‘Inappropriate’ for governor-general to front Morrison ministry inquiry

The secret ministry drama is reminding Australians how much the functions of our system of government are based on nebulous conventions rather than written-down rules.

Constitutional conventions mean we may never know what, if any, questions or assurances Governor-General David Hurley sought from Scott Morrison when he received paperwork to appoint the then-prime minister to administer five departments other than his own.

Prime Minister Scott Morrison and Governor-General David Hurley in an executive council meeting.Credit: Nick Moir

The solicitor-general’s advice to Prime Minister Anthony Albanese this week found Morrison’s move was, strictly speaking, legal but had “fundamentally undermined” the principle of responsible government.

The problem is, as House of Representatives Practice notes, “responsible government” is not something codified in the constitution.

It is generally agreed by constitutional and legal experts that Hurley did nothing wrong. Governors-general are supposed to accept the advice of the government of the day, and it would have been even more extraordinary if Hurley had rejected a request to appoint someone already sworn in as a minister to administer a department.

The solicitor-general’s legal advice also made this clear, saying it would have been “a clear breach … for the governor-general to decline to accept and act upon the prime minister’s advice” whether or not he knew it would be kept secret.

Constitutional law expert and former Australian Catholic University vice-chancellor Greg Craven says the current situation is the opposite of the 1975 constitutional crisis and dismissal of Gough Whitlam’s government. In that case, then governor-general John Kerr refused to accept the advice of his prime minister.

“There is no evidence that the governor-general [Hurley] did anything wrong, and I think people trying to implicate the governor-general, you could argue that in doing that, to some extent disingenuously, that is inconsistent with the notion of responsible government,” Craven said.

Nevertheless, questions persist over whether Hurley could have or should have known the appointments were kept secret.

A spokesperson for Hurley has said it is not the governor-general’s responsibility to tell the broader ministry, parliament or the public about administrative changes and that he “had no reason to believe that appointments would not be communicated”.

Cabinet is yet to settle the shape of the independent investigation into the matter but Albanese has indicated it is unlikely the governor-general would have to give evidence.

University of Sydney professor Anne Twomey says it would be inappropriate to examine confidential conversations between a prime minister and governor-general.

“There’s certainly a convention of not getting the governor-general involved in these sorts of things,” she said.

“Normally, it would be accepted that it would be inappropriate to inquire into those sorts of conversations … in order to maintain that level of confidence between the vice-regal person and their responsible ministers, so it would be quite surprising if any inquiry went that far.”

However, she said it could be that the inquiry examines administrative issues and procedures, such as how and when documents were sent to the Office of the Official Secretary to the Governor-General.

Craven said it was a “matter of constitutional courtesy” that you would not have an inquiry seeking to compel the head of state to appear.

“As a matter, I think, of responsible government, those conventions extend to not running inquiries into the actions of a head of state,” he said.

Twomey said people should also keep in mind that we are now looking at what happened with the benefit of hindsight.

“I know everybody’s happy looking in retrospect and saying, ‘Oh, well, it should have been obvious [that it wasn’t made public]’. But given that you’re in the middle of a pandemic, and everybody’s minds are directed elsewhere, it would be surprising for the governor-general to be sitting there trying to work out whether some document that he signed a few months ago had ever sort of reached public consciousness through the media or not,” she said.

“You wouldn’t expect the bizarre thing to happen. If I were the governor-general, it would just never have occurred to me that the prime minister was being sworn into ministries, without telling the relevant minister or the relevant public service departments.”

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