NSW Labor governments during the inter-war years were particularly unfortunate in the choice of the British Governors they were forced to work with. These Governors were retired senior military officers with highly conservative political attitudes and unused to working with civilian governments and particularly Labor governments introducing economic and political changes that had been endorsed by the electorate. This study represents a new thrust into NSW political history and develops insights based on material in the National Archives, London, and the Game papers in the Mitchell Library. The issues in this chapter have not been significantly explored previously and their analysis demonstrates the distorted views that the British government departments held towards NSW, the leading state in Australia. It is important to note that the Governors were paid, housed and maintained by the NSW government, but they held to the pretence that they were responsible only to the reigning monarch and, at some distance, to the Dominions Office in London who actually recruited them. These men were hostile to the election of Labor governments and tried to thwart them at every turn. They seemed to believe that instead of being a vice-regal representative in a state with a functioning responsible government, they were overseeing a form of Crown colony where they held unfettered powers. Unsure of how far they could ignore instructions given by Labor governments, they consulted their contacts in the Dominions Office in London for advice. Unfortunately for NSW, some of these officers in London were themselves confused as to whether NSW was an independent dominion or a Crown colony. The Governors resorted to their own anti-authoritarian styles maintained their refusal to accept the advice of Labor governments in the conduct of their office.

In the colonial era, the Governors did function initially as military autocrats, but later worked with a nominated Legislative Council and by 1856 with an elected Legislative Assembly. The Governors were given Letters Patent by the British government to preserve their status, but they were required to function on the advice of the elected government. Such a precept is demonstrated in the following Instruction:

The Governor, with the advice of the Executive Council, is hereby authorised, from time to time, in Our name by an instrument or Instruments under the Public Seal of the State, to summon to the Legislative Council of the State such person or persons as the Governor and the Executive Council shall think fit.¹

Traditionally, the governor was obliged to act on the advice of the NSW Executive Council, that is the Cabinet of ministers, and to endorse their nominations. ² Through the issuance of another Royal Instruction, Article Vl, the governor was granted partial independence in the short term and under limitations:

In the exercise of the powers and authorities vested in him, the Governor shall be guided by the advice of the Executive Council, but if in any case he shall see sufficient cause to dissent from the opinion of the said Council, he may act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to Us [sic] without delay, with reasons for his so acting.³

That was how things functioned until the Lang Labor governments were elected in 1925 and 1930 when they introduced political and economic changes to which the Governors took exception. The Governors then resorted to the strict wording in their Letters and Royal Instructions in a way never intended by the British government and in defiance of the interests of the NSW governments.

The reign of Admiral Sir Dudley de Chair

Sir Dudley de Chair was a mentally destabilised former naval officer who believed that under Labor ‘foreign elements were behind the movement to recall [him] the Governor, and wreck the Constitution, and to establish a Communist Government’.⁴ Lang requested him to appoint 25 new Legislative Councillors, but the Admiral would appoint only fifteen. Leo Amery, Secretary of State for the Dominions, was consulted by both parties, but he replied that the matter was not one in which he could give instructions. But Amery also sent a private telegram to the Admiral saying that the issue was not ‘strong enough to warrant the rejection of the advice of his Ministers’ and the Admiral prudently and quickly made the appointments.⁵ Some of the Labor Councillors deserted to the Nationalists and the Premier requested more appointees. Sir Dudley firmly refused and this time Amery secretly supported the Governor’s stand. He cabled saying that if the new members were being appointed for the purpose of abolishing the Legislative Council and if the Admiral’s refusal should ‘result in any protest or demand for your recall, you can be assured of my support’.⁶ The NSW Labor government was contending not only with an unsympathetic Governor, but with the British government as well.

The reign of Air Vice-Marshal Sir Philip Game

By the time of the election of Lang’s second government in October 1930, Air Vice-Marshal, Sir Philip Game, a retired British Air Force officer was Governor. Game was disoriented over the social and economic values of NSW. He viewed the local citizens as suffering from ‘want of moral fibre’ which he blamed on government action in taking away ‘the responsibilities which should rest on the individual. Child endowment –– free education up to the University –– free hospitals –– free institutions for troublesome children, in fact State aid from birth to death’.⁷ Game’s anti-Labor views were encouraged by his fellow military friend and Governor of South Australia (later to be Governor-General), General Sir Alexander Hore-Ruthven. He told Game that he was ‘up against a cunning and unprincipled scoundrel’ in Premier Lang whom the General collectively linked with Scullin and Theodore as representing ‘scum’, needing to be brushed out of the way.⁸

Game did not perceive himself to be responsible to the NSW government, but responsible upwards to the Dominions Office, its Secretary of State, and ultimately to His Majesty the King. Below him was the Premier and the NSW citizens who expressed their loyalty to the King through him. Game reminded Lang that he derived his authority as Premier from the King, but this authority was transmitted through himself as Governor. Game was close to Lord Trenchard who had established the Royal Air Force, and thereby indirectly to the royal family. Officiating as the King’s representative in NSW was for Game much more than a purely symbolic function. Game’s lifestyle in Government House reinforced his notion of being superior to NSW governments and Premiers. He was surrounded by a large retinue of domestic and official staff employed by the NSW government and he enjoyed his government salary of £5,000 to which he added his half pay as Air Vice-Marshal.⁹ He was faced with few personal expenses.

At the top of the new Labor government’s electoral mandate in 1930 again was the abolition of the Legislative Council and Premier Lang immediately asked Game to appoint the required number of Councillors. This was despite the Nationalists having amended the Constitution Act in 1929 making not only the abolition unlawful without holding a referendum but also preventing this requirement from being repealed without another referendum. Lang told Game that he would surmount this artifice by simply repealing Bavin’s Act and he provided Game with opinion from the government’s law officers legally validating the government’s plans. This advice stated that British parliamentary tradition prevented a government binding a future government, and the NSW Constitution could simply be amended to remove previous amendments providing for referendums.¹⁰ Game told Lang that ‘I accepted the view that the people desired the abolition of the Council’, but he refused more nominees until the measure had been rejected by the Council. Lang correctly foresaw the Council delaying by inaction and he warned Game that if he ‘could not bring himself to accept his advice, constitutionally rendered, a crisis must necessarily take place’. Confident that political justice would be on his side, Lang permitted Game to consult the Chief Justice, Sir Philip Street, and the President of the Legislative Council, Sir John Peden, to ascertain their views. Not surprisingly, no record exists of their advice to His Excellency.¹¹ Game then resorted to delaying tactics by disputing with the Premier the number of nominees sought by the government.¹² There was confusion over the exact figures with Game refusing the Premier’s demand on 2 December.¹³

In the face of this refusal, Lang brought on the bills for the Council’s dissolution. But to the amazement of all, the Legislative Council quickly passed the legislation to procure the Council’s abolition. The reason for this apparent self-destruction was obvious. If they defeated the bill, the Governor would have to honour his promise to add more members. Hoping to frustrate the Councillors’ plot, the government sought to have this abolition act assented to immediately and asked London (via the Governor) on 10 December to approve Game giving immediate assent on the grounds that it was of ‘local character’. Game himself refused to give local assent and he cabled them for approval to London.¹⁴

The clever strategy of the Nationalist Councillors was revealed the next day, 11 December. They applied for an injunction to the courts to restrain the President of the Council or Ministers from submitting the bills to the Governor for assent and on this being granted the matter went to the full Supreme Court on 15 December by which a judgment was sought declaring that a referendum was necessary before Council could be abolished. The NSW government engaged Dr H.V. Evatt to argue the contrary. He said that ‘You cannot have Parliamentary sovereignty which can define and limit itself. One Parliament cannot substantially shackle or interfere with the discretion of a subsequent Parliament’.¹⁵ But the judges ignored Evatt’s argument and on 23 December announced by a majority of four to one that Bavin’s constitutional amendment could not be amended. NSW appealed to the High Court where on 16 March 1931, by a narrow majority of three to two, its appeal was dismissed.¹⁶ NSW then took the appeal to the judicial committee of the Privy Council. Dominions Office officials told British Attorney-General, who wished to appear as amicus curiae (friend of the court), that they wanted him to oppose the position of the NSW’s Labor government.¹⁷ The Privy Council’s decision was not handed down until 31 May 1932 after the Lang government had been displaced by Game on 13 May.¹⁸ Meanwhile the Legislative Council continued to obstruct the government’s legislation which Lang tried to counter by continuing to press Game for the appointment of more Labor nominees.

Early in 1931, Game decided to dismiss the NSW government and informed the Premier. Game consulted Hore-Ruthven in Adelaide who in turn consulted Sir George Murray, the South Australian Chief Justice as well as Lieutenant Governor, Keith Murdoch, the newspaper proprietor, and L. Duncan, of the Adelaide Advertiser. The General reported that the consensus of opinion in Adelaide was that if Lang refused to modify his policy in any way and ‘was dragging the good name of N.S.W. in the mud against the wishes of the majority of people, then no other alternative exists to save the situation then –– but not until then, you would be justified in sending for Bavin to form a government, of course having first ascertained that Bavin was prepared to do so’.¹⁹ Game decided not to continue with the planned sacking and wrote an apology to the Premier saying that after he was in a position to think quietly about the request he decided he ‘should be entirely wrong if I were to ask you to surrender your Commission’.²⁰

The not unexpected refusal of the Council to pass the Interest Reduction bill on 26 March had the Premier again unsuccessfully asking for more nominees. It became characteristic of Game to report to London that the policies of the Labor government were driven by ulterior motives and that chaos and confusion would reign if Labor got its way. For the second time, Game began actively considering dismissing the Lang government. He cabled London that ‘It has been suggested to me on constitutional grounds I ought to consider whether I am right in retaining as my ministers a cabinet which has openly repudiated public debts’, and ‘If I am to do so on moral grounds of repudiation, it must obviously be done at once. Feeling among Labour [sic] opponents is strong’, he added, ‘and a petition is being prepared to ask me to exercise such constitutional powers as are vested in me’.²¹ He looked to London for support.²² London responded with a letter from the Minister, J.H. Thomas, saying that the matter had been discussed with the Prime Minister, and that ‘we should like to assure you of our warm personal sympathy’.²³ It would have been evident to the Dominions Office by then how single-minded was the Air Vice-Marshal in seeking to dismiss the government (seemingly twice that year) when it adopted a policy he disliked.

Sir Philip’s perception of ‘widespread dissatisfaction with the Government’s record and its proposals’ deterred him granting more Councillors. He believed that the projected measures did not ‘represent the wishes of the majority of the people’. To deter such political recklessness, Sir Philip again recommended that Lang’s government should be made to face another election despite its having been elected nearly six months previously.²⁴

Willis to London in defence of NSW

It was clear to the NSW government that Game’s opposition to its policies had to be countered by an appeal to his political masters in London. The government sent its leader in the Legislative Council, A.C. Willis, to occupy the vacant position of NSW Agent General in London even though leadership of the Legislative Council would be difficult to fill. At that time, however, it was more important to have the NSW government capably represented in London as a means for countering the biased reports of Sir Philip and the distorted news about NSW published in London’s newspapers. Willis arrived in London on 14 May 1931 and visited the Secretary of State for Dominions, Jimmy Thomas, early in June to present NSW’s case and then met with Sir Edward J. Harding, the Under Secretary, and H. Grattan Bushe, Legal Adviser, to the Dominions Office on 23 June 1931. Willis directed discussion to the appointment of additional Councillors, but the officials concentrated attention on the abolition of the Council which, being sub judice, Willis could assure them was not an issue. The Governor should ‘concede to his Premier the number of appointments necessary to give effect to legislation’, he said. Aware of the British Minister’s refusal to give ‘formal instructions’ to the Governor, Willis suggested that the Dominions Office should propose an indirect course of action to Game whereby the Governor ‘could intimate to Mr Lang that an approach’ on his part for the appointment for more members ‘would have a favourable reception’. Harding sent a report of these discussions to Game on 7 July.²⁵ It was a clever presentation by Willis, clearly demonstrating the demands of the NSW government. It was unfortunate for the NSW government that it produced such a negative response from the British officials.

Meanwhile in Sydney, Lang had returned with flying colours from the second Premiers’ Conference in Melbourne in June. Elements of his Lang Plan involving large interest reductions and the conversion of loans to lower rates, ridiculed at the previous February Conference as repudiation, were adopted in May and implemented as orthodox policies. There was even some jovial tolerance at this Conference for his shifting NSW’s responsibility for London loan interest payments to the Commonwealth.²⁶

By the middle of 1931, Sir Philip became more entrenched in his opposition to the government’s policies and determined that the Legislative Council should remain the bulwark against its enactments. Game sent reports to London painting alarming scenarios of a possible Labor-dominated unicameral parliament bent on introducing radical legislation. He based his startling propositions on the unlikely assumption of the Privy Council judgment actually favouring Labor’s abolition of the Council.²⁷ In another letter he had an imaginary Labor government, now in a single-chamber Parliament, introducing a bill to prolong the life of Parliament indefinitely. ‘I realise the difficulty … has not yet arisen’, he wrote, but I should be grateful for guidance on how a Governor could ‘warrant an appeal to the Electors before it becomes law’.²⁸ In painting this exaggerated scenario, Sir Phillip did his best to convince his London masters of the political extremism he believed he faced in NSW. It can be conjectured that he had intentions of dismissing the government and was preparing the Dominions Office for this possibility.

Game denied the continuing requests from the government for more Councillors after each of its bills was defeated in the Council. For example, when the Emergency Taxation Bill, designed to raise £16 million to offset the deficit and provide aid for the unemployed, was predictably defeated, the Premier asked for more Councillors. Lang angrily informed Sir Philip that the electorate and the Labor Party’s exercise of authority was being ‘reduced to a nullity’, and the administration of Government, directed at the solicitude and ‘welfare of the State’, was ‘rendered abortive’ by Game’s tactics.²⁹ A resolution was passed in July by the Legislative Assembly declaring that the Governor was obliged to accept the advice of his ministers. On 8 July all the cabinet ministers met the Governor in the Executive Council. There the ministers signed a minute recommending the appointment of additional Councillors, but Sir Philip refused to sign it.³⁰ Game was not only becoming more intolerant towards Labor but contemptuous of its members as well.

About this time, Sir Philip expressed in writing his model for governing NSW. It followed the British pattern of a sovereign and upper and lower houses of parliament. Game claimed to represent the monarch, but unlike the King, Sir Philip saw no necessity to follow the advice of his ministers. Nor would he permit this model to be modified akin to Queensland’s unicameral parliament. The nub of Sir Philip’s design was as follows:

I hold that Government consists of myself, as Representative of His Majesty the King, and 2 Houses, that New South Wales adopted this form of Government 75 years ago and has adhered to it, and that I require strongest possible grounds for what amounts to eliminating one of the trio making use of Royal prerogative … To swamp the Council would place Government in position of being able to pass any legislation, however extreme, and, apart from all other considerations, I feel that there are very strong reasons in best interests of country against doing this … I would gladly accept his [the Premier’s] advice if I felt entitled to do so, but must make it quite clear that I am totally unable to reconcile acceptance [of his advice] with duties of my position.³¹

NSW appeals to London

To circumvent Game’s stalling tactics, the NSW government approached his masters in London on 6 July asking them to instruct him to conform to the government’s policies. NSW also asserted that just as ‘the advice of Ministry is always accepted by the King’ so was the King’s representative in Sydney obliged do the same. It concluded with the remark that ‘It would be an intolerable position if … an individual unacquainted with the State and responsible neither to the Imperial nor local Parliament’ were to have ‘an independent discretion’ in NSW government affairs.³²

The Dominions Office responded by preparing a statement under Thomas’ signature for cabling to Game. It informed him of the Labor government’s representations and suggested that a compromise on the number of appointees be arranged by Game with the Premier. Most unusually, Sir Edward Harding then telephoned the message to Game at 6 am London time. Game seemed unrepentant. He replied to Harding that there was a very strong public feeling in his favour wherever he went –– although admittedly from those opposing Lang. The government, he added, might be voted out if an election was held. On the Council numbers, he said that even if Lang accepted them it was doubtful that he would adhere to the arrangement.³³ It appeared that Game felt in an invulnerable position and would be prepared to tough it out, knowing that the Dominions Office would support him.

British ministerial intervention

The British officials in the Dominions Office and the Attorney-General’s Office in London seemed unable to understand the situation where the largest state of Australia, that had been settled for 150 years and had a population of 2.5 million, was insisting on official British assistance to make the Governor accountable to its recently elected government. These British officials took a reactionary stand by arguing that the Governor was not accountable to his state government, that he could act unilaterally and that he would not be recalled by British officials just to suit the wishes of the state government. Lang was outraged at this decision.

Cooler heads prevailed in other parts of the British government, however. Jimmy Thomas seemed aware that an alternative course was required if NSW was to be rescued from an increasingly absurd situation and Willis seems to have helped Thomas arrive at that assessment.³⁴ There was an understanding between the two men that the ‘no directive’ principle applied in Game’s situation, that is that he could not be directed to give in to Lang. In a discussion between them at Thomas’ retreat house at Hove in the middle of an impending split in the Labour government, to occur on 24 August 1931, it was agreed that Game would have to be pressured to give ground if the ‘no directive’ principle was to be followed. An alarmed Game seemed to know what was afoot and cabled Thomas on 24 August urging no change in the Council’s numbers. Game said he had offered Lang a smaller number of 21 Councillors but it was not accepted by the Premier. ‘The feeling of the country’ was no longer with Lang, continued Game, and he was ‘persuaded not to expand’ the offer of more Councillors. But then seeing more clearly the writing on the wall, Game concluded with the unexpected offer that he was ‘quite ready to make way if necessary’ for another person prepared to accept the Premier’s advice.³⁵ Thomas’ reply was carefully crafted; he made a ‘suggestion’ to Game about more appointments while denying that the ‘suggestion’ had any official connotation to it.³⁶ Game had no alternative but to back down in response to his Minister’s veiled suggestion.

In early October, Game responded to Thomas’ indirect pressures by abandoning his anti-Labor policies. He now judged the Labor Party to have wide support. Lang was praised for introducing the interest reductions to the Premiers’ Conference and for ‘postponing the repudiation of overseas interest’.
While the ALP had lost support in the rural areas, he wrote, it still retained firm support in the industrial areas and that Lang was ‘undoubtedly the outstanding political figure in the State and possibly in the Commonwealth’.³⁷ Game’s startling transformation from opponent to supporter of the Labor government was eclipsed by his announcing on 20 November that he had agreed to appointing 25 additional Councillors. Game claimed that the number exceeded by merely four his earlier offer of 21. Three other reasons for the increase, said Game, were that the government still maintained electoral popularity; that more Labor Councillors might reduce the harmful anti-Labor propagandists; and that the Nationalists were acting in their own financial interests. The possibility of the Privy Council not announcing its judgment until April 1932 also influenced him. It was better to make the increase now than to delay when ‘factiousness [sic] of Opposition by the Legislative Council’ might insist on him appointing more than the 25 and give the government a permanent majority.³⁸ The archives are silent on how Game learned of the policy shift in the Dominions Office as they are on the relationship between Thomas and Willis who enjoyed the common ground of leadership in trade unions –– one from British railway workers and the other from the Australian coal miners. But Game’s reversal of hostility to Labor was only superficial and his dislike erupted six months later by his dismissal of the government.

At this time Thomas Bavin resigned from leadership of the UAP and leader of the opposition because of illness. He was consoled by his close friend, Governor Game, writing to say ‘what a knock-out it is to me to realise that we shall not again be working together, when this nightmare is a thing of the past. I have always looked forward to that’.³⁹ His Excellency, even then, was plotting to be rid of the NSW Labor government and end his ‘nightmare’.

The Bridge opening

The NSW government had decided that their Premier would open the Sydney Harbour Bridge on 19 March rather than Sir Philip as the King’s representative. Game was to play the secondary role of unveiling a tablet associated with the Bridge’s construction and then hand Lang the scissors to cut the official ribbon opening the Bridge. Game desperately tried to have the Dominions Office endow him with the authority to open it in place of the Premier. Game told London that NSW was politically divided and that the opening should be conducted by a neutral figure, such as himself. Game reported that one of the threats to stability was the right wing private army known as the New Guard consisting of 30,000 members bent on being rid of the Lang government.⁴⁰

King George initially supported Game’s suggestion that the Governor open the Bridge, but he soon changed his mind.⁴¹ This did not deter Game who kept pressing the Dominions Office to intercede on his behalf. This annoyed the Dominions Office and caused Sir Edward Harding to minute Game’s cable as follows:

I am sorry that Sir P. Game has ‘gone back’. I think it would have been better to leave well alone––more especially as there was no formal request to H.M. for approval of details of ceremony.⁴²

The outcome was that a dispirited Game had to play second fiddle to the Premier he detested. The ceremony was disrupted, however, by the New Guard’s officer, Francis de Groot, protesting at Lang rather than Game opening the Bridge. It was highly unlikely that Game was involved in the planning of this disruption, but he would have wryly noted that had he presided, expressions of anti-government animosity would not have occurred.

Game’s final coup

Under the terms of the Australian Loan Council legislation, the Commonwealth government took responsibility for the repayment of all previous loans, but it demanded that the states continue to pay the Commonwealth the interest on their previous loans even though the states’ revenues had fallen drastically while the Commonwealth’s had gained through its collection of tax on petrol sales. NSW’s revenue had declined to such an extent that Lang asked the Commonwealth to assist in meeting interest payment falling due in February 1932. On 30 September 1931, Lang and the Scullin government had come to a settlement over NSW’s earlier refusal to pay the Commonwealth for outstanding interest, but the new Lyons UAP government refused to be as compliant. When the NSW Treasury was unable to find sufficient funds, the Commonwealth paid the interest and legislated to seize monies from the NSW government bank accounts or elsewhere such as from the Harbour Bridge tolls. Lang removed all funds from the banks and for a time operated government finances in cash through the NSW Treasury. Public servants paid revenue into the Treasury instead of the banks and the cash was paid out in wages or sustenance to the unemployed. After speaking to Lang and the Attorney-General, Game accepted that the actions were approved under the Audit Act.⁴³ Game reported events to the Dominions Office saying, correctly, on 23 April that it was a dispute between the two governments and did not require his involvement.⁴⁴ But at 5.00pm. on 13 May Game dismissed the government and appointed Bertie Stevens, the opposition leader, as Premier until general elections were held. What made Game change his mind in this regard is an open question. Was it his being out-manoeuvred by Willis in London? Was it the slight over the Bridge-opening affair? Was it an ex-military commander mistakenly believing that he had to do something – anything? Certainly it decided future NSW Labor governments that the Governor’s position would thereafter be filled by an Australian.

This paper demonstrates how imperialism did not sit easily with the British. London officials knew little about the Australian states and the retired military officers they appointed as Governors were often unfortunate choices. They received no training for their appointments and could not relate to reformist Labor governments. They were badly advised by those whom they consulted in the upper class Sydney circles who bore a particular enmity to Labor governments. Unable to overcome their prejudices towards Labor governments and unable to grasp the constitutional issues at hand, they resorted to the techniques used in solving personnel problems in their military careers –– they simply discharged the offending soldier from the service with a dishonourable certificate. Game was not called to account for his dismissal of the NSW government. A new government was elected and Game’s actions were barred from analysis or discussion in the new parliament. The NSW public media did not investigate the history or the ramifications of the affair and Game returned to London to be promoted to the position of commissioner of London’s Metropolitan Police.