Why didn’t the governor general push back against Scott Morrison’s secret ministries?

Scott Morrison says the governor general, David Hurley, “acted with absolute propriety” around the former prime minister’s secret self-appointment to five ministerial portfolios, but questions linger over whether the Queen’s representative had any power to push back.

Hurley has said he acted within the constitution, noting that publicising ministerial appointments is the responsibility of the federal government, not Government House. But the governor general said on Wednesday afternoon he “had no reason to believe that appointments would not be communicated”. Morrison has declined to say whether Hurley recommended he make the appointments public.

The prime minister, Anthony Albanese, has said he would not criticise Hurley, and legal experts say a constitutional crisis could have been triggered had Hurley refused Morrison’s request. But they warn this saga has exposed how vital cogs of parliament are dictated by tradition, rather than law.

Scott Morrison defends secret portfolios as ‘necessary’ and refuses to resign – video What did the governor general do?

Documents released by the Department of the Prime Minister and Cabinet on Wednesday show Hurley signed administrative instruments to appoint Morrison to “administer” the departments of health, finance, home affairs, treasury and industry.

On Monday, a spokesperson for the governor general confirmed this had been done in keeping with the constitution.

“These appointments do not require a swearing-in ceremony – the governor general signs an administrative instrument on the advice of the prime minister,” the statement read.

Wednesday’s statement from Government House said the Department of the Prime Minister and Cabinet was “responsible for that process”.

By convention, the governor general takes the advice of the prime minister. Morrison said Hurley “took the advice from the government of the day and acted accordingly”.

Prof Anne Twomey, a constitutional expert at the University of Sydney, wrote this week: “It is the governor general who appoints ministers to particular portfolios and swears them in.”

What was different about the Morrison appointments?

Twomey goes on to say ministry appointments are “ordinarily done publicly … then published in the Commonwealth Gazette”.

Morrison’s appointments were not publicised on the gazette, in the parliament, via press release, or even communicated to most of the ministers holding the portfolios he was sworn into.

The former prime minister Malcolm Turnbull told the ABC the governor general was “not just a rubber stamp” and had “a constitution to uphold”. What is unclear is whether Hurley asked Morrison about his intentions, or whether he knew the appointments would be kept quiet.

“If he was given notice saying the prime minister was doing this secretly, not telling cabinet, one would expect the governor general may have raised concerns, or sought further advice,” Twomey says.

“Ultimately the role of the governor general is to act on the advice of ministers, but he does have a role in relation to propriety and the constitution.”

Could Hurley have acted differently?

Prof George Williams, of the University of New South Wales, says Hurley essentially had “no choice but to act on the advice of the prime minister”.

“If he hadn’t done so, that would have provoked a constitutional crisis. He did what was required of him. It’s important to realise he had no discretion,” Williams says, but notes the governor general does have the ability to ask for further information, or give advice to the government.

“It’s up to the PM if that advice is acted upon,” Williams says.

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“What we don’t know is whether [Hurley] used those tools. Possibly he asked questions about whether cabinet ministers or the parliament would be informed, but we don’t know more.”

Twomey says on current information there is “nothing unconstitutional” about Morrison’s actions, even if they were wildly against convention.

“The governor general was never really in a position not to do it. The question is whether he used his rights to warn or seek advice,” she says.

“It’s quite conceivable he really didn’t know [the appointments would be kept secret]. I’m reluctant to express criticism of the governor general, especially not knowing what he was told.”

Why wasn’t it publicised?

Hurley’s statement on Monday said it was up to the government to publicise ministerial changes. That was reiterated on Wednesday, but the governor general’s spokesperson added Hurley “had no reason to believe that appointments would not be communicated”.

Twomey says such communications are usually done by departments.

“When the governor general signs regulations, he doesn’t personally put them on the federal register of legislation,” Twomey says.

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“If the governor general is told ‘this is secret and don’t release it’, and he did, that would cause significant controversy so he’s unlikely to do that.”

Morrison said in his press conference on Wednesday he would not discuss private conversations, but asked whether he thought Hurley had been asked not to publicise the appointments, the former prime minister said: “I don’t believe he was.”

Did Hurley do anything wrong?

Twomey and Williams both say Hurley acted as he is obliged.

“I can’t give a criticism at the moment,” Twomey says.

Williams says: “In fact, to suggest otherwise is to potentially introduce a much larger constitutional crisis. If there’s a problem, there’s a problem with the system.”

The Labor MP Julian Hill has been critical of Hurley’s actions, telling the Nine newspapers he had “effectively participated in a scheme that misled the cabinet”.

Albanese did not agree.

“I have no intention of undertaking any criticism of the governor general. The governor general acted in accordance with the recommendations of the government,” he said on Wednesday.

What happens next?

Albanese said he was “open to a range of reforms” when asked whether all appointments should be published.

Williams says the situation demands change.

“A few days ago, I’d have said convention and practice clearly dictates transparency, and it would be unthinkable to appoint a secret minister,” he says. “We need to learn from that.

“Parliament should act and legislate for transparency, a law that makes it crystal clear ministerial appointments be made public at the earliest opportunity.

“It’s a key vulnerability in Westminster systems that they rely on prime ministers acting by accepted rules, which are not written down or even enforceable.”