Introduction
The documents drawn from the files of the Dominions Office used in this paper, principally concern the period between the Lang Ministry's accession to power in November 1930 and its dismissal in May 1932. However, in order to explain the events of that period and the discussion and arguments contained in the documents, I have endeavoured to set the problem within the wider context of colonial constitutional history in Australia. To this end I have devoted some attention to those crises preceding the events of 1930-32 which were drawn upon as precedents by all parties in the dispute. Thus, certain documents from the Lang-de Chair troubles (1925-27) have been used as well as others which predate November 1930. In order to conclude the story I have also used certain documents after May 1932.

The developments related are well known to every Australian legal historian. However, they have been discussed almost exclusively from an Australian viewpoint and without reliance upon the records of the Dominions Office. Since the Secretary of State for Dominion Affairs was, after the Premier and the Governor, the most significant figure in the controversy, and since the expert knowledge and advice of his officers made a significant contribution to subsequent events, this seems to be a gap in knowledge which needs to be filled. A few of these documents were printed and are well known to historians, but many of equal importance are considered here. I believe that they add significantly to our understanding of the role of the Governor of an Australian State and, more particularly, help to explain the conduct of Sir Philip Game during the events related. They also serve to increase our understanding of the working and sources of information of the Dominions Office at this time.

The constitutional background
Although New South Wales became part of the federation known as the Commonwealth of Australia in 1901, it preserved its separate relationship with the United Kingdom. Constitutionally unaffected by the Balfour Report of 1926 and the Statute of Westminster, the government of New South Wales remains, in theory, completely under the control of the British Parliament, though in practice it is governed by the conventions of British non intervention identified and developed (in the case of the States) since the 1920s.

The history of the Australian States is liberally sprinkled with clashes between Governor and government and between Lower and Upper Houses. The Governor's exercise of his prerogatives had declined steadily in keeping with the growth of Australian nationhood. A Governor who intervened in local politics did so at the risk of sharing the fate of Sir Gerald Strickland, obliged to resign by the Secretary of State for Colonial Affairs at the New South Wales Ministry's request in 1917.

In Queensland a series of disputes was resolved by agreement upon deadlock provisions in 1908. In 1917 the Labor government twice passed bills for the abolition of the Upper House through the Legislative Assembly. Twice the Legislative Council rejected the bills. In accordance with the deadlock provisions of 1908, the issue was put to the State in a referendum. The proposal for abolition was soundly defeated. Nonetheless, only three years later the Labor government obtained the appointment of a former Labor leader as Governor and indeed the Acting Governor to 'swamp' the Legislative Council despite the deadlock provisions and the referendum result.

The Labor Government used its majority in both Houses in 1921 to pass a bill abolishing the Legislative Council. This bill was reserved but received the Royal assent in 1922 on Churchill's advice as Secretary of State for Colonial Affairs. He stated the government's policy on 11 March. 'After careful examination of all the circumstances, I cannot but regard the matter with which the Bill deals as essentially one for determination locally ... it would not be in accordance with established constitutional principles that His Majesty's Advisors should intervene to prevent the Bill from becoming operative. I have had accordingly no alternative but to advise His Majesty to assent to the Bill.

Trouble in New South Wales 1925–1927
In 1925 the Labor Party, led by John Lang, came to power in New South Wales. Inspired by the success of the Queensland and Tasmanian governments, Lang set out to abolish the Legislative Council. After four government measures had been defeated in the Council he advised the Governor, Sir Dudley de Chair, to appoint twenty-five new members. The Governor felt that fifteen was sufficient and stated his belief that the Premier's real object was to abolish the Upper House. Lang refused to accept only fifteen appointees and appealed to the Secretary of State, Amery, to instruct the Governor to follow his Minister's advice. He replied in early 1926: '. . . it would not be proper for the Secretary of State to issue instructions to the Governor with regard to the exercise of his constitutional duties, ... It would in my opinion be wholly incompatible with the status of New South Wales in the Empire that Ministers at home should purport to intervene in its internal affairs'. Privately however, Amery advised de Chair to give way and shortly afterwards the Governor made the twenty-five appointments asked.

As the Governor had feared, the government prepared a bill for the abolition of the Legislative Council. However, in March 1926 the Council refused leave to introduce it by six votes. Several new Labor members crossed the floor to ensure the government defeat, apparently finding their seats too comfortable to leave. Again Lang advised the appointment of additional members, but the Governor refused outright without a 'warrant' from the electorate. The Secretary of State privately told the Governor: '... that the overall intention of your Premier to abolish the Council creates a difference in the situation' and added that 'should this exercise of your constitutional discretion result in any protest or demand for your recall, you may be assured of my support'.

The final phase of the troubles came after a further series of bills were amended or rejected by the Legislative Council. An election was clearly approaching due to internal differences within the government. Lang advised the appointment of ten additional members and promised not to attempt the abolition of the Council before the next elections. The Governor refused. Owing to a split in the Cabinet, Lang advised the dissolution of Parliament in May 1927 and resigned. At the general election he was defeated and Bavin, leader of the Nationalist Party, took office.

Recognising that the respite for the Legislative Council was only temporary, the Bavin Government determined to entrench the position of the Upper House in the constitution. A bill was passed through both Houses of Parliament on 15 April 1929 inserting section 7A into the New South Wales constitution. This provided (and provides) that no bill for abolition of the Legislative Council shall be presented for the Royal Assent unless it has been approved in a referendum. Furthermore, section 7A itself could only be amended or rescinded by a similar referendum. The bill, being a constitutional amendment, had to be reserved for the Royal Assent. The Bavin ministry, realizing that it would not long remain in office, asked Sir Dudley de Chair to request a speedy assent to the measure. The Secretary of State had no objection and the Royal Assent was given on 15 November 1929.

In London J. H. Thomas had replaced Amery as Secretary of State for Dominion Affairs on the change of government in 1929. In January 1930 Sir Dudley de Chair was succeeded as Governor of New South Wales by Air Vice-Marshal Sir Philip Game. In November a general election was held and the Labor Party achieved a majority in the Lower House. John Lang again became the State Premier.

The second Lang ministry
Immediately after forming a government the Premier asked the Governor to appoint sufficient members to pass a bill for the abolition of the Legislative Council. When Sir Philip Game questioned the legality of such proceedings the Premier procured for him the advice of the Crown Law Officers that such an act would be valid even if there were not compliance with the provisions of Section 7A for a referendum. The Governor's correspondence shows that initially he was quite willing to comply with his Ministers' advice since they had received an electoral mandate and the Crown Law Officers, advice was favourable. On 7 November the Governor informed Lang he would accede to his request and advised the Secretary of State accordingly.

On the evening of 14 December, Lang requested the Governor to attend an Executive Council meeting the next day, and to immediately make eighty appointments to the Legislative Council. Notice had been given of the intention to introduce two bills on 2 December into the Council to repeal Section 7A and to abolish itself. The Governor asked the Premier to see him on the morning of 2 December. He described the interview in his dispatch dated 29 December to the Secretary of State.

I pointed out to Mr. Lang that ... I had concurred with nomination of additional members as soon as we had agreed on numbers and it was not treating me very fairly to spring a demand for so large a number on me at the very last moment when he had had over three weeks in which to discuss the matter. I told him that it did not appear to me to be in accordance with either the decencies of public life or with the needs of the situation to flood a Council of 87 members with 80 additional members before the Council as it existed had shown any disposition to obstruct his legislation and that I felt bound to refuse. Mr. Lang asked me if my decision was final and I said that it was so.

Despite this setback, Lang introduced the bills into the Council later that day. Privately the Governor was willing to concede the eighty appointments. He informed the Secretary of State by telegram on 4 December that 'should the Council throw out the Bill my intention is to agree to additional appointments the Premier may request. I must accept his view as to numbers after discussion. Mr Lang has gone out of his way to restrain criticism by the Press'. He advised the Secretary of State on 11 December that if the bills were passed, in view of the Crown Law Officers' advice and despite the lack of a referendum, he saw no reason to oppose his Ministers' views that the Royal Assent be obtained for the legislation on reservation. 'If you desire my views I see no reason why advice of Ministers should not be accepted'.

King George V, before whom was laid the official correspondence between the Governor and the Secretary of State, took a close personal interest in the dispute throughout. On 13 December his private secretary, Lord Stamfordham, wrote to Thomas's secretary, E. Marsh, at the Dominions Office stating that 'The King is anxious to know what is being done with regard to the telegram from the Governor of New South Wales of the 11th instant recommending that the King's assent should be obtained for the Bills for the abolition of the Legislative Council'. Lord Stamfordham wrote to C. G. L. Syers at the Dominions Office on 16 December thanking him for the Reuters telegram on the New South Wales situation 'which has been read with interest by the King'.

Believing that a referendum was necessary before the bills could become law, the Legislative Council permitted them to pass without a division on 10 December. Lang then announced his intention of presenting the bills for the Royal assent without a referendum. The following day, two members of the Legislative Council applied for and were granted an injunction restraining the President of the Council and the ministers from presenting the bills to the Governor without having held a referendum. On 23 December the Supreme Court of New South Wales in the case of Trethowan v. Peden,'3 upheld and continued the injunction in perpetuity. The Governor notified the Secretary of State accordingly.l4 The Lang Government immediately prepared an appeal to the High Court of Australia.

Meanwhile, the business of governing New South Wales had to continue. The Lang Ministry introduced legislation to cope with the economic problems it faced. Its first move was the Reduction of Interest Bill which was intended to stop the flow of funds from New South Wales to overseas bond holders. This the Legislative Council prevented on 26 March 1931 by resolving that the bill be read again in six months time. The Legislative Council also referred the Industrial Conciliation and Arbitration Bill to a select committee. The Premier asked for additional members to force his legislation through. The Governor, aware of the weight of opinion in London, Canberra and Sydney against the Lang administration's financial policies, refused. On 28 March the Federal Labor Party expelled the New South Wales Labor Party for its opposition to the financial policy of the Federal government. The New South Wales government's repudiation of the public debt was seen as a clear threat to the credit and standing of all the other Australian governments which faced financial difficulties of equal severity. Despite petitions and state wide public demands that he dismiss the Lang ministry, Sir Philip Game declined to act. In his telegram to the Secretary of State of 29 March 1931 he explained that he was not convinced that Lang would lose an election at this time.

The High Court appeal was rejected and the Lang government then appealed from this decision to the Judicial Committee of the Privy Council in London. The New South Wales government requested the intervention of the British Attorney-General to support their case. The British Cabinet discussed this at 10 Downing Street on 31 March 1931. On the advice of the British Attorney-General, Sir William Jowitt, the MacDonald administration declined the request. It was felt improper to instruct the Attorney-General as to what line of argument he should take. He might intervene if the court requested him to do so but not otherwise, and he might argue as he saw fit.

Amery, the former Secretary of State for Dominion Affairs, passed on a cable he had received from New South Wales in a private letter to Thomas dated 2 April 1931. The cable was from 'an old College friend who is a Judge in New South Wales'. It stated in part: 'With reference to Lang's proposed request to recall Governor Game, intention is to swamp Council and pass revolutionary measures not foreshadowed in election speech...'

Amery commented:

As regards recall, I am quite clear that there is no ease for it on merits even if recall were still a constitutional method of dealing with a State Governor... I should say Game would be fully in his rights if he dismissed Lang out of hard and took his chance at an election.

Willis took over at this time the unenviable post of Agent General for New South Wales in London. On 9 June he put his government's case to Sir E. Harding and H. Graham Bushe in the Dominions Office. Further discussions between Willis and the Dominions Office took place at irregular intervals. One telegram reporting on the discussion, marked secret and personal, was from the Under Secretary of State for the Governor for dispatch to him via the United Kingdom High Commissioner in Australia other than by telephone or telegram. Clearly Harding feared that the New South Wales government had access to the Governor's telegrams and telephone. The Governor later informed Thomas that this was an unnecessary precaution. However, Thomas subsequently expressed similar suspicions openly when in a letter to Willis dated 9 July he asked him to inform the Premier that, 'unless the telegrams were shown to Mr Lang by the Governor, I am at a loss to understand how he is in a position to make references which purport to be quotations from them'.

The Legislative Council continued to obstruct government legislation. The Governor reported that Lang had again asked him to swamp the Council in order to pass an Insurance Bill in a telegram to the Secretary of State on 26 June 1931. Game refused. A few days later he reported a further request for 60 new members in order to allow the Income Tax Bill to be passed, which he also refused. He had offered Lang twenty-one additional members, enough to pass the Insurance and Transport Bills, but not the Taxation Bill and other extreme legislation. In a telegram to the Secretary of State of 16 July 1931. Game outlined the result:
16th July Secret ... Have endeavoured to reach compromise on basis of appointment of 21 additional members ... At long informal meeting [with my Ministers] I stated my position quite openly, pointing out that analysis of voting strength in Legislative Council warned me that if I gave more than 21 I would find myself in position of having taken all power from the Legislative Council that this would result in indirect surrender of principle which I have thought it right to uphold, namely that I should not be acting impartially if I eliminated the Council ... Premier informed me this morning that Cabinet could not agree to proposed compromise because it would put Ministers in position of abandoning position for which they contended, namely, that I am bound to take their advice.

On 4 July Lang sent a telegram to the Agent-General for New South Wales urging: 'the Secretary of State for the Dominions to request the Governor of New South Wales to act on the advice of his Ministers'.

On 6 July, Willis called on the Secretary of State to ask him to intervene and ensure the Governor made the additional appointments asked. The following day the Secretary of State approved a note for communication by telephone to the Governor informing him of Lang's request. He advised that no answer could yet be given, though his attitude was likely to be that of Amery in 1926. He further suggested that a compromise on a limited number of members might be reached with Lang, whilst emphasizing that the matter was entirely one for the Governor's judgment.

Sir E. J. Harding passed the Secretary of State's message on to Sir Philip Game by telephone. A note of the gist of their ensuing conversation was made by the Under Secretary of State. The Governor said that he thought Thomas's unofficial suggestion of a compromise was impractical in that the Premier would not accept it if made, and even if it was accepted he doubted if it would be adhered to. He asked whether the Secretary of State had meant the official or the private attitude of Amery. Harding replied that the official attitude was intended. He meant the reply of Amery on 1 December 1925, on the appointment of the twenty-five members, whereas Game presumably took this to mean Amery's later refusal to issue instructions to the Governor. Thus Game probably interpreted this as a stronger gesture of support than Thomas had intended, assuming Harding had interpreted Thomas's intentions correctly. Game also stated that whereas in March he had told the Secretary of State that he thought the Lang Government would be returned in an election, he was now not so certain. He said that he had been bombarded with messages of support and felt that there was strong feeling in the State in the Governor's favour.

The Lang government now attempted to put pressure on the Secretary of State to persuade him to intervene. On 8 July the Legislative Assembly passed a resolution dealing with what it termed 'obstruction' by the Council and declaring that it was the Governor's duty to follow the advice of his ministers. On 10 July the Legislative Council passed a resolution defending its right to block legislation. On 9 July Lang had sent a telegram direct to Thomas requesting him to intervene and instruct the Governor to obey his ministers. The same morning Willis again had a meeting with the Secretary of State to urge his intervention.

Game's personal relationship with Lang seems to have remained satisfactory throughout the dispute. Game had earlier stated his belief that Lang had helped to modify attacks on him. His turn now came to reciprocate. On 10 July he sent the following telegram to the Secretary of State: 'Secret. Attacks on the Premier in the British Press are not justified, mislead public opinion here and embarrass me. Premier and I are on entirely frank and friendly terms ... If you can do anything to moderate Press attacks shall be very grateful.'

The Dominions Office obliged. Sir E. Harding personally contacted the Times and the Observer and obtained suitable assurances. Similar assurances were obtained elsewhere by Beckett Platt. The Secretary of State was informed accordingly.

Lang repeated his request for the intervention of the Secretary of State in a further telegram on 13 July. The seriousness of his administration's financial position is clearly shown in two of the Governor's telegrams to the Secretary of State. On 16 July he cabled: 'General situation as I see it is that financial crash is imminent unless the Commonwealth Bank finances the State . . .’ Three days later he cabled: 'Government cannot meet financial obligations Thursday next without assistance from the Commonwealth Government'. The Commonwealth, albeit reluctantly, did provide some temporary assistance to New South Wales.

The Secretary of State felt that he should put the question of a reply to Lang's request for intervention to the British Cabinet. The legal advice of the Solicitor General, Sir Stafford Cripps, was obtained and discussed at a meeting on 13 July. Thomas, Sir Stafford Cripps and other legal officers, Sir E. Harding, Sir H. Batterbee and Bushe attended. Sir Stafford Cripps's advice was clear. The New South Wales government could deal only with the Governor. They could neither complain direct to the King nor require their complaints to be forwarded to him. The King, acting on the advice of the Secretary of State for Dominion Affairs, might intervene, but only if the Governor acted unconstitutionally. It was felt that Amery had gone too far in 1926 in suggesting that intervention was impossible under any circumstances. However, Sir Philip Game had acted constitutionally and there was therefore no case for intervention here.

With the addition of a note summarizing the conclusions of this meeting, Sir Stafford Cripps's views formed the basis of the memorandum which Thomas later circulated to the Cabinet. The King was sent an advance copy of this memorandum which Colonel Sir Clive Wigram, who had succeeded Lord Stamfordham as the King's private secretary, acknowledged on 22 July in a letter to Syers:

The King wishes you to thank Mr Thomas for sending the advance copy of his paper . . . which His Majesty has read with the greatest interest.

His Majesty was glad to see that Mr Thomas has laid it down so clearly in paragraph 13 that the Prime Minister of New South Wales is not on a footing with the Prime Minister of the Commonwealth and that the former can only approach the King through a Minister of the United Kingdom. Mr Lang has quite misunderstood the conclusions of the last Imperial Conference and has confused Governors-General with Governors.

The Cabinet met on 30 July. Thomas's memorandum was briefly discussed. It was accepted that the Governor had a discretion to act as he had done. Amery's decision in 1925 was recalled, and it was agreed that the constitutional position of a State Governor had not changed since then. The views of Thomas were unanimously endorsed by the Cabinet. It was accepted that Sir Philip Game had not acted unconstitutionally and that therefore, whilst intervention was possible in the proper ease, no question of it could arise here. Thomas's proposed reply to Lang outlining this, was adopted for transmission via Willis if no settlement could be reached. For reasons of tact it did not discuss whether intervention was possible under other circumstances.

The British representative in Australia, Gt. M. Crutchley, observed events in Sydney from comparatively close quarters in Canberra. From time to time he reported on the situation to the Under Secretary of State for Dominion Affairs. On 28 July he sent a telegram to Harding which included the following passage:

the secret organization referred to in my dispatch of April 22nd to the Assistant Under Secretary of State has developed well. It numbers 5,000 in Sydney and 18,000 in Country and is working secretly with the Police. The so-called White Army which is anything but secret is a source of danger rather than safety.

It is an interesting question how, if this information is correct, the High Commissioner came to be privy to it. His observations can scarcely be described as those of a disinterested observer. Despite a diligent search the earlier dispatch referred to has not been found to throw further light on these brief remarks. The British Representative also commented that Bavin was likely to be replaced shortly by the Nationalist Party. Soon afterwards Stevens took over as leader of the Opposition.

On 31 July the Secretary of State passed on to Willis his formal reply to Lang's request that he intervene, declining to do so in accordance with the decision of the Cabinet. On 7 August Lang sent an angry reply to Willis which he duly conveyed to the Secretary of State at a meeting with him. Thomas explained to Willis that the decision was the unanimous choice of the Cabinet and not a personal one. Willis then informed Lang by telegram that he believed that Thomas was sympathetic and suggested accepting a limited number of appointments now so that the Governor was conceding the principle.

Troubled by the interference of support or sympathy by Thomas for Lang in Willis's telegram, the Governor sent a telegram to the Secretary of State offering 'to make way if necessary for someone else who would feel justified in accepting the Premier's advice'. He declined to make the appointments whilst having grave doubts as to whether the public supported the Lang government, and unless the Legislative Council put itself clearly in the wrong. The Secretary of State assured the Governor in reply that the conclusions Lang had drawn from the telegram from Willis were quite incomplete. But Lang continued to misinterpret or chose to misinterpret, the Secretary of State's views. He advised the Governor to accept Thomas's opinion that the Governor would be conceding the principle if he made a limited number of appointments and agreed to make more later if these proved insufficient. In fact, that was not the opinion of Thomas, but of Willis. It could however be put to the Governor as the Secretary of State's opinion as a result of the, perhaps deliberate, ambiguity in the Agent-General's telegram describing his interview with the Secretary of State.

Thomas now added to the pressure on the Governor by not completely denying the validity of the Premier's interpretation. His telegram to the Governor of 1 September 1931 stated that he had once again explained to the Agent-General that:

In the circumstances of the present case I could not give instructions to Governor but if suggestion which had been made of limited number of appointments would afford a solution which would overcome difficulties I had intimated privately to you that I would regard such a solution as a happy one and was prepared to intimate the same to you again.

Thus Willis and Lang maneuvered Thomas into adding weight to Game's own inclination to compromise. Thomas appears to have seriously misunderestimated both the cleverness of Willis and Lang, and the difficulties in which he was placing Game by giving him private advice and simultaneously making that advice known to the Premier through Willis. Private advice made known in this fashion was little short of intervention and must have limited the Governor in the exercise of his discretion.

"A deeper darkness"
On 19 November 1931 the Premier advised the nomination of twenty-five new members to the Legislative Council. He claimed that he was entitled to some support in view of the Council's past attitude and the open boast of some of its members that they would throw out his legislation. He had previously spurned the Governor's offer of twenty-one appointees and his request now was for only four more than that. The Governor finally gave way and agreed to make the appointments. In his telegram to the Secretary of State on the following day, he explained his reason. Feeling in the country had turned against Lang, but the government remained united and had a majority of twenty in a Lower House of ninety. His telegram concluded:

In view of postponement of appeal case till April I feel I shall not be able to maintain refusal to make any appointments until case is decided. I foresee if I refuse now I shall most probably be placed in position before long where ... I should not be able to stop at twentyfive but should have sooner or later to give sufficient appointments to carry rejected legislation. Such number might give Government a permanent majority to carry any and every extreme measure, and extreme faction would probably gain ascendancy owing to what they would represent as my obstinate partiality. Should I refuse appointments until appeal case is heard and should it result in abolition extremists would be in even stronger position. After reviewing all arguments and considering possibilities I have reached conclusion that my proper and wiser course is to accept advice and have done so.— GOVERNOR

Many people in New South Wales greeted the news with consternation. The following morning's headline in the Sydney Morning Herald read: 'Political Bombshell. Upper House to be Swamped.' Its leader of 21 November 1931, after reviewing the Governor's long stand against the Premier stated: 'His Excellency is a fearless man, but he has failed us.' It concluded bitterly: 'Now that a deeper darkness is falling it behooves all good citizens to get together and take council against a common enemy.' The Argus in Melbourne regretted in its leader of 24 November that there was now nothing to stop any 'irresponsible demagogue' from taking over government. With the exception of a few radical papers in Sydney which greeted the news with jubilation, the Australian press uniformly regretted the decision and denounced Lang. Many of the Governor's former supporters now turned against him. Beckett Platt passed on some private information he had received from New South Wales in a letter to Sir H. Batterbee in the Dominions Office:

My informant added that private letters from New South Wales show that there is a lot of bitter feeling against the Governor on account of what is regarded as his surrender to the Premier.

On 23 December 1931, E. H. Mitchell, one of the King's secretaries, sent the following letter to Sir Edward Harding:

The King was much interested to read the dispatch from the Governor of New South Wales which was enclosed in your letter of yesterday to Wigram.

It is certainly not easy to reconcile the recent action of the Governor in accepting Mr Lang's advice to appoint 25 additional members to the Legislative Council in view of Paragraph 10 of the dispatch in question, and His Majesty will be interested to learn whether a further explanation is furnished by Sir Philip Game in some further dispatch

Lang was now able to have two of his controversial bills rushed through the Council in early October. These were the Moratorium (Amendment) Act and the Reduction of Interest Act. In his letter to the Secretary of State of 9 October the Governor reported that the only bill now held up by the Council was the Industrial Arbitration and Conciliation Bill. On the fiscal side he reported: 'State finances are still in a precarious position.' Lang wanted no dissolution before the Privy Council appeal result became known, and the Governor felt it was 'still doubtful how an appeal to the electors would result'. Lang engaged in a bitter dispute with the Commonwealth government over the Financial Agreements Enforcement Act, an Act of the Commonwealth Parliament. Lang took this dispute to litigation before the High Court of Australia.

During this difficult period Sir Philip Game was contemplating what his position would be if the Lang government won its appeal to the Privy Council and the Legislative Council was abolished. On 18 August he had written a confidential letter to the Secretary of State on the problem. Foreseeing the prospect of an extended period of 'Single Chamber Government' he felt that the pent up feelings of the government's supporters would force it to bring forward extreme legislation whether the Minister wished to do so or not. The Governor requested therefore 'guidance as to the legal and practical position of a Governor of an Australian State under existing Acts, who may find himself called upon to assent to a Bill passed by a Single Chamber Parliament which may appear to him to be of such an extreme nature as to warrant an appeal to the Electors before it becomes law'. In a letter to Sir E. Harding dated 17 November the Governor again appealed for advice.

I see the Privy Council Appeal is not to come on till April but if I survive as long and the Legislative Council goes I do foresee the possibility of having to withhold assent ...
You need not anticipate my using the power except in the last resort of course ...

The Secretary of State replied to the Governor's Ietter of 18 August in his confidential dispatch of 13 October 1931. Sir E. Harding amplified this in a letter dated 15 February 1932.

... [it seems] that the legal right to withhold assent ... still remains.
But the question whether the exercise by the Governor of his legal powers would be constitutionally proper raises different issues and cannot well be considered except in relationship to the circumstances of the particular case; ...

Harding then referred the Governor to Joseph Chamberlain's statement on this subject.63 In a private letter to Harding dated 3 April 1932 Game replied:

... I have re-read the extracts from Chamberlain's dispatch in the Queensland correspondence you sent me and he makes it quite clear that in his opinion the very strongest reasons are necessary before a Governor could consider refusing assent ... But I suppose there are limits and it seems conceivable that I may find myself up against them ...

The whole question was rendered academic however by the judgment of the Judicial Committee of the Privy Council on 31 May 1932. On the invitation of the court the British Attorney-General, Sir Thomas Inskip, had agreed to appear at the hearing as an amicus curiae. The Commonwealth Attorney - General, Latham, later joined him and had an interview with the King in late April 1932 on the problem. The judgment dismissed the appeal by the government of New South Wales. The bills repealing Section 7A and abolishing the Legislative Council could not therefore be presented to the Governor for His Majesty's assent until they had been approved by a majority of electors voting in a referendum. The Secretary of State notified the Australian States and Commonwealth accordingly and sent them copies of the judgment.

Friday, 13 May 1932 and its consequences
In Sydney, the crisis was nearing its denouement. The New South Wales government continued to refuse to implement the Commonwealth Financial Agreements Enforcement Act. The Commonwealth Government responded by impounding all the State Government's bank balances. Lang challenged this in the High Court of Australia, which ruled on 22 April 1932 that the action of the Commonwealth was valid. The New South Wales Cabinet then issued a Treasury circular on 10 May instructing all government officials to use a procedure outlined in a previous Treasury circular of 12 April. This procedure, simply stated, involved desisting from the payment of State public moneys into the banks in order to prevent government funds from reverting to the Commonwealth. Officials were ordered to retain money in the Treasury and in the other government Departments receiving funds.

Large sums of money were therefore guarded in government offices in Sydney, and the New South Wales Railways were used to distribute cash in order to pay government officials. Sir Philip Game reported on these events in a telegram to the Secretary of State on 23 April. He informed him that, perturbed at the receipt of the first Treasury circular, he asked Lang for assurances from the Crown Law Officers that the procedure being followed was legal. He had already obtained the Auditor-General's opinion that the Audit Act of 1902 was being disregarded, and the opinion of the Chief Justice that it was ultimately for the Governor to decide, in the absence of any other responsible adviser, on the legality of the circular. On the same afternoon as the High Court's ruling that the Commonwealth could legally impound all State funds in the banks, the Governor saw the Premier and 'told him that I wanted my doubts cleared up because if the Audit Act was disregarded I felt that if I remained inactive I would be in the position of condoning illegality. The Premier promised to send me the opinion of the Law Officers of the Crown ...' The Governor went on to say that:

Strong Press and public pressure has been brought to bear on me during the past fortnight to dismiss Ministers though the best responsible opinion expressed privately, but not publicly, disagrees.

I feel it far better that the Commonwealth and State Governments should decide the quarrel without my intervention, but my hand may be forced by the issue of the legality of Ministers' actions . . .
I feel it quite clear I cannot dismiss Ministers because their action offends my own and other people's sense of public integrity, however much warrant there may be for this opinion.

I am not so clear however, as to whether I can do so on the grounds of the illegality of administrative acts which do not require my signature, or whether by so doing I should usurp the functions of the Courts.

I am reporting this information only and not for advice but should you wish to make any comments I shall of course be glad to receive them.—GOVERNOR.73

The Secretary of State immediately instructed his officers to draft a reply to the Governor setting out the legal position. E. Grattan Bushe sent the completed draft with a covering letter dated 10 May to the Attorney-General, asking for his views on it. The letter made clear that 'the Governor does not ask for advice or instructions' but that unofficial advice might be helpful to him. The draft attempted to state the constitutional position. Where a Governor was advised to do an act he considered unlawful, then, as in Tasmania in 1924, he should obtain the advice of his Law Officers. If they advised that the act was lawful and he acted on that advice, he could not be said to be acting unconstitutionally. If however a Governor refused to act on advice tendered on the ground that the act was one he ought not to be asked to perform, '... refusal (though a grave step) would not necessarily be unconstitutional but would normally be unwise unless he was reasonably sure ... he could obtain other Ministers capable of carrying on the Government'. Where no question of a personal act by the Governor arose, as in the present case, the position was somewhat different: 'So long as the courts have not settled this issue and the possibility of raising the issue in the courts still remains, it could not, I think, be said to be unconstitutional if a Governor refrained from taking the initiative in restraining his Ministers from action alleged to be illegal. If the courts had pronounced against the legality of any particular action and Ministers still persisted in continuing to perform such action the position would, of course, require further consideration.' The Attorney General concurred in the draft, but in the light of subsequent events it was never sent.

At 6.50 p.m. on 13 Hay 1932 a telegram from the Governor to the Secretary of State was received in the Dominions Office. It was dated 14 May having been sent in the early hours of the morning after the events which it related.

On Thursday 12 May the Governor had become aware of the circular of 10 May putting the procedure outlined earlier into effect. Under Cabinet directions it had been issued to public servants. Game asked Lang for a copy which he received at 5 p.m. It appeared to him and to the Chief Justice to be in conflict with federal law.

I wrote to the Premier that it appeared to me instructions were illegal, and that I could not place the Crown in position of being a party to illegality. I asked for proof of legality or the withdrawal of the instructions and requested a reply by 11 a.m. 13th.

The Premier replied at 11 a.m. on Friday morning that the instructions would not be withdrawn. Both Houses of the State Parliament passed motions of confidence in the Premier during the day. The Governor's telegram described the Lang's reply:

He did not comment on legality but said that the instructions were necessary in order to carry on the essential services of the State. I then asked him to discuss the position, which we did at 3 p.m. I pressed him as regards legality, but he refused to express any opinion. I again informed him that I could not make the Crown a party to breaking the law, and added that if Ministers felt they could not maintain essential services without breaking the law it was their duty to resign. Premier asked me to put this on paper, which I did.

At 5 p.m. Lang replied that:

If your letter of to-day's date means that you are requesting the resignations of Ministers, you are hereby informed that your request is refused.

The Governor at once responded:

Your letter informing me that Ministers are not prepared to tender their resignations has just reached me. In view of this and your refusal to withdraw the circular, I feel it my bounden duty to inform you that I cannot retain my present Ministers in office, and that I am seeking other advisers. I must ask you to regard this as final.

The Governor concluded his telegram:

I sent immediately for Mr. Stevens' Leader of the Opposition, and asked him to form a Government, pointing out to him that if he accepted he made himself responsible for my actions ... On this basis he accepted a commission, and I swore him in as Premier later in the evening. Personal relations between Mr Lang and myself remained entirely cordial throughout.

News of Lang's dismissal reached Canberra at 6 p.m. The Secretary to the British Representative in Canberra, W. C. Hankinson, later wrote to Sir H. Batterbee that there was 'a very great sense of relief in Commonwealth circles'. In Sydney there were wild celebrations. The radical press showered abuse on the Governor while the major newspapers unanimously praised the decision. The Melbourne Herald of the following day felt that 'The Governor had held his hand until the case for dismissal was flawless beyond possible contention'. Throughout New South Wales the reaction was one of relief and general acceptance of the Governor's decision. The Sydney Morning Herald summed this up when it said that they had passed through 'the greatest crisis in the experience of New South Wales since it received the gift of responsible government under the Crown'. In the subsequent elections, the Stevens-Bruxner government was returned with a majority in the Legislative Assembly. Paradoxically it was now obliged to advise the Governor to appoint additional members to the Legislative Council in order to have its legislation passed, which the Governor did later in 1932.

The Stevens-Bruxner Government determined to end the attempt to abolish the Legislative Council by reforming it themselves. The Constitution Further Amendment Act of 1932 was passed by both Houses of Parliament. This and two subsequent machinery acts of 1933 were intended to make the Council impossible to swamp with new members and difficult to abolish. Membership of the Council was to be restricted to sixty members serving twelve year terms of office. The members would be elected by proportional representation by an electoral college consisting of a joint sitting of the Upper and Lower Houses. Details of the scheme are to be found in the Governor's dispatch to the Secretary of State dated 9 June 1933. In order to comply with section 7A of the constitution these bills had to be put to a referendum. This was held on 13 May 1933. Lang and his supporters waged a strong campaign against the proposals.

The Federal Labor Party however supported them, and the government strongly urged a 'yes' vote. The result (YES 716,938 NO 676,034) was a narrow victory for the government. Lang immediately sought an injunction, claiming on a variety of grounds that the procedure followed was invalid. On 5 September 1933 the Supreme Court of New South Wales unanimously dismissed his claims. His subsequent appeal to the Judicial Committee of the Privy Council met the same fate. Lang and his supporters petitioned the King requesting that he not assent to the bills. The Law Officers of the Crown gave their opinion that it was constitutionally correct for the Secretary of State to advise the King to instruct the Governor to assent to the bills after the referendum, despite Lang's protests. This was done and thus by the end of 1933 the Legislative Council had been reformed and was, for the moment, immune to further attack.

The Dominions Office played a very significant role throughout the New South Wales crisis. The Governor provided the Dominions Office with a regular analysis of the political situation. The Dominions Office also drew on other sources, official (such as the British Representative in Canberra) and unofficial, for its information. All the Governor's dispatches and telegrams went to the Secretary of State. The more significant of these were passed on to the King who displayed a considerable interest in the understanding of a complex political problem in a distant part of the Commonwealth. The King's personal views are I think evident in a number of the documents I have quoted but particularly in Wigram's letter to Syers of 22 July 1931.

The Dominions Office was assisted by a number of individuals who had been in, or who had contacts in New South Wales. Sir Dudley de Chair, Amery and Lord Beauchamp all gave advice or passed on information at one time or another. The Dominions Office drew for its legal advice on a variety of sources ranging from its own officers, the Attorney-General, the Solicitor-General (and their staff) to the legal advisors of the Treasury.

The problem only reached Cabinet level twice during the period under consideration, and on both occasions the discussion appears to have been brief. That this should have been so, particularly in the second case, is a tribute to the work of the Dominions Office in preparing the memorandum ultimately accepted by the Cabinet.

Both the Governor and the Secretary of State made considerable use of the telegraph in their communications. The speed with which answers came must have somewhat eased the burden on the Governor. However, it is noticeable that Thomas did not appreciate that his conversations with Willis were likely to be misrepresented by him, and that the New South Wales Premier could also use the telegraph for rapid communication with his Agent-General. The concession Game made of granting Lang twenty-five appointees to the Council, is probably due in part to pressure which Thomas put upon him, possibly unwittingly, by allowing Willis to convey his (Thomas's) views through Lang to the Governor. With the exception of that one lapse however, the Secretary of State did manage to advise Game and provide him with the expert legal and constitutional information he required, without instructing him what to do.

The documents emphasize that, as far as the Governor was concerned, his personal relationship with Lang 'remained entirely cordial throughout' the period. This was not the general impression at the time. Nor, it appears, did Lang ever actually demand the Governor's recall, another popular misconception. They make clear the Governor's initial sympathy for certain of Lang's problems, turning to opposition to Lang's excessive demands. Had Lang asked for the twenty-five members in the first place, instead of demanding eighty, the Governor would apparently have given them without demur. But the Governor recognized that Lang was struggling to control and satisfy the more extreme members of his own party and did not take the attacks on himself to be personal ones. Nor was Game blind to the faults of the Opposition in the Legislative Council.

It is possible that a lesser man, in Game's position, might have either given way to Lang's demands completely or dismissed Lang at a much earlier date. Either course might have provoked one side or the other to plunge New South Wales into civil disorder. At the least, the Governor's recall might seriously have been contemplated. It is perhaps Sir Philip Game's astute reading of the political situation which explains why he was able to disregard his Ministers' advice where Lord Byng had failed. I will concede that the comparison is perhaps not an exact one; one was the Governor of a State while the other was the Governor-General of a Dominion. However, the position of the representative of the Crown in a Dominion prior to the Imperial Conference of 1926 was similar to that in New South Wales in 1932. The point is worth making though, that the decision in both cases was in the end one for the Governor alone. Granted that he acted constitutionally (as I would argue both Byng and Game did) then the wisdom of the course of action pursued depended on his analysis of the political situation. Byng failed to foresee the political consequences of a Conservative failure to remain in office. Game waited until Lang had made himself so unpopular that on his dismissal the Nationalists were backed by a majority in the State and even by the Federal Labor Party.

The doubts felt by the Dominions Office as to the security of their communications with Government House, are most interesting. Certainly Lang seems to have been surprisingly well informed on the Governor's correspondence at one stage. The remarks of Crutchley, the British Representative in Canberra, in his telegram of 18 July 1931, are also of interest. How he came to posses such information on anti-New South Wales government vigilante organizations is a question I am quite unable to answer. And the propriety of his conduct in openly sympathizing with one such organization in his official correspondence with the Dominions Office is, at the very least, open to doubt.

The New South Wales crisis obliged the Dominions Office to make a wide study of precedents and to try and analyse the legal position of the Governor's prerogative. I believe that the statement in the draft telegram of May 1932 prepared for but not sent to the Governor, is the clearest statement of his position at that time in an Australian State. The successful dismissal of his Ministers by a Governor was an example of the exercise of the prerogative which must add to the development of constitutional precedents. Perhaps the conclusion can be drawn that the greater independence of the Governor to match the growing independence of Dominion and State governments may have strengthened rather than weakened the Governor's hand. The occasions for the exercise of his prerogative might be fewer, but he could do so (provided he acted constitutionally) without fear of meeting Sir Gerald Strickland's fate in 1917. And with a policy of non-intervention in internal matters clearly established, both the Dominions Office and the Governor would be less open to the accusation of being partisan in a local dispute. These documents justify their study therefore, not only by the historian interested in New South Wales history but also by the historian whose interest is in the legal and constitutional aspects of the development of the Empire and Commonwealth.

Appendix : Governor's Correspondence

BIBLIOGRAPHICAL NOTE
The documents used in writing this essay came from Dominions Office records which are now stored in the Public Record Office in Chancery Lane. The bulk of them came from two boxes, DO35, 400 and 401. Relevant files from those boxes range from 11156/3 to 11156/120. In footnoting it is these file numbers I have quoted. Where I have quoted an additional number after the file number, that refers to a particular page within the file. A small number of other files have also been relevant and may be found from the file numbers in the DO 3S series.

A few of the more significant documents were printed some years ago as DO 115 Volumes 1 and 2. Their originals are mostly to be found in the two boxes mentioned above.

Documents on the two Cabinet meetings may be found in the Public Record Office in Portugal Street. These include CAB 93/ff6 21 (31) 16 (31 March 1931) for the first meeting, CAB 23/67 4C (31) 7 (30 July 1931) for the second, and C.P. 177 (31) for the Secretary of States memorandum to the Cabinet. Copies of some of this material are to be found in the contemporary Dominions Office files.

The material in the Dominions Office files is not in an easily accessible state. The documents are filed both chronologically and according to subject. However, some documents have been destroyed, others- have not yet been released for security reasons and others again are simply missing without trace. Some of the most interesting material is to be found in the handwritten and often signed comments on the documents and the file covers, made during the period under consideration. Obviously, the material I have mentioned in this essay is only a selection from the files but I hope it includes all the material of real significance on the constitutional and political aspects of the problem.

____________________________________________
Morrison, A.S., Further Documents and Comment on the New South Wales Constitutional Crisis 1930 – 1932, 1984, London, University of London (PhD thesis)

____________________________________________