None of the criticism directed at Governor-General David Hurley in relation to Scott Morrison’s multiple ministries is warranted. He did exactly what he should do: follow the advice of his prime minister.
There’s no mention in the constitution of “prime minister”, famously, but plenty of mentions of the Federal Executive Council, which advises the governor-general “in the government of the Commonwealth”. Hurley would have appointed Morrison to his many and varied ministerial roles on the advice of that council.
So how come hardly anyone knew about it, including ministers? After all, the council consists of all ministers of state. But in practice, as few as two ministers can form a quorum, according to its handbook. During the pandemic, only one actually needed to be present — the other could participate by teleconference.
That means Morrison and Christian Porter, who allegedly advised Morrison on his scheme to become secret joint minister to seemingly half his cabinet, could have conducted the council meeting with Hurley easily. No one else needed to know — and nor did they, evidently.
There were some others who did know: each item at a council meeting seeking action by the governor-general requires a minute, an explanatory memorandum and the relevant instrument. These are all prepared by the council secretariat in Prime Minister and Cabinet, a place well known to any public servant who has ever undertaken a statutory appointment process. The minute would have contained the legal advice that the prime minister could also have another portfolio — something the constitution certainly doesn’t prohibit.
Afforded the appropriate minute and instrument, and legal advice that it was fine, Hurley had no choice but to act on the advice of the prime minister via Executive Council.
What he certainly shouldn’t have done was question the advice he received, or seek alternative advice. Those criticising Hurley for failing to somehow reject Morrison’s scheme are creating a very dangerous precedent — or more correctly reviving one from John Kerr’s time. It is not for an unelected governor-general to claim they know better than the elected prime minister, and if people think Hurley should have resisted Morrison, what would they think of a governor-general rejecting the advice of a Labor prime minister?
The only other alternative open to Hurley, if he believed he was being asked to do something unconstitutional or illegal, would be to resign immediately. Clearly he didn’t feel that way, evidently satisfied by the advice he’d received from Prime Minister and Cabinet.
Where the tale gets murkier is that Morrison didn’t publish the outcomes of these particular council meetings as normal. But as Hurley pointed out, that’s a matter for Morrison, not him.
That goes for the whole saga: it was never Hurley’s role to derail or disrupt what Morrison wanted to do. It should never be the role of the governor-general to foil the plans of the prime minister. That’s for Parliament and the voters, not an unelected symbol of a foreign monarch.
In the Westminster system, traditionally, the Sovereign or her Governor general has three roles. To advise. To be advised. To warn. One wonders where the Governor General was if he did not warn Morrison when it became apparent that the revised Ministerial arrangements had not been published and had not been advised to Parliament.
On that second point, Morrison should stand condemned. He misled parliament by omission for two years, by not tabling the revised Ministerial arrangements.
Well said Bernard Keane. It is indeed odd how often some wish for the GG to be an alternative centre of power in the land or a referee over the government. Be careful what you wish for.
One of the benefits of the current position is that there is no way Morrison can offload onto the GG any responsibility for what happened. If the GG was allowed or even expected to second-guess the PM then of course Morrison would be saying his actions must have been ok because the GG did not object. The reality is that the GG had no option once advised and all the responsibility for it lies with Morrison alone.
Why the hell have him there then if it’s just to sign off on anything and everything.Is there any limit as to what passes ok if requested by the PM and government of the day.What a very expensive rubber stamp.
Hear, hear – why indeed?
This isn’t hard, really. The GG follows the constitution. The GG did what Morrison asked because it was constitutional, no matter how weird it was in practice.
Where in the Constitution is any mention of a Prime Minister. The Government is mentioned but not the PM.
Your point is?
Covered off in the article.
The GG has ethical and legal obligations to every single Australian. He hasn’t fulfilled his ethical obligations to us.
On what basis do you assert that, or is it just your hope? I’d rather the GG did his job under the constitution, as he did, rather than go all righteous and start assuming he can do things that are none of his business, or refuse to do things that are his business.
Again what’s the point of him being there if it’s just to adhere to to the constitution no matter what.Couldn’t a constitutional lawyer just advise to that for a fee.
He’s not a constitutional lawyer. He does his job. He does not interpret the constitution, he gets his advice and follows it, as he did here. Interpreting the constitution is a task for which he is no way qualified, outside his competence and remit, and ultimately belongs to the High Court.
The point of the GG is to do the job required by the constitution. It is bizarre to criticise the GG for doing what he is required to do.
Can we just replace him with a ten year old then. He only does as he is told.
You could, or you could just make the actions of the executive council take effect immediately rather than being enacted by the GG. Though you might want to consider making sure that the council’s rules provide for more transparency and constraint than appears to be the case (a quorum of two from a council of 30 or so seems a bit of a stretch).
The point of the article is that he /should be/ a rubber stamp – the last time he wasn’t was in 1975, and I don’t think /anyone/ wants to build on /that/ particular example.
He must have known that Morrison was secretly serving multiple portfolios as a co-minister allowing the possibility of democratic conventions being overturned. If Morrison was honest about all this, it would have been on the news and he would have heard it.
It seems the GG was legally bound to swear him in but I have heard nothing to say he was legally bound to keep the secret. He must have known the govt members, Parliament and citizenry would want to know that this was going on so, as far as I am concerned, he was ethically bound to reveal it.
This is just wrong. Stop wishcasting and learn how our constitution works.
I see it this way. I might have timeline for who knew what when slightly wrong but it’s not consequential.
The PM, one Minister, the GG and the PM’s go to journalist knew about these arrangements.
Later two more Ministers found out when the PM used his secret powers to override a decision (he didn’t like) that was about to be legally made by the relevant Minister. The override violated vital democratic conventions.
Neither the Parliament nor the citizenry had any idea that these secret co-ministerial appointments were happening yet the GG continued to make them.
The citizenry, the Parliament and members of the government found out about the democratic convention busting activities when the go to journalist and a mate monetized the secret through their book.
I would much prefer a constitutional crisis based on honesty and respect for the citizenry and the Parliament to uncover this undemocratic behaviour than taking a chance on a couple of blokes writing a book sharing their secret.
Do as the Queen would do! Advise the PM that in the GG’s opinion what he was doing was unusual and potentially unacceptable
Instead of being a blank check?
When I was a kid I always thought my dad and grandpa were talking about the horses. The GG. When I got older I asked why the GG was such a problem? I was further confused by the answer. “Girls shouldn’t concern themselves with such conversations, go away”.
I loved horses. Why couldn’t I listen?
Why would a GG making great strides in the wrong direction need to be put out to pasture? Why couldn’t he be taught to run in the right direction?
1970s Australia.
The really scary part of this is the fact that Australia was effectively able to be governed by Morrison and Porter without any pulic knowledge of their actions.
It’s probably a relief that Morrision didn’t take the opportunity to have himself apponted as Governor General as well!
It’s like they’ve accomplished the perfect heist.
ah … so ScoMo’s buddy, alleged-rapist Christian Porter allegedly helped him out with his money grab (he obviously wasn’t interested in the power) – interesting
The money! I would never have picked that!
Porter got his pay back . Not a word from Morrison when he accepted Porter’ s version of his blind trust.
The role of the governor is to act as a governor in the sense of a regulator to see that things are played according to Hoyle. The prime minister is the first among ministers, not a dictator, not even a president. If the prime minister is playing ducks and drakes with the cabinet system the governor should refuse to take part and should the prime minister continue with such a fat-headed scheme the governor should take action or resign.