Scott Morrison’s action in having himself appointed secretly to multiple ministries was legal but breached “the principle of responsible government”, according to the advice from the Solicitor-General, Stephen Donaghue.
Releasing the advice, Anthony Albanese announced the government would set up an inquiry, under an “eminent person with a legal background”, into the former prime minister’s actions.
Albanese said questions that needed examining included: “Why this occurred? How this occurred? Who knew about it occurring? What the implications are for our parliamentary system? Are there any legal implications behind decisions that were made? How can we avoid this happening again?”
Over 2020-21 Morrison had himself appointed to the ministries of health; finance; industry, science, energy and resources; home affairs and treasury. The appointments were not announced, Morrison did not tell cabinet and some of the ministers directly affected did not know.
The advice focused on the resources department, where Morrison overrode the decision of the minister on a gas exploration project, but the findings applied to the departments generally.
The solicitor-general said the constitution’s section 64 empowered the governor-general to appoint multiple ministers to administer a single department.
But under responsible government, outlined in chapter II of the constitution, the executive was responsible to parliament and, through it, to the electorate.
“It is impossible for the Parliament and the public to hold ministers accountable for the proper administration of particular departments if the identity of the Ministers who have been appointed to administer those departments is not publicised.”
Morrison’s multiple appointments were not announced and “there was no way the public could discern [them] from the Ministry list, or anywhere else.”
“The capacity of the public and the Parliament to ascertain which Ministers have been appointed to administer which departments is critical to the proper functioning of responsible government, because it is those appointments, when read together with the [administrative arrangements order], that determine the matters for which a Minister is legally and politically responsible.”
“To the extent that the public and the Parliament are not
informed of appointments that have been made under s 64 of the Constitution, the principles of responsible government are fundamentally undermined.”
“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.”
“Nor can they hold the correct Ministers accountable for any other actions, or inactions, of departments.”
Morrison’s name did not appear in the ministry list in October 2021 in relation to any of the five departments he had been appointed to administer, the advice noted.
The solicitor-general said the undermining of responsible government did not depend on the extent to which Morrison exercised power.
Canvassing a number of ways the government could remedy the situation, including having all details put in ministry lists, the solicitor-general observed such measures would not bind future governments.
“For that reason, the Government might choose to entrench a requirement for the publication of appointments under s 64 of the Constitution by creating a statutory requirement for the publication of appointments”.
Albanese said he had told his department to work with the Office of the Official Secretary to the Governor-General to adopt a practice of publishing in the Commonwealth Gazette future appointments of ministers to administer departments. The government will also consider legislation to ensure such appointments are made public.
Governor-General David Hurley has come under public criticism for apparently not questioning the strange arrangement Morrison was making.
The solicitor-general noted, “The governor-general has no discretion to refuse to accept the prime minister’s advice in relation to such an appointment.”
Hurley himself has said he had no reason not to think the government would make the appointments public.
Albanese made it clear he would not criticise Hurley.
Asked whether Morrison should resign from parliament, Albanese said that is “a matter for Mr Morrison and his colleagues”.
“Quite clearly, I think Mr Morrison’s behaviour was extraordinary. It undermined our parliamentary democracy and he does need to be held accountable for it.”
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