‘No reason to believe’: the Governor-General and the Secret Ministries
Ryan Goss
16.12.2022
It is said that journalism is the first rough draft of history. In 2022, there have been many first drafts of the history of the Secret Ministries affair. Much has already been written about various aspects of the Secret Ministries. In a thought-provoking forthcoming article in the Australian Law Journal, for example, Fiona Roughley and Megan Caristo explore whether ‘the Constitution contains an implied requirement that any appointment of a person to administer a department of State be made public within a reasonable period’. The release of the Bell Report on 25 November 2022 — and of many of the submissions made to the Bell Inquiry — have added to our knowledge of the events surrounding the Secret Ministries.
Historical accounts play an important part in our constitutional system. They shape our understanding of constitutional conventions, and affect how we think about constitutional reform. It is important that we understand that history – even very recent history – as accurately as possible.
The bulk of the Bell Report, and much of the commentary on the Secret Ministries affair, has understandably focused on the actions and explanations of former Prime Minister Morrison. The recent censure motion will no doubt ensure that, as the literature on this affair grows and future generations of law students and lawyers pore over the events of 2020-22, Mr Morrison remains the central subject of analysis.
In this post, I reflect on some aspects of what we know about the role of Governor-General David Hurley in this affair. As will become apparent, my goal in this post is not necessarily to say that the Governor-General ought to have done something differently, ought to have asked some question or taken some particular action. It is certainly not to argue that the Governor-General ought to have acted contrary to advice or without advice.
Instead, my goal is to consider the significance and plausibility of what has been said publicly on behalf of the Governor-General about the secrecy of the appointments, particularly in light of the broader reasoning and conclusions of the Bell Report.
Singing from the same song sheet
The consensus position seems to be that criticism of the Governor-General is unwarranted. On 16 August 2022, soon after news of the Secret Ministries had broken, Prime Minister Albanese said
…the Governor-General acts on advice from the Government of the day. He has put out a statement to that effect. And also, it's up to the Government of the day what announcements are made. That's the declaration that the Governor-General has made.
Prime Minister Albanese also made similar comments in a press conference on 23 August.
In the Bell Report itself, three and a half pages focus directly on the Governor-General, with the clear view from Ms Bell being that ‘I consider the criticism of the Governor-General to be unwarranted.’
And after the release of the Bell Report, Prime Minister Albanese said, in response to a question on 25 November 2022, that ‘the report makes it very clear that it doesn't raise criticism of the Governor-General because he was acting upon the advice of the elected government of the day.’
The Governor-General’s public statements about secrecy
Our focus here is on the ‘secrecy’ of the Secret Ministries. As news of the Secret Ministries broke, a number of statements were made on behalf of the Governor-General. The first statement was made on Monday 15 August. Two days later, on Wednesday 17 August, a second statement was made. In a statement ‘attributable to a spokesperson for the Governor-General’ and released on 17 August, it was said:
In relation to questions around secrecy: any questions around secrecy after the Governor-General had acted on the advice of the government of the day are a matter for the previous government. It is not the responsibility of the Governor-General to advise the broader Ministry or parliament (or public) of administrative changes of this nature. The Governor-General had no reason to believe that appointments would not be communicated. (emphasis added)
The recipient of the communication envisaged by the final sentence is not made explicitly clear. But read in context with the previous sentence, I suggest that it is reasonable to infer that what was meant by the final sentence was something like that the Governor-General had no reason to believe that appointments would not be communicated to the broader Ministry or parliament (or public).
The final sentence has attracted some attention. Indeed, on 23 August, Prime Minister Albanese said:
…the Governor-General…has also said that there was no reason why he would think it would not be made public. Now, I think there are implications in that statement by the Governor-General.
And in his submission to the Bell Inquiry, Prof Luke Beck submitted that:
The Governor-General’s claim is implausible.…[he] must have realised something was amiss when after five very strange appointments over two years nothing had popped up in the media.
The Bell Report noted the final sentence at [198].
Chronology and plausibility
It is appropriate to pause at this point to recollect the chronology of the five ministerial appointments. As described at [1] of the Bell Report:
Mr Morrison had been appointed to administer the Department of Health on 14 March 2020, the Department of Finance on 30 March 2020, the Department of Industry, Science, Energy and Resources (“DISER”) on 15 April 2021, and the Departments of the Treasury and Home Affairs on 6 May 2021.
There was thus a gap of more than a year between the first pair of appointments and the final three appointments. Let us consider the Governor-General’s final sentence in light of that chronology.
With respect to the first pair of appointments made in quick succession in March 2020, it might have been perfectly plausible for the Governor-General to have no reason to believe that 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. I will expand on the reasoning underlying that implausibility in a moment, and some alternative explanations.
The Bell Report considered arguments about whether the Governor-General ought to have realised, after the first pair of appointments, that those appointments had not been made public. At [199], the Bell Report stated:
In March 2020, at the height of the onset of the COVID-19 pandemic, the Governor-General appointed Mr Morrison to administer two critical departments of State against the risk that the responsible minister might be unable to discharge his duties. In the event, neither Mr Hunt nor Mr Cormann was incapacitated. The inference that the Governor-General should have realised from these facts that the two appointments had not been made public is not self-evident. It had never been the practice of Government House to arrange for the gazettal of appointments when made administratively “on the papers”...
Leaving to one side the questions about responsibility for arranging gazettals (questions addressed by the Bell Report), let us focus on the possible ‘inference that the Governor-General should have realised’ that the first two appointments had not been made public. Such an inference is relevant, of course, because if it was sustained, it would undermine the plausibility and accuracy of the final sentence. A later passage of the Bell Report itself provides us with a useful device to assess this inference further: let us try to use the Bell Report’s own logic to test the final sentence.
Analogy from elsewhere within the Bell Report
In a passage at [228] assessing the credibility of some of Mr Morrison’s explanations for his actions and thinking, the Bell Report says this:
228. Mr Morrison’s choice not to inform Mr Cormann, Ms Andrews or Mr Frydenberg of his appointments to administer departments of which each was portfolio minister out of the wish not to be thought to be second guessing them remains difficult to reconcile with his understanding that each appointment had been notified in the Gazette. One might have expected Mr Morrison to have informed each of these Ministers of the appointments had that been his understanding. While few members of the public may read the Gazette, 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.….(Emphasis added)
So let us use this logic from the Bell Report to attempt to draw a rough analogy. Mr Morrison claimed (inter alia) an understanding that each appointment had been notified in the Gazette; the Governor-General claimed he had no reason to believe that appointments would not be communicated to the broader Ministry or parliament (or public). The positions are certainly not identical but they bear similarities. 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).
If the Bell Report’s logic raises doubts about Mr Morrison’s claims about a belief the appointments had been gazetted, surely that logic could be adapted to raise doubts about the Governor-General’s claim that he had no reason to believe that appointments would not be communicated. After news of the first two appointments — or even of the third appointment — was not ‘picked up and quickly circulated’, one might wonder if it continued to be plausible for the Governor-General to maintain he had no reason to believe the appointments would not be communicated. Later we will return to the significance of this point and some possible explanations.
An unusual appointment
The implausibility of the Governor-General’s position is only exacerbated when one takes into account the Bell Report’s findings about the nature of the third appointment, that of Mr Morrison to administer the Department of Industry, Science, Energy and Resources (DISER) in April 2021. At [154] of the Bell Report, the events surrounding that appointment were described in useful detail:
Mr Reid [of the Department of Prime Minister & Cabinet] telephoned Mr Singer [Official Secretary to the Governor-General] to advise that Mr Morrison was proposing to make further changes to administrative arrangements. Mr Singer made a diary note of the conversation. He recorded that Mr Reid told him that Mr Morrison’s proposed appointment to DISER was “unusual” but that “the process is fine, valid and consistent with existing practice” and that Mr Morrison might raise the matter during his regular breakfast meeting with the Governor-General which was scheduled to take place the following morning. Mr Singer said that Mr Morrison should provide the Governor-General with additional context in relation to this proposal. The Governor-General received Mr Morrison for their scheduled breakfast meeting on 13 April 2021.
Then, in the section of the Bell Report focused on the Governor-General, it was said at [200]:
The Governor-General was on notice that the proposed appointment to administer DISER was “unusual”. … It is likely that the DISER appointment, and possibly further appointments…were raised by Mr Morrison at [the 13 April breakfast meeting]. Whether the Governor-General was satisfied with any account given by the Prime Minister or whether he exercised his right to warn is not known. The “right to warn” does not carry with it a right to have the warning heeded. What is clear beyond argument is that the Governor- General was bound to make the appointments if, after raising any issue about them, the former Prime Minister insisted on them being made.
One cannot cavil with the conclusions reached in the final sentences of [200]. But let us dwell on the significance of the earlier findings. The Governor-General’s Official Secretary had been told by PM&C that the third appointment was ‘unusual’; so much so that the Governor-General’s Official Secretary anticipated the Governor-General may require further information from the Prime Minister. We also know, from the final sentence of 17 August 2022, that the Governor-General maintains he had no reason to believe that appointments would not be communicated.
So, again employing the Bell Report’s 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?
It might be thought ‘improbable in the extreme’ to suggest that the ‘communicat[ing]’ of that appointment would not have been ‘picked up and quickly circulated within the public service and the Parliament’. 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.
A dormant redundancy: three possible conclusions
At least three possible conclusions may be drawn.
The first possible conclusion is that the Governor-General’s statement is simply implausible and, at least in part, inaccurate. No doubt that inaccuracy was inadvertent, and perhaps arose from a need to publish a statement swiftly in the media maelstrom of August 2022. But if the statement is indeed inaccurate, 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 the Governor-General genuinely had no reason to believe the appointments would not be communicated, and had no conversations with Mr Morrison about their communication. But if this conclusion is accepted, this may also be troubling: it means that the Governor-General and the Governor-General’s office did not notice or think it remarkable that news of these appointments (even an ‘unusual’ appointment) had not been ‘picked up and quickly circulated within the public service and the Parliament’. If they had noticed, they might have had reason to think the appointments would not be communicated. But, we know, they had no such reason.
On this point, the Bell Report included useful discussion of the Governor-General’s ‘Bagehot rights’:
To state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others.
If the Governor-General is to exercise these Bagehot 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 discussion and debate. We need not go so far as Queen Elizabeth II is said to have done, receiving ‘a daily dose of gossip’ from Westminster. But as Prof Twomey noted in The Veiled Sceptre:
In practice, few vice-regal officers receive Cabinet documents or have regular meetings with the Prime Minister. Most only learn of government actions by reading the newspaper.
If the Governor-General genuinely had no reason to believe the appointments would not be communicated, even after the first two or three appointments, then the reasoning above suggests there may be a need for change within the office of the Governor-General. To put this another way: if we do not expect the Governor-Generals’ 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? If our system is to rely on a Governor-General exercising their Bagehot rights from time to time, then we can expect the Governor-General and their office to monitor news and current affairs in a thoughtful and engaged way. In time, the Secret Ministries affair might also prompt us to think about the place of the Bagehot rights in a future republican Constitution.
There is perhaps a third logical possibility. In one or more private conversations Mr Morrison may have assured the Governor-General 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 to warn or encourage. 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, in the face of the arguments above, might suggest (at best) an extraordinary degree of trust and generosity on the part of the Governor-General and (at worst) a degree of credulousness. (To be clear, in outlining that third possibility, one does not then need to argue that the Governor-General ought to have refused to make the appointments or refused to act on advice: our focus is on the Governor-General’s description of his knowledge.) But the third possibility also raises questions: how trusting (or credulous) do we expect our Governor-General to be? Too sceptical a Governor-General might run the risk, described by Twomey, that we may tip over into an exercise of reserve powers:
The point at which the rights to be consulted, to encourage and warn come closest to the exercise of a reserve power is where…a vice-regal representative refuses to act upon advice until such time as questions are answered, there is compliance with particular procedures, or there is political consensus…
In a system in which the Bagehot Rights adhere, however, we might also be wary of a Governor-General who was not at least prudently sceptical. If conversations with the Prime Minister were sufficient for the Governor-General to have no reason to believe the appointments would not be communicated, even after the first batch of appointments, one may wonder if a little more scepticism was justified. Expecting a modicum of scepticism from the Governor-General is, of course, not the same as expecting the Governor-General to act without advice or contrary to advice: our focus here is on the Governor-General’s description of his knowledge.
Future historians will know more than we do about precisely what happened during the period of the Secret Ministries. The first draft of history will be revisited and revised. But, even in 2022, it is important for all of us to approach this recent history thoughtfully and critically.
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Ryan Goss is Associate Professor at the ANU Law School. Thanks to Joshua Neoh and the AusPubLaw editors for comments on earlier drafts. The usual disclaimers apply.
Suggested citation: Ryan Goss, ‘No reason to believe’: the Governor-General and the Secret Ministries' on AUSPUBLAW (16 December 2022)<https://auspublaw.org/blog/2022/12/no-reason-to-believe-the-governor-general-and-the-secret-ministries/>