A startling fact that Australian solicitor general Stephen Donaghue identified in his advice on the Morrison multiple ministries scandal is that there’s evidence the former PM had been contemplating secretly taking on the administration of extra departments from his early days in the top job.
The nation’s second highest ranking law officer outlines that although the multiple administrative appointments were legal, the fact that they were never announced to parliament or to the public, led to “the principles of responsible government” being “fundamentally undermined”.
The details of Morrison’s impropriety are well known, yet the implications are not.
The recently published instruments that facilitated the appointments of the former Liberal leader show that he became an administrator of Health and Finance in March 2020, Industry, Science, Energy and Resources in April 2021, and Home Affairs and the Treasury the following month.
The ex-prime minister was able to do this with the legal advice provided by his then attorney general Christian Porter because Chapter II of the Australian Constitution relies upon well-established conventions not set out in the founding document to allow for “development and adaptability”.
The trashing of democratic principles involved in Morrison’s deceit, however, aren’t what was contemplated by the “deliberate lack of specificity” in the Constitution.
And while the public and parliament are in agreement on that, Morrison’s recent foray before the press, and his subsequent posting of humorous memes, reveal that he continues to consider his actions appropriate and aboveboard.
In his advice that focuses on Morrison’s appointment as an administrator of the Department of Industry, Science, Energy and Resources by the governor general David Hurley on 12 April last year, Donaghue explains that Morrison’s multiple appointments were legal.
All five appointments invoked section 64 of the Constitution, which provides that the governor general can appoint multiple ministers to administer the one department. The High Court confirmed this in its 2001 Re Patterson; Ex parte Taylor ruling.
Section 65 of the Constitution provides the GG with the authority to appoint ministerial offices.
Donaghue found that this power wasn’t invoked for Morrison’s first two appointments, and where it was for the final three, it was redundant, as he was never designated to hold these ministerial offices.
So, the appointments were lawful, but there are questions relating to the PM’s department not announcing the appointments, that the instruments weren’t published, no changes were made to the ministry lists, there was no mention in the Gazette and the departments remained clueless.
However, as the SG notes, there is nothing in the Constitution or any statutory requirements that necessitates these actions, as these practices are a result of convention, which have been left that way to deliberately leave “room for further evolution in the institution of responsible government”.
Pre-empting the attack
Donaghue then goes on to highlight an early change to the ministry lists that pre-empts a situation where a minister may be appointed to administer additional departments without this becoming parliamentary or public knowledge early on following the appointment of Morrison to PM.
Ministry lists have been tabled for at least half a century and are regularly updated. They show appointments to ministerial offices but not those administering each department, which was sufficient when it could be inferred that a minister was also the sole administrator of a department.
These lists contain a footnote, which at least since 25 January 2019 but, as the SG explains, likely since 28 August 2018, four days after Morrison was appointed to the head role, has contained a line that expressly sets out what has only recently been exposed as having taken place.
“Ministers are sworn to administer the portfolio in which they are listed under the ‘Minister’ column and may also be sworn to administer other portfolios in which they are not listed,” the footer reads.
This suggests that the calculation and the legalities around the shadow ministries were made at least 13 months prior to the pandemic, which is the excuse that Morrison has tried to provide as a reason for his taking on a suit of extra powers and responsibilities.
As Donaghue puts it in his report, “The words contemplate an apparent practice whereby ministers may be appointed to administer one or more departments of state without those appointments being published (at least in the ministry list).”
Undermining responsible government
According to Donaghue, whilst these actions aren’t illegal, they’re certainly problematic, as they undermine “the constitutionally prescribed system of representative and responsible government” because the executive branch of government could no longer be properly held to account.
Responsible government, the SG sets out, is “a concept based upon a combination of law, convention and political practice”, which is enforced parliamentarily, not legally. And as these conventions are implied in the Constitution, nonadherence means the principle has been breached.
Under responsible government, the executive branch is held to account by parliament, which in turn engages the constituency. But if parliament is not made aware of who is administering a department, then those individuals who are doing so are left unaccountable.
Donaghue further outlines that “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,” as it identifies who is “entitled to exercise statutory powers”.
Trashing long-term conventions
The solicitor general lists a number of possible responses. These include altering ministry lists procedures or requiring publication of such appointments in the Gazette but, ultimately, statutory requirements for publishing those appointed to administer departments may be warranted.
In response to the SG’s advice, prime minister Anthony Albanese has directed his office and that of the governor general to commence publishing administerial appointments in the Gazette, and he has determined to launch an inquiry into the shadow government debacle.
But what is clear from the solicitor general’s report is that the former prime minister has shown that some politicians that rise to prominence can’t be trusted to act in accordance with well-established conventions and practices if they aren’t enacted in law.
Image of the Australian solicitor general sourced from the Attorney General’s Department website