The secret ministries affair surprised and confused many in 2022. As 2023 begins, are there questions for Governor-General David Hurley that remain unanswered?
Prime Minister Albanese and inquiry head Virginia Bell both understandably focused their criticism on Scott Morrison rather than Hurley. In the lengthy Bell Report, just three and a half pages focus directly on Hurley, with the clear view from Ms Bell being that I consider the criticism of the Governor-General to be unwarranted.
But what did the Governor-General know about the secret nature of these appointments?
In a statement attributable to a spokesperson for the Governor-General and released on August 17 last year, it was said that The Governor-General had no reason to believe that appointments would not be communicated. The phrasing is tantalising, and in a recent post on the Australian Public Law blog, I argued that it raises questions about Hurley's role and that of his office.
Once may be regarded as misfortune
It's worth remembering the chronology of the five secret ministerial appointments. Then-PM Morrison was appointed to administer Health and Finance in March 2020, Industry, Science, Energy and Resources (DISER) in April 2021, and Treasury and Home Affairs in May 2021. There was thus a gap of more than a year between the first pair of appointments and the final three appointments.
So for the first pair of appointments made in quick succession in March 2020, it might have been perfectly plausible for Hurley to have no reason to believe that those appointments would not be communicated. But, it might be thought, once a year had elapsed without the first pair of appointments being made public, it became increasingly implausible that the Governor-General would have no reason to believe that the third, fourth, and fifth appointments would not be communicated or made public.
Indeed, this implausibility is reinforced by the Bell Report's own logic as explained in a different passage of the report. In a section assessing the credibility of some of Mr Morrisons explanations, the Bell Report said that "any idea that the gazettal of the Prime Minister's appointment to administer the Treasury (or any of the other appointments) would not be picked up and quickly circulated within the public service and the Parliament strikes me as improbable in the extreme".
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If this improbable in the extreme logic applies to Morrison's explanations, why not to Hurley's statements? It does not seem unreasonable to draw an analogy and say, of the Governor-General, that it is improbable in the extreme to suggest that the communicat[ing] of the appointments would not have been picked up and quickly circulated within the public service and the Parliament (and beyond).
An unusual appointment
The implausibility of the Governor-General's position is only exacerbated when we take into account the Bell Report's findings about the nature of the third appointment to administer DISER. Before that appointment, the Department of Prime Minister & Cabinet warned the official secretary to the Governor General that the DISER appointment was unusual; so much so that the official secretary anticipated Hurley may require further information from Morrison.
So, again employing the Bell Reports own logic, after the third appointment, what conclusions did the Governor-General and his office draw when the news of an unusual appointment was not picked up and quickly circulated within the public service and the Parliament or beyond? And yet according to the Governor-General's final sentence, even by the time of the fourth and fifth appointments he had no reason to believe that appointments would not be communicated.
Three possible conclusions
Three possible conclusions may be worth considering. The first possible conclusion is that the Governor-General's statement is simply implausible and, at least in part, inaccurate. No doubt His Excellencys inaccuracy was inadvertent, but the interests of trust and confidence in government mean it would be wise for the Governor-General to correct the record. The second possible conclusion is that Hurley genuinely had no reason to believe the appointments would not be communicated, and had no conversations with Morrison about their communication. But if this conclusion is accepted, this may also be troubling: it means that the Governor-General and his office did not notice that news of these appointments (even an unusual appointment) had not been picked up and quickly circulated within the public service and the Parliament. On this point, the Bell Report included discussion of the Governor-General's Bagehot rights: "the right to be consulted, the right to encourage, the right to warn".
If the Governor-General is to be able to exercise these rights, that suggests a need for the Governor-General's office to be generally aware of current events, observant of day-to-day politics, and across relevant media. To put this another way: if we do not expect the Governor-General's office to keep a watchful eye on news about the appointment of ministers (or on the absence thereof), or political developments generally, what do we expect of it? There is perhaps a third logical possibility. In one or more private conversations Morrison may have assured Hurley that he would ensure the appointments were communicated. Such assurances may even have been offered in response to the Governor-General exercising his Bagehot rights. From those assurances, perhaps, the Governor-General could be said to have no reason to believe that appointments would not be communicated. But the continuing nature of such a statement might suggest (at best) an extraordinary degree of trust and generosity on Hurley's part and (at worst) a degree of credulousness. So the third possibility also raises questions: how trusting (or credulous) do we expect our Governor-General to be? In a system with the Bagehot rights, we might be wary of a governor-general who was not at least prudently sceptical. Expecting a modicum of scepticism is, of course, not the same as expecting the governor-general to act contrary to advice: our focus here is on Hurley's knowledge.
Future historians will know more than we do about precisely what happened during the period of the Secret Ministries. The role of the Governor-General should not be forgotten when those histories are written.
- Ryan Goss is an Associate Professor at the ANU Law School.
