain cases, and strong doubts about the reliability of all the Labor MLCs to vote for abolition, Lang said that they were ‘bound in honour to keep [their] pledge or resign’.309 But it was clear on 19 January, when the Legislative Council voted thirty-four to twenty-seven on Carruthers’ motion to accept an adverse report on the parliamentary elections bill, that the government did not control the House.
On 21 January Willis moved the second reading of the constitution (amendment) bill which provided for abolition. He stonewalled next day as desperate attempts were made to rally all the Labor members. One of them, J. W. Percival (appointed in 1921), had disappeared from Sydney. Willis was challenged to take a second reading vote, but he dared not, and was fortunate to have the debate adjourned on a division of forty-four to forty-three.310 Two non-Labor members were in the majority: the remaining forty-two comprised all of Lang’s twenty-eight nominees; ten of Storey’s seventeen; Dooley’s one; and three of the fifteen pre-1920 men. A total of sixty-one Labor Party members had entered the Upper House from 1899; fifty-four of them remained in 1926; forty-eight were present at the 22 January division, including the president, Flowers, who did not vote, and five of them voted against the adjournment—N.J. Buzacott, Farrar, T. D. P. Holden, Andrew Sinclair, and John Travers, all pre-1920. Bryant was among the six absentees.
Parliament was prorogued until 9 February to cancel pairs made by some Labor MLCs. The Nationalists began a public campaign against abolition. Forty-six non-Labor MLCs signed a ‘memorial’ opposing the government’s action; it was approved of by Flowers and B. B. O’Conor, chairman of committees, and sent to the Dominions Office by the governor on 3 February without telling the cabinet.311 To counter the fact that he had not mentioned the subject in his election policy speech and the claim that therefore he had no mandate for abolition, Lang said that he had pointed out that ‘we would give effect to the Labour platform … as opportunity offered’.312 Bavin percipiently observed that the premier did not want abolition, but was creating a situation which would enable him ‘to pose as the strong man of the Labour Party before the A.L.P. conference soon to be held’.313
With the opposing groups mobilized as fully as possible at the time, the Legislative Council refused the reintroduction of the abolition bill on 23 February 1926. The vote of forty-seven to forty-one nullified the legislation.314 The five pre-1920 ‘Labor’ MLCs mentioned above again voted against the bill; of them it had long been known that Farrar, Sinclair (and Flowers) had defected over conscription in 1916; the other three had shown by their voting patterns that they regarded themselves as non-party men. Both Percival and Bryant voted this time—against abolition. Bryant and Carruthers were well informed on the disposition of the forces. It is hard to conceive that Lang did not also know the details.
Of the six Labor MLCs absent on 23 February, P. G. Hordern (1921) was sick (he died on 1 April). The others were T. G. Murray (1921) and four Lang appointees, C. A. Akhurst, W. P. Kelly, J. D. Lyons and D. M. Smith—they were expelled, with Bryant and Percival, but the Party did not go through the farce of ejecting the pre-1920 defectors.
Lang said that he still hoped to get rid of the Council, but the general opinion of the MLAs was that, even with additional appointments, it would survive the current parliament. The premier was dissatisfied with the system of selection of candidates whereby the executive called for nominations and, after inquiry, endorsed those eligible and referred the names to caucus for selection. It was reported that he intended to seek power from the forthcoming conference to select the nominees himself.315 This was the first public indication that Lang perceived that his endeavours to abolish the Upper House had put him into a position where he could rise above the various factions, and be seen as the strong man of the Labor Party. The circumstances were propitious for him, for the tenuous hold Magrath and Tyrrell held on the executive was slipping further, and the coalition of the AWU, under Buckland, and the militants, with Beasley coming to the fore, was essentially unstable. To improve his opportunity for domination Lang decided to confront the governor.
De Chair had obviously been unhappy in appointing the twenty-five Labor MLCs in December 1925. Abolition of the Legislative Council had not eventuated. But additional Labor nominees would probably achieve it. The constitutional position was clouded. There seemed to be conventions to keep the number of MLCs below that of the MLAs; to refer to the electors such a fundamental question as the extinction of a House of parliament; and to concede that the governor had some personal authority in those areas. De Chair was impressed by those supposed rules. Yet the Constitution could be amended by affirmative votes of both Houses. De Chair’s feelings had been stiffened by advice from the Dominions Office and by pressure from conservatives in New South Wales, exemplified by the Nationalists’ memorial and by the Sydney press.316 The governor formally told Lang and McTiernan on 4 March 1926 that he would not accept ministerial advice to make additional appointments to the Upper House.317 The decision had been anticipated and Lang had previously arranged for McTiernan to go to London to argue the constitutional case for the government with L. S. Amery, the secretary of state for the dominions.
Once again Lang had made a decision without discussion with his colleagues except, of course, McTiernan. In March Evatt was going to England to appear before the Privy Council, and the view was put that, if any representations to the Dominions Office were necessary, he could make them; it was also argued that in any case there was no point to the project, as London’s opinion was already public knowledge. But Lang knew what he was doing and, with the cabinet pacified, the attorney-general left Sydney on 17 March. By then the question of the possible recall of the governor had been abandoned by the government and McTiernan’s mission was said to be to try to have the powers of the governor defined in regard to the acceptance of ministerial advice to appoint MLCs.318
McTiernan returned on 17 September. His memorandum on his negotiations with Amery appeared in various forms in the press on 13 November, and on 16 November was ordered to be printed by the Legislative Assembly. He reported that he had had three interviews with Amery, putting it to him that it was the New South Wales government’s duty, alone, to interpret the constitutional practice in that State, and that Clause No. 6 of the Governor’s Instructions, which seemed to give him the authority to dissent from ministerial advice on certain cases (and report the details to the king) was a dead letter in 1925.319 Amery adhered to his position that the specific case of recommendations concerning the appointment of additional MLCs was a matter to be settled by the governor and cabinet in Sydney; and on Clause No. 6 he said that the Royal Instructions applied to all governors in the self-governing parts of the Empire and could not be ‘considered with exclusive preference to New South Wales’.320 McTiernan argued that the inability of the dominions secretary ‘to issue an authoritative declaration’ did not support de Chair’s ‘digression from the constitutional path’, and he told the governor that he should accept advice on constitutional practice from his attorney-general. De Chair did not agree, and suggested that the impasse might be dissolved by the government asking Amery to recall him.321
Amery was a member of Stanley Baldwin’s Conservative Party cabinet. He was in personal communication with de Chair during the period Lang sought additional MLCs in late February-early March 1926. On 1 March he wrote to the governor:
that while the arguments in favour of … accepting (ministerial) advice … are generally conclusive, I do not hold that the Governor is a mere cypher and has only to do what he is told … even in a case when he is quite certain that what they are asking is contrary to the wish of the people and constitutionally wrong.
He said that at the time of the December 1925 appointments, he had been informed by Sir Timothy Coghlan, the agent-general for New South Wales in London, ‘that there could be no question of an attempt to get rid of the Upper House in the present Parliament’; and continued, ‘I do not know how far he was misleading me deliberately, but undoubtedly your Premier seems to have played a very shifty game about this’; concluding, ‘But I daresay [Lang] is only bluffing [in 1926) and that you may hear no more about it presently’. Amery reiterated his opinion that he should not ‘intervene officially in what is an internal constitutional dispute’.322
On 19 April Amery privately informed de Chair of the widespread interest that the New South Wales constitutional case had created. He stressed that the governor was ‘in a very strong position’; he had heard of McTiernan’s journey, but added, ‘I confess I do not know what he expects to get out of me’.323
There was definitely nothing to be got out of Amery. He had made his position perfectly clear in the cable that he had sent to de Chair and which the latter had transmitted to Lang on 3 December 1925; he had said then ‘that established constitutional principles require that the question [of appointments to the Legislative Council] should be settled between the Governor and Ministers’. To a degree Lang was now open to criticism for reducing the State’s independence by seeking some kind of Imperial intervention, and he was rebuked by the press. But the operation fitted into Lang’s overall strategy. Coghlan had not deceived Amery.324 Lang did not intend to abolish the Upper House and he knew that the cabinet decision, made in January 1926, could not be implemented. Now, in an endeavour to maintain his role as popular hero in the Labor Party, as his main supporters were losing their power, he had to be seen still as the strong man—this time taking on the British government as well as the governor. Again, he knew he could not win, but that was irrelevant. It was his reputation that counted. More than ever he could appeal to the broad mass of the Party and labour movement. Caucus dissidents could be checked. He could transcend the factions, however they blended at the April conference, when the emotional effects of McTiernan’s mission to London would be felt by all delegates. Beyond the ruins of the Upper House lay nirvana.
The unfolding of the events connected with the bid to wipe out the Council illuminated not only a fundamental mark of the Labor Party—its visionary leaven which bordered on irrationality and was wide open to exploitation by a demagogue—but also a fictitious quality of the New South Wales, indeed the Australian, constitutional system.
The governor was an integral part of the Constitution. He was supposed to represent the British king, who was also king of Australians, but in fact he represented the British government, and reported to his fellow countryman, the dominions secretary. At the extreme, indeterminate, margin the king might have come into the picture. For all practical purposes the governor was answerable to a British cabinet minister and, provided he did not have London’s disapproval, he could defy his own ministers when he thought it necessary.325 There was an aura of unreality about a context, derived from the colonial era, in which a governor could claim on occasions that he, not the elected government, represented ‘the people’. But despite all the mistiness, his stand had justification in terms of the ‘commonsense’, conservative, foundations of a flexible British-type democracy. Ultimately de Chair had to take account of public opinion and relate it to electoral backing.
Inevitably, there were legal arguments for and against de Chair’s resistance. Bavin and others supported it ably: Evatt and McTiernan criticized it effectively. De Chair decided that the electors agreed with him and that they supported his resolve not to appoint any more MLCs. He was prepared to grant a dissolution of the Legislative Assembly to solve the problem. Lang argued that he had been elected to rule for three years and that the question of the abolition of the Legislative Council was a routine matter of government.
There is little doubt, however, that de Chair had correctly assessed the popular mood. In granting Lang twenty-eight MLCs he had been seen to have acted reasonably. The Labor Party’s defeat at the 1925 Federal elections based on the successful campaign of the Bruce-Page government and the reactionary press to associate Labor with subversive groups, and its later development, had impressed him. When the moment of decision to oppose Lang came early in 1926, he reasonably responded, as the premier had expected, to the conservative social and constitutional component with which he was inextricably mixed in New South Wales. His later summing up of the pressures that had been thrust upon him revealed that paranoic and fantastic tendencies were not confined to the Labor Party, and that reactionary neuroses could likewise be merged in democratic processes. In his unpublished memoirs de Chair said:
There was good reason to believe that foreign elements were behind the movement to recall the Governor, and wreck the Constitution, and to establish a Communist Government, and that the Premier and some of his supporters were being run by these foreign intriguers.326
The portents indicated that a year’s respite from annual conferences had, if anything, increased the enthusiasm that these functions generated in the Labor Party. Magrath and Tyrrell’s control of the executive was clearly lost as the preliminaries proceeded for the selection of delegates and in the disposition of factions for the 1926 April gathering. In January Garden had congratulated Lang on his forty-four-hour legislation—probably the first hint that ‘the irrepressible Jock’ wanted to come in from the cold.327 The Labor Council, mainly through Beasley and O’Reilly, had successfully gone on the offensive against Tyrrell’s moves to ban its affiliated unions from the Labor Party. With Beasley, Garden and Howie prominent, another union congress in February claimed that the leagues, with seven delegates for each five-member electorate and four for each three-member electorate, had disproportionate representation at Party conferences, compared to unions, with one delegate for each thousand members or part thereof. The congress revived the idea of group representation as discussed at the 1924 Party conference. Magrath labelled it a Communist gathering, though O’Reilly and other Labor unionists attended.328 There was much unrest in various leagues against the executive.
By the eve of the conference, O’Reilly, who shared some of Loughlin’s views about the ‘reds’, without by any means being dominated by him, had organized a group of new Trades Hall moderates opposed to both the militant industrialists, best represented by Beasley, and the Magrath–Tyrrell faction. The AWU had kept up its pressure and promised to be influential at the gathering.329
Lang was relaxed and confident: ‘The most valuable asset of the Labour party is its vitality’, he said, and declared that if he possessed
the confidence of the conference, it will [be] … because it is universally recognised that I have faced our enemies and beaten them, and have done as much for the country and the party as was humanly possible during our first months of office.330
