Scott Morrison’s secret self-appointment to five extra portfolios was legally valid, according to the solicitor general, Stephen Donaghue QC. But Tuesday’s legal advice accused the former prime minister of “undermining responsible government”.
Donaghue’s eagerly-anticipated advice did not implicate Morrison in any legal wrongdoing but the report was scathing of the attitude to government conventions, and the prime minister, Anthony Albanese, has flagged a further inquiry into who else knew and whether there are further legal implications.
What did the solicitor general’s advice say?
Donaghue’s advice was critical that Morrison could not be held to account for the five departments to which he was secretly appointed.
Morrison again protested on Tuesday he had only exercised those powers once, in the resources space to strike down the Pep-11 gas exploration project. But Donaghue said this did not excuse Morrison.
“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,” he wrote.
“From the moment of his appointment he was both legally and politically responsible for the administration of that department, and yet he could not be held accountable for the way that he performed (or did not perform) that role.”
Did Morrison break any laws?
The solicitor general was asked whether Morrison was validly appointed to administer the Department of Industry, Science, Energy and Resources (as an example). “Yes,” was the response.
The solicitor general affirmed the governor general, David Hurley, has the power to appoint ministers on the advice of the prime minister. Donaghue said that process was followed, there was no legal requirement for such an appointment to be publicised, or for a minister to subscribe to an oath.
“Accordingly, Mr Morrison was validly appointed to administer DISER on 15 April 2021,” he said.
What was unconventional about Morrison’s actions?
Despite Donaghue’s advice that the appointment was legal, immediately afterwards he noted the appointment was “inconsistent with the conventions and practices that form an essential part of the system of responsible government”.
“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,” he said.
What will the government do?
Albanese said his cabinet had agreed a further inquiry is necessary to probe remaining questions.
The solicitor general said the government had “many options” to remedy the issues raised by Morrison’s actions, including legislating that all ministerial appointments be published in the gazette and all ministers be published on a department’s website.
Albanese 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 publish future appointments in the gazette and was still considering “further immediate changes”.
How will the inquiry work?
At this stage, it’s not settled. Albanese said he was considering a range of options, with cabinet to debate them further. He flagged it would be led by an “eminent” legal expert, adding “it needs to be not a political inquiry”.
Asked if the inquiry into Morrison’s actions would be wrapped into a wider inquiry on the pandemic response, Albanese said “this will be a stand-alone issue”.
“I want this to be quite an expeditious inquiry. I don’t want this to drag on. I want to get conclusions and then act on them.”
Greens Senator David Shoebridge said he wanted any inquiry to have “royal commission powers” to demand documents and compel witnesses – including Morrison himself.
“Too many inquiries are announced to respond to pressing political pressure, but don’t have the powers, scope or resources to get to the bottom of the problem and make the changes needed,” he said.
In his statement, Morrison said he would “appropriately assist any genuine process to learn the lessons from the pandemic”. Despite calls for an inquiry specifically into his own secret actions, the former prime minister said he also wanted scrutiny on the actions of the states and territories.
Will there be any further consequences for Morrison?
Albanese stopped short of endorsing any potential censure motion or other parliamentary process to reprimand Morrison. Despite the deputy prime minister, Richard Marles, saying Morrison should face consequences, Albanese said such questions were “a matter for Mr Morrison and his colleagues” – but he added Morrison “does need to be held accountable”.
Parliament has powers to censure members, as well as rarely-used abilities to fine or even jail politicians. It’s understood a censure motion may not gain the support of the government.
Melissa Donnelly, the national secretary of the Community and Public Sector Union, tweeted “if Scott Morrison was a regular worker he’d be sacked by now”.
A regular reminder that if Scott Morrison was a regular worker he’d be sacked by now…
— Melissa Donnelly (@DonnellyMel) August 23, 2022
In the APS public servants can get in trouble for much less… pic.twitter.com/51jadFUDSn
What questions remain?
Albanese on Tuesday said he still wanted answers to questions including: “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?”
Albanese said there were still “clearly a whole raft of questions” outstanding, noting that the solicitor general had produced the legal advice based on what was already known – hinting that further implications may unfold following any further information coming to light.
The solicitor general notes in his advice, regarding the secrecy around Morrison’s appointments, that he had no information regarding “whether the lack of any notification was the result of a direction from Mr Morrison, or for some other reason”.
What happens next?
Government sources said Albanese would likely make a decision or give further advice in the very near future on the government’s actions, and the shape of the inquiry.
