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 the Federal Executive Council.
So how come hardly anyone knew about it, including ministers themselves? After all, the Council consists of all ministers of state. But in practice, as few as two minister can form a quorum for Executive Council, according to the Council 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 that 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 his own 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 David 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 for 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.
