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”.
Mavis @ #48 Friday, August 19th, 2022 – 3:37 pm
I think Hurley needs to attend his own Leadership program.
Ronni Salt in a long excoriation of Morrison, doesn’t miss the GG….
The other touchy aspect in this scandal is the detached compliance of our Governor General who appeared to be not too bothered about the repeated “swearing in” of his acquaintance Scott Morrison into numerous ministerial positions over a 14-month period without another minister present and with none of this being made public; until the excrement hit the fan this week, and then suddenly he found himself very much bothered indeed.
According to his media statements, the GG appears to have been both present, but yet, not at all involved. Oh yes he signed things, but that was, he says on the advice of “the government”, until we discovered that Scott Morrison was the only person party to these one-sheet-of-paper-instruments of self-appointed power grabbing. The Governor General appears to have forgotten the Prime Minister alone is not “the government” – only in Scott Morrison’s head does this fantasy exist.
Australia’s democracy has been so successful because it has relied on the good will of the custodians of the system that they will act accordingly. They didn’t. Democracy is a fragile beast. All sides have to respect it for it to work. If that trust is not respected, that’s where our systems break down. Beyond the notion that Scott Morrison was happy to go to an election and possibly another term of government while secretly holding shadow executive powers, lies very dangerous territory indeed.
https://theshot.net.au/general-news/mess-minister/
Player One:
Friday, August 19, 2022 at 4:56 pm
Mavis @ #48 Friday, August 19th, 2022 – 3:37 pm
Another point about Hurley is his personal lobbying of Morrison to fund a charity that’s close to his heart. Hurley should ask himself: were it not for the vice-regal office he holds, would $18m of public monies have been forthcoming? His representation was highly inappropriate, even if the instant charity is more deserving than Mother Teresa’s. That he doesn’t see it this way speaks volumes about his judgment.
https://www.abc.net.au/news/2022-04-08/governor-general-lobbied-scott-morrison-leadership-program/100975582
[‘I think Hurley needs to attend his own Leadership program.’]
I’ll pay that one, Player One. And at the time of Morrison’s most generous donation of public monies, the ‘Australian Future Leaders Foundation Ltd had no office, online website or staff.’ Further, due to his lobbying, such could give rise to at least an apprehended bias that Hurley was for the remainder of his term in Morrison’s pocket. That’s not to suggest that’s the actual case but it’s certainly one that a reasonable person might consider; therein lies the problem – one of perception.
I can just imagine the tattle at, for instance, the Melbourne Club: “He was borne on the wrong side of the tracks (Wollongong); we just knew he’d let us – the establishment – down. We won’t allow this to happen again. I mean to say, we gave Kerr a go, and look where that got us.”
[I do hope Hurley via his satellites views this site. It will not be indicative but given his advisors have let him down, he may consider a new circle of friends. Another view is that being a retired general, a former NSW governor, he takes no counsel?]
I actually know someone who knows the GG well from their times In the military
The description is that the GG plays with a very straight bat – and actually has a sense of humour
The sense of humour is masked by a poker face
The GG’s response to these matters has not surprised my contact
He also notes that no law has been broken – even if the events were not gazetted by the government of the day
And he is yet another who decries the standard of media noting that given the lack of actions by government over the last 10 years there are many issues more important than this matter
There is plenty of fodder for the media to feast on in regards the defeated government apart from this issue – and that other fodder is far more important to the future of the Nation
So it is not just me putting opinion on the shocking standards of media in Australia
We really need a more diversified media landscape
Noting that the Stokes, Murdoch and Costello media outlets are in full attack mode in Victoria – aided and abetted by the Police Union
Remembering the attack on the Court system and jury findings by Police and their Union when a Court decision was recently overturned on appeal
So they want a Police State and are supporting the Liberal Party for that reason
And who made reference to the conversations which are a feature at the Melbourne Club?
Never happens!!!
Once you walk back out onto Collins Street all is forgotten, but perhaps not!!!
I do applaud William for facilitating a dedicated thread on Hurley’s vice-regality, almost without exception, never litigious for that may expose the truth. A case on all four is Edward VII’s sexual predilections:
https://www.usatoday.com/story/life/books/2017/07/24/edward-vii-the-prince-of-wales-and-the-women-he-loved-catharine-arnold/103485050/
The independence of any officeholder depends on the security of tenure they have.
Effectively a Prime Minister can sack a Governor-General at will. The Crown in this day and age will not stand in the way.
The only caveat to the above is that a GG may dismiss a PM first. This only happens in rare circumstances.
Given the lack of a secure tenure for the Governor-General, we should not be surprised that a GG would acquiesce to a PMs unconventional requests.
Here we go again,
There are certainly many avenues to attack the previous Government and the media have been lacking in their vigilance, but this issue goes to the heart of our system of Government and I think all of the blame rests with Morrison and those in the Government who came up with this monstrous idea.
Good read William, thank you.
Question:
It’s now been made public that the GG signed instruments appointing Morrison to administrative control of various departments.
Do those instruments actually supersede any previous instruments signed by the GG appointing anyone else to administrative control of those department?? Like, the people who thought they were Ministers?? `
If they did, were ANY decisions made by the “previous” Ministers then invalid??
No wrongdoing on their part, but certainly on Morrison and maybe negligence on the GG’s part??
Be interested in opinions. 🙂
Alpo at 6.07 am, and Captain Moonlight at 9.59 am
Alpo says: “Time, opinion polls, and the result of future state elections will suggest to Dutton the path ahead”.
Surely, there is NO path ahead for Dutton. He is yesterday’s man (see Rowe, main thread 5.49 pm).
He lacks the intelligence and appeal beyond his home state of Kim Beazley, who won the TPP in 1998.
The only state elections scheduled in the next two years are in Vic and NSW (see dates below). Albo’s honeymoon glow will probably still resonate in November. As for March, Perrottet may be pleased if he makes it to the NSW election. The way things are going Kean may bounce him by December. Either way, the scandal around the GG’s secrecy won’t affect either election result. State issues will resonate.
On this matter, it’s no longer up to Dutton and the LNP. They may have a significant role on the Voice referendum, one way or the other, but on most issues they are politically irrelevant to a degree that they still don’t realise (expressed clearly in that Rowe cartoon Under the Pump for tomorrow’s AFR).
Dutton had his chance to oust ProMo last spring, but neither he nor his colleagues had the guts to do it. They are paying for their weakness now, and will continue to do so.
For Hurley, the question is simple. He knew what ProMo asked him to do was odd. Even Abbott has admitted that. Given his lack of background in the role’s legalities, what might Hurley have done?
He could have informally sought advice from his successor as NSW Governor, Margaret Beazley, a former President of the NSW Court of Appeal. There’s no excuse for him not seeking clarification.
As for the Putin/Medvedev analogy, it is misplaced. The last genuine Russian election was in late 1995 for the Duma (Parliament), 13 years before Putin’s dodgy double act with Medvedev, now wheeled out to say the most outrageous things to a foreign audience in the context of Putin’s war. The fact that ProMo kept his Scotties* escapade secret shows his weakness. Putin, a spy, keeps his powers public.
* For the Scotties see Rowe cartoon in AFR today, 19 Aug (on previous main thread, 18 Aug 5.09 pm).
Vic. 26 November 2022 (fixed)
NSW 25 March 2023 (fixed)
Here we go again:
Friday, August 19, 2022 at 7:33 pm
[‘I actually know someone who knows the GG well from their times In the military’]
You don’t get to the top without treading on your contemporaries. Hurley, from an early age, obviously knew he was disadvantaged, his raison d’être – arguably – I’ll get these bastards back until he, himself, became a bastard. I could be wrong but think I’m right.
People should spare a though for the Queen in all this. How must she be feeling, reading about this crap and thinking …….. “FFS! What is it GG’s in Australia don’t get??” You watch, next one will be a relative of hers from Ye Olde Country. 🙁
Anne Twomey points to Section 19E for the Acts Interpretation Act: “If a minister purports to exercise a power … that’s actually conferred on another power, then the exercise of that power is not invalid even though the wrong minister did it. So it’s fairly unlikely that you could invalidate these acts, but from a public policy point of view, from a transparency point of view, it’s clearly the wrong thing to do.”
https://www.abc.net.au/news/2022-08-15/morrison-moves-to-add-himself-to-ministerial-portfolios-bizarre/14019938
imacca:
Friday, August 19, 2022 at 8:17 pm
I’m not sure she’d be concerned. And who gives tinkers?
“So it’s fairly unlikely that you could invalidate these acts, ”
Ta William.
So it’s “fairly unlikely” it will lead to some sort of legal shit-storm……for which we should be eternally grateful to Scooty the Multiple Jobs Holder. 🙂
Actually……..maybe holding down multiple jobs at once was simply Morrison’s way of trying to prove he is a “lifter, not a leaner” and the GG thought that was a worthy cause to support? Makes as much sense as any of the rest of this?? 🙂
“Given the lack of a secure tenure for the Governor-General, we should not be surprised that a GG would acquiesce to a PMs unconventional requests.”
The assumption of complete lack of integrity, kinda bells the far right . MAGA cat.
Out of all of this, the GG’s powers need codification. I can’t envisage the Queen, her successors, ever sacking, via her local representative, the dismissal of a democratically elected government such as Whitlam’s, which was shocking at the time, and still is given that Hurley appears to be Kerr’s clone.
Pepys.
Generals are pretty precious about their honour; let’s see what Hurley does. He isn’t going to let his reputation be traduced by a brown pants wearing carnival barker.
Historyintime at 9.11 pm
Hurley can’t undo history, and the stain from the former PM has already traduced his reputation greatly.
Hindsight is a great teacher, but it does little to salvage tarnished reputations, even if one admits to error.
Well I think Hurley made the appointments appropriately. Then he became aware they were not made public (I doubt he was explicitly asked to keep them secret but don’t dismiss the possibility). Then he may or may not have raised the matter with Morrison. Probably…..not……. He thought about whether he had a duty to make the appointments public and decided not. He thought about the consequences of making them public (against standard practice that it was the PMs responsibility) and decided that it could be seen as an overreach. And so, he stayed quiet.
What happens now is protection of both personal reputation and the standing of the institution of the Governor General. So I expect a full accounting by Hurley of his conduct, in the form of a fairly flat timeline.
On a kind of related note, I see that Sir David Smith, the secretary to Sir John Kerr who read the proclamation dissolving parliament on November 11 immediately before Whitlam’s famous speech, died a couple of days ago. I believe he may have later had something to do with Australians for Constitutional Monarchy.
https://www.abc.net.au/news/2022-08-17/sir-david-smith-speech-whitlam-dismissal-dies/101342292
One could argue that the appointments were unconstitutional. Constitutionally, ministers are not nominated by the Prime Minister but by the government. Normally the Government (ie. the ruling party) gives the PM the authority to convey to the GG the comp0sition of the Ministery. Therefore, since Morrison did not consult his caucus, it could be argued that the extra Ministeries that Morrison gave himself were not appointed by the Government and thus are invalid.
This is important as Morrison made one decision during this period to deny gas exploration off the NSW coast. If the appointment of the extra Ministeries is unconstitutional then that decision is invalid and would have to be revisited by the present government.
William Bowe:
Friday, August 19, 2022 at 9:50 pm
[‘I believe he may have later had something to do with Australians for Constitutional Monarchy.’]
While the manner is that one should not speak ill of the dead, I’ll take exception in Smith’s case: he seemed to almost enjoy reading the proclamation nearly forty-seven years ago. Those who personally recall “The Dismissal” may comprehend how potentially dangerous the incumbent is. And so to the cot.
“A directly elected President would be held to account by the Australian people and not the Politicians”
Vote No to the “Politicians” Governor General
Doesnt look good for the Governor General
https://www.abc.net.au/news/2022-08-20/scott-morrison-appointments-not-found-governor-general-reports/101351660
A quick glance through the online Governor-General’s Program reveals plenty of public activities — from formal engagements to meetings and phone calls with government officials.
Ordinarily, when a minister is appointed to an office at a swearing-in ceremony, virtual or in person, this is also listed in his program.
But the appointment of Scott Morrison to five secret ministries is nowhere to be found.
Dr Ross Smith @ #71 Friday, August 19th, 2022 – 10:06 pm
Constitutionally, ministers are not nominated by the Prime Minister but by the government.
In his ongoing duplicity, Morrison said, when directly asked, that the “we” he repeatedly referred to during his press conference, was “the government”. Images of David Pope notating that as “Me the Government” come to mind.
I have been pondering, as I guess many of you have, the following question – if ScoMo was appointed to those extra portfolios with minimal publicity, how does he persuade anybody that a document signed by him in one of those capacities is valid? (“What’s this, ScoMo? You’ve knocked back our exploration licence? But you’re not the responsible Minister – Keith Pitt is!”) I now find that the answer was published 4 days ago in the Grauny – https://www.theguardian.com/australia-news/2022/aug/16/scott-morrison-accused-of-bias-in-blocking-pep11-gas-project-using-extraordinary-ministerial-powers
The reporters had read the court file in Asset Energy’s challenge to their knock-back and it seems that the PM got a letter from the Office of the Solicitor-General saying
“We advise that, on April 15 2021, the then prime minister, the Hon. Scott Morrison MP, was directed and appointed by the governor general pursuant to sections 64 and 65 of the constitution to administer the Department of Industry, Science Energy and Resources and was therefore, for the purposes of the Joint Authority’s decision of 26 March 2022, the ‘responsible Commonwealth minister’ for the Joint Authority.”
So the Sol-Gen has presumably already seen some sort of appointment document and seen nothing legally wrong with it (and it’s not in any way his job to say whether it’s stupid or politically embarrassing or a breach of the coalition agreement). So I expect he’ll confirm that on Monday.
And, guys, it didn’t override Pitt’s appointment – it just created 2 parallel Ministers and left it to them to sort out who did what – fun for all!
edit: deleted, wrong thread
Historyintime says:
Friday, August 19, 2022 at 9:11 pm
Generals are pretty precious about their honour; let’s see what Hurley does. He isn’t going to let his reputation be traduced by a brown pants wearing carnival barker.
中华人民共和国
Lie with dogs you catch the fleas.
Exactly what is the ultimate outcome of this debacle remains unknown. How long will Morrison stay in his present job? How much, if any, electoral damage will the federal Liberal party suffer in the polls, and in the next election? Will the governor general be replaced earlier than otherwise scheduled? Is there any implication of any of the state elections?
Finally, where is the ghost of Nostradamus when you need him? It’s still two months to Halloween and I do not have the patience to wait that long…
William Bowe @ Friday, August 19, 2022 at 8:23 pm
Thanks. I was looking for this answer as well a couple of days ago.
IIRC, Nostradamus was banned a little while back after making several ridiculously racist comments. Very understandable on William’s part, though it did sadly mean we missed out on his insightful commentary on the night of May 21.
I have long been critical of how Presidential our election campaigns have become.
It seems Morrison got caught up in that perception and when he discovered the reality, instead of accepting it, he decided to change it.
Interesting question here is, i think, was the GG advised by the Govt of the Day that he should keep quiet about these appointments? What was the advice of the Govt of the Day that the GG is supposed to act on ??
I think it will come down to Hurley at best being considered negligent in this matter, and that should influence protocols for how Govt and GG interact in the future. Morrison taking over Health…..maybe Covid gives him cover for that …….but not the other portfolios. that’s pure politics / power grab.
While i can see the GG being, maybe, properly persuaded on the first secret appointment on a for the good of the country basis the others should have raised a big red flag.
I think Hurley should in a little while quietly move on and spend more time with the family. That gets himself and the office of GG out of the way of the shit-splash from the crap that will continue to be heaped on Morrison until he leaves Parliament or is turfed.
Next GG makes a speech sometime as to the values around transparency and respect for parliamentary conventions..Albo gets interviewed and simply agrees with that position…….all over but never to be actually forgotten.
Me wondering if incoming FICAC may HAVE to touch on these matters if it comes out Morrison as Minister for (insert Dept here) was making dodgy approval or grant decisions. Maybe nothing illegal but improper? Already moves for more traditional and not illegal “pork barreling” to be considered as possible corruption??
Whether Hurley was right or wrong, the fact that media and politicians are speculating about whether he did the right thing means his position is surely untenable. Whilst not an actual requirements, surely the GG in reality needs the confidence of every single member of parliament.
“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
The confidence of every parliamentarian is too higher standard. Too open to grandstanding and/or abuse (particularly from the right).
The Governor-General has to avoid partisanship and likely maintain the confidence of the House of Reps in themself (i.e. if, after the Dismissal, Whitlam had included the Governor-General in the motion of no confidence and had the Speaker ring the Palace (instead of trying in vain to inform the Governor-General) to inform the Queen about the motion of no confidence, this may well have resulted in Kerr being sacked before he could dissolve Parliament and thus the Dismissal being reversed).
From James Massola
Is the GGs get out on the Diaries that these were not in-person events? I’m pretty sure Morrison said they were done in writing.
So I’m reading
https://www.pmc.gov.au/sites/default/files/publications/guidance-caretaker-conventions-2021.pdf
at Section 3.
How could the Secret Prime Minister for Everything have impacted the caretaker conventions in the lead-up to the May election?
(I hope the relevance of this question to this thread is apparent)
imacca: “Already moves for more traditional and not illegal “pork barreling” to be considered as possible corruption??” Yes, but this was a new kind of (almost anti) pork barrelling – knocking back some expenditure that the Party’s corporate mates wanted to engage in, to try (unsuccessfuly, ha ha!) to keep the voters happy. Hard to call that corruption. Problem is – it may have been, technically, misgovernment. That is it may not have been a valid decision by the criteria under the Act, which seems to be aimed at getting as much gas out of the ground as possible as soon as economically feasible, but that means it’s the Act that could be described as corrupt.
Mr Morrison was secretly appointed Health Minister on 14/3/2020. The event was not recorded, whereas the presentation of a sash to a champion sheep dog was.
There’s got to be a cartoon in that.
My preferred Republic model is that the role of the Governor General is performed on a rotating basis by Judges of the High Court. This episode has done nothing to dissuade me of that view. What’s required is practiced judgement in executing the law and convention in an impartial way.
I don’t see how a popularly elected leader can be guaranteed to have that quality, nor do I think it is a good idea to have parliament appoint a person – the role should be apart from parliament as much as possible. The appointment of judges is currently non-political (we’d perhaps have to take steps to safeguard that) and the rotation mechanism (annually) I propose would ensure there’s a lag between an appointment of a new judge and them serving in this capacity that would dissuade a distortion of the process. I note that there is already a mechanism to remove a high court judge – 2/3 of both houses voting together – so it would take a bipartisan effort to do it. That seems appropriate.
Having current High Court Justices perform the role is a potential conflict of interest, given they Governor-General may need to be sued.
What would have been the public reaction to these dual ministers? It would have been criticised then reversed…. that is why it was kept secret. The leaders foundation grant along with Morrison Hurley and anyone else involved with this grant…. will be part of future Federal icac.
@Tom, the person performing the GG role would be recused in any case brought against them, obviously. I assume that is the case if they are sued for any other reason as well!
I think that the GG acted properly. He did what he was “advised” to do.
It’s unfortunate that some people want him to be more actively involved in politics, but I recall that doesn’t work well either.
I think he should publish an adjunct to his social diary that lists succinctly every official action taken by him. An announcement about a more detailed activity diary would calm the masses, I think.
Given the craven pronouncements of the LOTO and many of his -male- LibNat colleagues on the issue, as well as their behaviour before the election, I think it can be argued that “Me the Government” did have support of the LNP caucuses. In any case proving he didn’t seems impossible. Given the convention re bogus ministerial actions that Jenny Hocking etc. pointed out Ithink its unlikely any actions under these powers will be overturned.
The other troubling issue is the way Benson and Chandler concealed this. Was the Oz also a pillar of this state?
https://apple.news/Af2YqxxVFQE-X0D84Uigtag
Tom Clancy’s the Hunt for Red October has a political officer alongside the captain, XO …
My position on Hurley has hardened. He’s said he thought Morrison *”would”* make public his self ministerial appointment. He said he saw *”no reason”* to think Morrison wouldn’t announce the new powers. He clearly therefore understood that they should be made public, and when they weren’t, failed to act to ensure they were, either by doing so himself, or pressuring Morrison, either wilfully, or neglectfully. Or, more likely, under instruction. Legality aside, propriety is not something he should be seen to be lacking.
https://www.abc.net.au/news/2022-08-22/liberal-mp-says-scott-morrison-should-reflect-on-his-position-in/101355884
As always “it met the minimum standard of the law!” is the weakest of defences. It’s also my understanding that it’s mere convention rather than legal requirement that the Governor-General not pop down to Russell Offices and order the Army to seize Parliament House?
I didn’t think it needed to be said, but: we shouldn’t have secret Ministers, secret laws or secret elections. Apparently we can’t have nice things and this does need to be codified, but I don’t much care whether it’s the Prime Minister or the Governor-General that is required to publicise ministerial appointments, royal assent and election writs – presumably the Parliament can direct either of these offices if it writes the appropriate legislation.
https://thenewdaily.com.au/finance/2022/08/23/paul-bongiorno-governor-general-republic/?