Morrison’s extra ministry legal, but undermined principles of responsible government: Solicitor-General

Solicitor-General Stephen Donaghue has found former Prime Minister Scott Morrison was validly appointed to administer the Department of Industry, Science, Energy and Resources portfolio, but the fact it wasn’t made public was “inconsistent” with conventions of responsible government.

The advice, requested by Prime Minister Anthony Albanese, was released in full on Tuesday morning. The advice only looked at the question of whether Morrison’s appointment to the portfolio, alongside then-minister Keith Pitt, was valid. It did not consider the other four departments that Morrison was secretly appointed to.

Scott Morrison was secretly appointed to lead five ministries.Credit:James Brickwood

In the advice, Donaghue said the appointment was “valid” as the Governor-General, acting on the advice of the prime minister, has power under section 64 of the Constitution to appoint an existing Minister of State, including the Prime Minister, to administer an additional department of State.

“The Governor-General has no discretion to refuse to accept the prime minister’s advice in relation to such an appointment. Nor is there any constitutional or legislative requirement for notification of such an appointment as a condition of its validity, or for the Minister to subscribe another oath or affirmation following such an appointment. Accordingly, Mr Morrison was validly appointed to administer DISER on 15 April 2021,” the advice said.

“That said, the fact that the parliament, the public and the other ministers who thereafter administered DISER concurrently with Mr Morrison were not informed of Mr Morrison’s appointment was inconsistent with the conventions and practices that form an essential part of the system of responsible government prescribed by Ch II of the Constitution.

“That is because it is impossible for 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. That conclusion does not depend on the extent to which Mr Morrison exercised powers under legislation administered by DISER, because from the moment of his appointment he was responsible for the administration of the department.”

In remarks scathing about the lack of transparency around the appointments, Donaghue noted the ability 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”.

“The end result is that, 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.”

Albanese, in a press conference in Canberra, said the cabinet had decided at a meeting on Tuesday morning there would be a need for a further inquiry. He said the details of the inquiry would be confirmed at a later date, but it would not be a political inquiry.

“There are a range of different options available to the government, but it is agreed that … it needs to be not a political inquiry but an inquiry with an eminent person with a legal background to consider all of the implications,” Albanese said.

He said he had directed the Department of Prime Minister and Cabinet to work with the Office of the Official Secretary to the Governor-General to adopt a practice of publishing future appointments of ministers to administer departments in the Commonwealth Gazette. He said this action could occur immediately and did not require further advice, but the government would give consideration to “whether any further immediate changes are required”.

“We will make a future announcement about an inquiry. I am giving notice today that that inquiry will take place. This isn’t something that can be just dismissed. This is something that goes to our very system of government which the solicitor-general’s advice makes clear,” Albanese said.

The prime minister foreshadowed the move to ensure that future ministerial appointments are made public could be mandated in law.

“I think one of the things we will need to consider is any future legislative changes to make sure that that is enshrined. To make sure that it is not dependent upon the goodwill of the government of the day,” he said.

Asked about the role of Governor-General David Hurley in appointing Morrison to the departments and whether it is feasible he did not know they were being kept secret, Albanese has steered clear of criticising the Queen’s representative.

“The report makes clear … the Governor-General acted upon the advice of the government of the day,” he said.

Pressed on whether a future inquiry will examine Hurley’s conduct, Albanese didn’t give a direct answer, saying only that:

“The governor-general’s role has been examined here and the governor-general has made a very clear statement, as from his perspective he operated according to, taking the advice of the government of the day, which is consistent with the responsibility of the governor-general.”

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