Scott Morrison and/or his officials prepared the way for the Prime Minister or a Minister to secretly administer a government department in August 2018, just four days after Morrison took power after disposing of Prime Minister Malcolm Turnbull.
Many months before the 2019 federal election and a year before the beginning of the Covid crisis, the list of Morrison government ministers contained a foot-noted warning that ministers ‘may also be sworn to administer other portfolios in which they are not listed’.
The Solicitor-General, Stephen Donaghue QC, noted this addition to the ministerial list in his report to Prime Minister Anthony Albanese saying the ‘impetus for the inclusion of those words is unclear, although it seems possible that they were included so as to ensure that the tabling of the Ministry list did not mislead Parliament’.
He continued, ‘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). The point is starkly illustrated be the fact that Mr Morrison’s name did not appear in the Ministry list published in October 2021 with respect to any of the five departments that he was appointed to administer between March 2020 and May 2021’.
Another explanation (not provided by the Solicitor-General) is that the change was made very deliberately in contemplation of the Prime Minister being able to appoint himself or another minister if he chose, to administer departments in secret.
And this was almost one of the first acts of his government, before there was any possible, justifiable need for secrecy.
The Solicitor-General provided the most innocent feasible explanation of this provision for future secret appointments (to avoid misleading Parliament). But it does not explain why a government would want to keep any such appointments secret, nor should be able to.
And warning Parliament that it might be misled into thinking that the ministerial list was accurate is no excuse for in fact deliberately misleading it. It cannot happen by accident that a minister is ‘sworn to administer other portfolios in which they are not listed’. If that happens, and Parliament is not informed about it, Parliament is being misled deliberately, no matter what the footnote says.
One consequence of misleading the Parliament in this way is that the Minister who has been secretly appointed cannot be asked questions about their actions as the responsible minister. They cannot be held accountable in this most fundamental way.They also cannot be held accountable by the courts, as is provided for in the Constitution. In fact Morrison did put his name to the one decision as a ‘shadow’minister he has owned up to, that affecting gas exploration off the NSW coast, and he will have to demonstrate that his decision was taken according to the legislative requirements – a task made more difficult by the fact that he apparently intervened and used his secret powers in order to achieve a political result, namely to protect vulnerable Liberal-held seats in the election.
The Solicitor-General’s opinion notes that the exculpatory footnote, dated 28 August 2018, provided to the Senate and tabled on 10 September 2018 does not appear in a few subsequent ministerial lists but it is fully restored by 25 January 2019.
The inquiry that is being established by Prime Minister Albanese will need to discover what motivated the creation of the footnote and its subsequent publishing history.
But the basic question that must be answered is what prompted Prime Minister Morrison (or his officials) to prepare the way for his government to appoint ministers to positions that would not be openly disclosed to voters and to parliament. None of the excuses that Morrison provided last week are relevant to the pre-pandemic situation in which the ground was prepared for these appointments.
It will also need to reveal what advice Morrison provided to the Governor-General when he asked him (in fact, required him) to appoint the PrimeMinister to the various portfolios, beginning with health and finance.
Nor should the inquiry ignore the role of the Governor-General. While he had no choice but to act on the Prime Minister’s request, he should have sought explanations including legal opinions.
As the Solicitor-General explained, the appointments that were made were quite legal and constitutional. But the secrecy invoked by Prime Minister Morrison meant that the principles of responsible government were ‘fundamentally undermined’. So too was the relationship between the ministry and the public service, because the relevant public service heads were not told their departments were being administered by an additional minister.
The proposed inquiry will need to question the principal actors to determine why this attack on crucial elements of our system of government were ‘fundamentally undermined’. That could be difficult and embarrassing for them.
David Solomon is a former legal and political correspondent. He has degrees in Arts and Law and a Doctorate of Letters. He was Queensland Integrity Commissioner 2009-2014.
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