Scott Morrison is resisting pressure to resign from parliament over his five secret ministry positions, but further details about his unprecedented power grab could be revealed on Monday with the delivery of legal advice from the solicitor general about what happened and how it occurred.
The Labor government is mulling changes to federal laws and further action through House of Representatives processes after the prime minister, Anthony Albanese, accused his predecessor of misleading parliament.
But it is unclear exactly what practical consequences, if any, Morrison could face for his actions, beyond further criticism in the parliament.
What will the solicitor general’s advice show?
Advice from the former attorney general, Christian Porter, paved the way for Morrison’s covert self-appointment to administer the departments of health, finance, Treasury, home affairs and resources. The solicitor general, Australia’s “second law officer”, has been asked by Albanese to investigate the “implications” of Morrison’s secret additional jobs.
The government has not revealed much detail about the nature of the request. Albanese said on Monday he was “seeking further advice as to the use of these extraordinary powers” by Morrison, and what legal implications may have been caused by the failure to inform the public of who was sworn to administer certain portfolios.
Albanese noted a legal matter in the case of the Pep-11 gas exploration project, which was rejected by Morrison after taking administration of the resources portfolio.
Guardian Australia contacted the attorney general’s department for comment on the solicitor general’s brief. It’s understood the department was not involved in providing the initial legal advice to Morrison.
Were Morrison’s actions legal?
Albanese said this was one of the points he was seeking to clarify. Government sources suggested it was likely the solicitor general’s advice would show Morrison’s appointments to the five departments were legal, as the governor general, David Hurley, said in a statement on Monday.
Can a person exercise the statutory powers of a Minister under a statute if their appointment to that ministry is secret? Doesn’t our fundamental democratic values mean that in order for a person to exercise the power of “the Minister” they must be publicly declared as such?
— Malcolm Turnbull (@TurnbullMalcolm) August 18, 2022
Former prime minister Malcolm Turnbull, who Morrison succeeded in the Lodge following a 2018 leadership spill, has questioned whether the arrangements could be legal. He raised doubts over whether it was legally possible for someone vested with the powers of a minister to keep that ministerial status from the public.
“If we accept that you cannot have a valid secret law, how can a ‘secret minister’ validly exercise the statutory powers of that minister?” he told Guardian Australia.
In a series of tweets on Friday, Turnbull added “the appointments were made so Morrison could exercise the powers of the ministers secretly shadowed by him – as he did with the decision on the gas lease”.
But Prof George Williams, of the University of NSW, said he wasn’t sure that would fly. “You’ve got to identify a law that says that. It shouldn’t be possible, but I’m not aware of a law that says that,” he said. “At best, maybe there’s an implication from the constitution about responsible government. That wouldn’t make it illegal, but it may override any decisions that person makes, if their position wasn’t made public. But we don’t know if any decisions were made.”
How could parliament respond?
Politicians return to Canberra for federal parliament on 5 September. Greens leader Adam Bandt has written to Milton Dick, the Speaker of the House, calling for “an urgent referral” of Morrison to the privileges committee “for a possible breach of privilege or contempt of Parliament”.
“The secret swearing-in of the former prime minister to these ministries undermined the proper functioning of the House and its ability to hold the government to account,” Bandt wrote in a letter, sent on Thursday.
“It is fundamentally apparent that the House cannot hold a minister to account if the prime minister has refused to inform the House of who that minister is.”
Several crossbenchers have backed the Greens, but the government has not said whether it would support such a referral.
Education minister Jason Clare on Wednesday claimed “arguably the parliament was misled”, but again stopped short of saying Labor would take further action on Morrison.
“It’s a serious contempt of the parliament to mislead the parliament,” he told the ABC.
What are the consequences for misleading the parliament?
There are unlikely to be practical consequences if such a finding were made.
The parliament’s website states the House “may impose a penalty of imprisonment not exceeding six months on a person, or a fine not exceeding $5,000” for issues of contempt. However it is also noted that “neither the House of Representatives nor the Senate has ever imposed a fine under this provision”, and on only one occasion, in 1955, has a prison term been imposed.
It may be more likely that such a process would lead to a formal motion of censure in the parliament, such as that levelled against former senator Fraser Anning in 2019. The parliament does not have the power to expel members.
What questions remain unanswered?
In short – a lot. But they include:
Who else knew? Albanese said he believed “some members of [the Department of] Prime Minister and Cabinet” would have known.
Did Morrison exercise any powers? Morrison said he did not. Albanese, asked on Monday, said “we’ll have more to say about that”.
What will the government do next? Albanese said his next steps will be informed by the solicitor general’s advice, but the prime minister has faced some criticism for keeping the focus on Morrison all week. On Friday, Albanese and other ministers were questioned in media interviews about why they focused on Morrison instead of issues like cost of living.
“You just asked me the question, and I gave you the answer,” Albanese told Channel Nine’s Today, when asked about his priorities.
“If you ask me a question about inflation or about the economy, I’ll give you an answer about that as well. This isn’t an issue that I chose to raise. This is an issue that was created by Scott Morrison’s actions and by those in the Morrison government.”
