It will be surprising if constitutional lawyers find that the Governor-General acted lawfully by appointing Scott Morrison, former prime minister, to several portfolios already held by other ministers. Although the constitution is silent on the matter, having two (or possibly more) ministers in the same portfolio, with identical powers and responsibilities, is so inimical to the concept of responsible government as to make those appointments constitutionally implausible.
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The former sports minister Senator Bridget McKenzie, who famously awarded grants by exercising powers she did not have, grasped the concept of responsible government easily. What happens if two ministers make inconsistent decisions, she asked? Indeed, we might find out from a current court case because the former minister for resources Keith Pitt seemed to be inclined to allow mining permits off the NSW coast at the same time as Scott Morrison, former minister for resources, quashed the idea.
The current Prime Minister Anthony Albanese pointed out that Parliament could not hold a minister accountable if it did not know who the ministers are. And if they do know there are two, which minister will be the accountable minister? This is not an arcane matter unless we care little about ministers' constitutional positions and we care less about democracy.
It seems several Coalition ministers did know about this arrangement. The then-deputy prime minister and National Party leader, Michael McCormack, thought all was in order because Scott Morrison was prime minister. Pitt belatedly discovered that his ministerial powers were not unique to him and thought that was unusual. But neither McCormack nor Pitt even made the matter public. The same can be said for former minister for health Greg Hunt, who knew and did nothing. We will soon learn if the treasurer also kept the secret, as Morrison clearly wanted.
We can't forgive these politicians for being more political than principled, but we understand how they succumbed. The Governor-General David Hurley, however, is not meant to act politically and he faces a different test: he is part of the checks and balances that hold our Westminster system in good health. Our Heads of State are not meant to be mere cyphers. If that is all they are, we can save a considerable sum by abolishing what is merely a decorative position, by moving the many staff to more useful work and by selling Government House and Admiralty House.
True, the governor-general is required to act upon the advice of the prime minister. That is what the law says. But there are caveats to that requirement because no governor-general can properly adopt government advice if that advice is unlawful. More than that, governors-general should take reasonable steps to ensure their actions are lawful.
READ MORE:
- 'Stealth bulldozer': Scott Morrison held five secret portfolios
- 'Unprecedented trashing': What we know about the Morrison revelations
- 'Oversight': Morrison defends secret power grab as more ministries discovered
- Analysis: Bulldozing in secret, Scott Morrison trashes whatever legacy he had
- Explainer: What did Scott Morrison do and why does it matter?
So, we have a few questions. Did the Governor-General not understand the perverse implications of having dual ministers? Did he not realise that every daily Hansard, which list ministers and their portfolios for every parliamentary session, was misleading? And if the Governor-General did not see these problems, what was he and his staff doing? If Governor-General Hurley did have qualms, did he ask for and wait for authoritative legal advice. If all he had was the opinion of the then-attorney general Christian Porter, did he not appreciate such advice would be insufficient, tainted by political self-interest? Accepting legal advice from Porter would have been akin to using a prescription written by the then-health minister Greg Hunt.
The Prime Minister has, so far, rightly addressed with care the decisions of the Governor-General. On Tuesday morning, Albanese knew far too little about David Hurley's role. But there will be a time to judge whether the Governor-General did enough to exercise his reserve powers to protect government, parliament and, above all, democracy. If he did too little, we expect, as a predecessor Archbishop Peter Hollingworth concluded on another matter, that he would resign.
- Tony Harris is a former NSW Auditor General and senior Commonwealth officer.
