On saving the governor-general, part I

Last week saw the death, at the age of 89, of David Smith, who had served as official secretary to five successive governors-general of Australia. He is remembered particularly for having read, on 11 November 1975, the proclamation dissolving both houses of parliament following the dismissal of the Whitlam government, ending with the words “God save the queen” – prompting Gough Whitlam to respond that “nothing will save the governor-general.”

So it is unfortunate that Smith did not live to see Tuesday’s release of the solicitor-general’s advice on the actions of the current governor-general, David Hurley, in relation to the affair of Scott Morrison’s secret ministerial appointments. The affair has led to questions being raised about the future both of Hurley and of the office he holds.

Australian readers are unlikely to have missed the saturation coverage, but for the benefit of others, it’s come to light in the last week and a half that in 2020 and 2021, when Morrison was prime minister, he had himself appointed to five additional portfolios: without publicising the fact, and in some cases without even telling the regular ministers. He has claimed, implausibly, that this was prompted by the need for a possible emergency response to Covid-19.

Current prime minister Anthony Albanese, happy for the opportunity to further ruin his predecessor’s reputation, asked solicitor-general Stephen Donaghue to advise on the legality of the move. You can read his opinion here – it’s well worth your time.

Donaghue (who is a very able lawyer – he’s featured in this blog once before, here) has many sensible things to say about how ministerial responsibilities are allocated, and why multiple secret appointments, although strictly legal, are subversive of responsible government. As he puts it, “Neither the people nor the Parliament can hold a Minister accountable for the exercise (or, just as importantly, for the non-exercise) of particular statutory powers if they are not aware that the Minister has those powers.”

He also has some useful suggestions for how procedures, and possibly legislation, could be changed to prevent such an occurrence in the future. But the most interesting part, in my view, is the opening section of his advice, where he deals directly with the role of the governor-general.

On the surface, the solicitor-general exonerates Hurley from any blame. It’s worth setting out the whole passage (para 14; footnotes omitted):

The power to appoint Ministers to administer departments of State is vested by s 64 [of the constitution] in the Governor-General alone. However, there is no doubt that the Governor-General is bound to follow the Prime Minister’s advice in the exercise of that power. That is a very clear constitutional convention. While the Governor-General has certain reserve powers that may be exercised without or contrary to advice, the power to appoint Ministers (other than the Prime Minister) is not one of them. Indeed, the convention that the Governor-General act upon advice except in circumstances where the reserved powers are enlivened is itself a vital component of the system of responsible government. Accordingly, in circumstances where Mr Morrison clearly advised the Governor-General to appoint him to administer [the department], and given that the appointment of a Minister to administer multiple departments is not unlawful (for the reasons I am about to address), it would have been a clear breach of the applicable conventions for the Governor-General to decline to accept and act upon the Prime Minister’s advice. That is so whether or not the Governor-General was aware that the appointment would not be published.

Since, as just noted, Donaghue’s ultimate conclusion is that Morrison’s actions breached the fundamental conventions of responsible government, the assertion that the governor-general could not have prevented them without contravening a similarly fundamental convention is hardly a compelling argument. No inquiry seems to have been made as to which convention might be more vital.

Instead, Donaghue embraces the idea of a distinction between “reserve powers”, where the governor-general retains some actual discretion, and other powers that, although theoretically personal (that is, not explicitly given to the “governor-general in council”), must never be exercised “without or contrary to advice.” My view is that this distinction is untenable.

The better view, it seems to me, is that while the governor-general can act only upon advice (although in the case of dismissal of a prime minister that advice is retrospective, in the sense that a new government must be available and prepared to take responsibility for the removal of its predecessor), all of their personal powers involve a theoretical element of discretion: a right, that is, to refuse to accept advice in extreme circumstances.

Of course, no governor-general will ever greet routine advice from their prime minister with a bald “no”. But all of their personal powers are matters that could potentially be subject to abuse if the governor-general was to be treated as simply a rubber stamp, unable to question or challenge in any way the advice that they receive.

And Donaghue in fact concedes that. In a classic case of burying the lede, his footnote number 12, at the end of the passage quoted above, contains this aside: “Of course, even in contexts where the Governor-General is required to act upon advice, the Governor-General always has the right to be consulted, to encourage and to warn in respect of Ministerial advice.”

That trilogy – “consult, encourage and warn” – is not new; it goes back 150 years to Walter Bagehot. But it has been curiously absent from most of the discussion on Hurley’s role. The solicitor-general professes himself uninterested in the question of whether those rights were in fact exercised: “I do not know, and I do not need to know,” he says in footnote 12, “as that is likewise irrelevant to the validity of the appointment.”

Indeed it is. So, though, is the question of whether Morrison’s actions undermined the system of responsible government, which, as we have seen, Donaghue has no problem in venturing to answer. His construction of his brief narrows only when that seems necessary to protect the governor-general.

The point is that while it was not open to Hurley to simply refuse Morrison’s request, it was very much open to him to say something like, “Look, I’m not really comfortable with this. Can you tell me more about why you think it’s necessary? Have you considered other options, or consulted with the relevant ministers?” Such an inquiry would be even more appropriate for the later appointments, after the first one had been made but not publicised.

It’s possible that Hurley did this. But it seems unlikely, if only because, if it did happen, we probably would have heard about it by now: someone in the governor-general’s camp would have leaked it to a friendly journalist. Perhaps pressure of circumstances made him incurious on this occasion (as Anne Twomey seems to suggest), or perhaps that now is just how the governor-general operates.

So, does it matter if the office of our effective head of state has been reduced to a cipher, and if so, what should be done about it? This post is already too long, so those will be questions for part two.