That Scott Morrison’s secret assumption of various ministerial offices in 2020 and 2021 was a bad thing is matter of uncommonly unanimous agreement. It violated many of the precepts of our system of government, even if they were not the ones that are legally enforceable by virtue of being written down. While most of the powers he assumed were not acted upon, Morrison did scuttle a gas project off the coast of Newcastle against the wishes of Keith Pitt, whom the public and parliament understood to be the one and only Minister for Energy, and his colleagues in the Nationals. This Morrison was able to do without going through the appropriate channel of overruling Pitt in cabinet, making it distinctly the act of a President rather than a Prime Minister.
The more contentious question is the extent to which the Governor-General, David Hurley, erred not only in signing the instruments that conferred the ministerial offices upon Morrison, but in passively acquiescing to Morrison’s determination to keep the matter quiet even from the affected ministers. In a statement issued on Wednesday, Hurley said he had “no reason to believe that appointments would not be communicated”. A common sense response would seem to be that this might have made sense when Morrison was appointment to the health and finance portfolios in March 2020, but not when he further assumed industry, science, energy and resources in April 2021 and home affairs and Treasury a month after.
However, Anne Twomey, professor of constitutional law at the University of Sydney, stressed in the Financial Review that the publication of ministerial appointments is a convention rather than a legal requirement, however unfortunate a state of affairs that may be. The Australian quoted another academic authority on constitutional law, Greg Craven, offering the orthodox view that Hurley was “bound by constitutional convention” to follow the advice of the Prime Minister, with whom the responsibility lies entirely.
Anthony Albanese would seem to concur, although it might be thought he is doing so with a view to keeping the heat concentrated on the Coalition. For what it’s worth, it seems clear to me that Gough Whitlam would agree if he were alive today, given his vehemence about the Governor-General’s duty to act exclusively on the advice of the Prime Minister. A former Prime Minister with a contrary view is Malcolm Turnbull, who said he was “astonished that the Governor-General was party to it”.
Writing in The Guardian, Jenny Hocking, emeritus professor at Monash University and author of multiple books on Gough Whitlam and his dismissal, describes Hurley’s actions and inactions as “troubling” and says he “must now consider his position”. Hocking draws attention to the following passage from the parliamentary handbook:
The approval of the Governor-General to the composition of the Ministry, the creation of departments, the allocation of portfolios and any ministerial and departmental change is notified publicly and announced in the House. The principal areas of departmental responsibility and enactments administered by the respective Ministers are notified publicly by order of the Governor-General.
The first of these sentences unhelpfully lacks a direct subject, but Hurley is evidently of the view that it falls to the government to follow through here. A footnote clarifies that the second sentence refers to the Administrative Arrangements Order, which lays out in general terms which ministers have which powers derived from various acts of parliament. A more transparently minded Prime Minister might have availed himself of the powers he desired through a change to this instrument, but Morrison’s adoption of already established ministerial powers left it undisturbed. In any case, Hocking indicates that Hurley would have been correct not to have made a public announcement if directly advised to that effect by the Prime Minister, and says he “should now make this clear”.