The powers vested in prime minister Scott Morrison by the Governor-General David Hurley during the five-ministries affair represented both a sword and a shield against any coup against Morrison himself. They also gave Morrison unparalleled capacity to seize power for himself, casting aside some of his most powerful ministerial colleagues without being held to account by important constitutional protections against tyranny implicit in the concept of responsible government.
When the Solicitor-General, Stephen Donaghue, found fundamental constitutional fault with the arrangements this week, he did not, as such, refer to the possibility of a coup, a quasi-dictatorship, or extra-constitutional efforts to force Morrison from office. But these are logical possibilities coming from the way that Morrison was enabled to overrule the judgments and opinions of the most powerful members of Cabinet, put in control of the government’s economic and financial power, as well as suzerainty of the Australian Federal Police, the paramilitary Border Force, and the primary security service.
He did lack ministerial control of Defence, sparing us the sight of Abrams tanks lumbering down Northbourne Avenue to take charge of the ABC, and ships standing off Port Phillip Bay to hold Dictator Dan at bay. On the other hand, he had an unusually compliant Commander in Chief of the armed force, with, apparently a very firm view about his obligation to follow advice proffered by the properly elected prime minister.
I have no idea whether Morrison considered the potential of taking up the ministerial appointments for himself as a means of making his power more absolute, and less open to account, whether to parliament or the law. Or whether he vested himself with such powers so that he could use them defensively to effectively overrule any decision made by his colleagues that he did not want.
He initially implied that he had sought such powers so that there would be no interruption to the government’s ability to exercise power caused by the illness, incapacity or inability to communicate of ministers during the pandemic. Such ministers might be ill, incommunicado, or unconscious. Morrison’s lurid imagination even allowed him to contemplate a breakdown of law and order – maybe even some breach with individual states and territories, and its becoming necessary that he, anointed by God and appointed by the electorate as the supreme leader had to take firm charge.
He soon abandoned this argument. A minister out of commission can be replaced in an instant, and does not even need to be in Canberra to be sworn in. Indeed a minister, already sworn in as a member of the executive council, need take no oath at all, whether to take up a new ministry, or an extra one. The photos and ceremony of a swearing in, at Government House of elsewhere, are public relations theatrics, not required by the constitution.
Did any of Morrison’s advisers tell him he was being seriously weird? Did anyone actually suggest the course of action?
Morrison may not have known all of these constitutional niceties, but there were people in his department, in his private office, and even in his cabinet who did. One does not have to think that any of these folk were in Morrison’s confidence about why he wanted such powers, or what he planned to do with them. But it is remarkably interesting that there is no public record so far of any of them advising against appointing himself to particular ministries, or of recognising the risks to proper government (even by the bizarre standards of Morrison and his team). Moreover, no-one appears to have been promoting the idea of an announcement of the appointments, something that almost all by itself would have aborted clandestine use of the ministerial functions for some eccentric purpose.
Morrison’s second line of defence has been that the nature of the crisis, including the sharing of powers with premiers and chief ministers, necessitated some centralising of power at the Commonwealth level, if only for efficiency. Ministers might have been up with their portfolios, but only he was across all of the issues, and only he possessed that sense of balance, proportion and strategy that saw the big picture all at once. Moreover, the public was looking to him for leadership, and any perceived failing, for example in ordering, or distributing vaccines, was being attributed to him personally, and blamed on his own poor management and judgment. That was why he had to take charge, or, at least, to have a reserve power to take charge if there were any crisis.
But governing parties are usually well able to vest general tactics and strategy, and the assessment of priorities, to a prime minister, who nonetheless rules through cabinet and according to law, accepted conventions and usage. Whether with pandemic management, with the coordination of a response to defence and foreign affairs crises, or the husbanding of resources for an election, the leadership in question is political leadership. It does not involve – has never previously involved – any concept of a takeover of executive functions, or the seizure and centralisation of legal powers in one person. The very purpose of cabinet, a big prime minister’s department, and a well-staffed private office was to allow cooperative co-ordination. Ministers down the food chain who would not play the game could lose the prime minister’s confidence and, by that very fact, be forced out of office.
The Solicitor-General’s comments about the dangers inherent in concentrating such power in the hands of one person are entirely true – indeed understated. He is right, too, to focus on how secret ministries fundamentally undermine the concept of responsible government. How can a minister, let alone a prime minister, be open to account to the parliament when the parliament has not even been informed of his ministerial appointment, his role and functions and duty to administer the department, and the fact that the prime minister has had a dormant right to step in and overrule any of the ministers notionally responsible for the department?
Parliament does not have a privilege of being able to question ministers, to monitor and supervise spending, programs and plans, and to generally hold them to account. It is a right and a duty – an essential part of the functions of a legislature, and intrinsic to the Westminster system whereby ministers must be members of the parliamentary chambers.
You don’t give unaccountable power to the control freaks and the power mad
Morrison’s political ideas owe more to the US than the Westminster tradition. He’s not steeped in the law, culture and constitutional tradition. His religious ideas and personal philosophy – and attitudes to bringing religious values into the political domain – stem more from fringe American cults than mainstream Christianity. He has resisted close scrutiny of his religious ideas. But it is becoming clear that he has had too much of a free ride on the subject.
He was prime minister long enough for us to see compulsive secretiveness, resentment of being called upon to explain, evasion, prevarication, dissembling and outright lying as defining characteristics. He is more comfortable in marketing and public relations – arts in which he has demonstrated a limitless capacity to reinvent reality, and to pretend total conviction in the snake-oil of the moment, even where it differs from what he said yesterday.
His is not the personality or the character to whom unaccountable power should ever be given. He has never much been trusted, even by his colleagues. Or liked, at a personal level. He has continually struggled to pretend that he is just an ordinary suburban dad, with mainstream pre-occupations, including sport. That’s partly because of his self-serving Machiavellian arts, and his fixation on political numbers and the control and management of allies and enemies.
He has demonstrated, during his career, a greater than usual capacity for betrayal, backstabbing and abuse of power — particularly with power exercised out of the public eye. It is by no means a coincidence that a man who has always insisted that he is for smaller and more limited government has presided over a bigger, ever more powerful government than any other in the past 75 years. That he has some taste for public cruelty – particularly to welfare beneficiaries and asylum seekers — and no instinct for what Christianity would call good works. His management of a bushfire crisis and floods – and his cack hand on women’s safety and autonomy – are flaws of character, not of political reflex.
There is something unreal in the assertion by the solicitor general that the secret appointment was legal, even if the pattern and risk of the appointments made was a basic threat to the system of responsible government. While he thinks that the lack of publicity to any such appointment creates a constitutional crisis, he is insistent that it does not invalidate the appointment.
It is not yet settled that the appointments were valid and that the Governor-General only did his duty
Donaghue adopts Hurley’s view that the GG is generally obliged to take advice from the prime minister, and that the advice was not incorrect in form.
But this invites the question whether the GG’s automatic assent, because it has come from the PM in proper form, should be assumed to be valid on that ground alone, even if it has obvious bad effects and undermines the very nature of constitutional government. I asked Tom Brennan, SC, about this, and he pointed out that advocates representing the Commonwealth are hardly ever likely to agree with any proposition entrenching some limitation on Commonwealth power.
“Consequently, it was to be expected that the Solicitor-General would conclude that there is no implication to be found in the Constitution which requires disclosure of the fact of appointment of a Minister to administer a department pursuant to s. 64 of the Constitution.
“I have no doubt a Court would agree with the Solicitor-General that the failure to disclose an appointment under s. 64 is inconsistent with the constitutionally entrenched system of responsible government: by which Ministers must account to both houses of Parliament for their administration of Departments which they are appointed to administer.
“There is a fair chance that the Courts would take the next logical step – and find that the valid exercise of the power to appoint a Minister to administer a department under s. 64 requires a disclosure sufficient to enable the operation of the constitutionally entrenched system of responsible government. That would be completely consistent with the High Court’s reasoning in Lange v ABC which is the basis of the modern freedom of political communication.
“If the Courts were to do that, they would conclude that Mr Morrison’s undisclosed appointments to administer Departments were invalid and that the Solicitor General was wrong to conclude that they were valid,’’ Brennan said.
Hurley has implied that he did not know that Morrison had no intention of letting the world know that he held this reserve appointment. But that must have been obvious after the first appointment, which was one to which he could have returned. There was no precedent for a secret appointment. The practical and constitutional difficulties it would cause were fairly obvious.
He could have taken this up by exercising his rights – as many GGs before him have done – to ask questions, to suggest publicity, and to warn of the consequences of the public (and even the relevant minister) not knowing of the new top dog.
Earlier GGs such as Paul Hasluck, Zelman Cowen, Ninian Stephen, Bill Hayden, William Deane or Quentin Bryce would have been hyperalert once they saw formal advice of the sort Hurley did. They asked questions, and sometimes returned materials so that work they regarded as being essential was done.
The advice recommended to Hurley that he “appoint me, as prime minister, to administer” the particular department. It said that this appointment would allow him “to be the responsible minister for matters within that portfolio as and when required”. It was peculiar even before it emerged that the project was to be shrouded in secrecy.
But the explanation raises the suggestion that Morrison had no immediate intention of taking up the appointment until he perceived the need to do so. That was the case. The power was there from the moment Hurley signed it but did not become operative until Morrison perceived that undescribed circumstances had arisen, or unannounced conditions had been fulfilled, to make it appropriate that he begin personally to exercise his functions of administering the department. Given that each of these departments already had ministers, they would continue to be administered by others. Once the PM wanted to take over, it was clear that his decisions overruled those of other ministers, even if those decisions had already been made. Once Morrison took up the job, he was top dog.
That seems to me to be a dormant or conditional appointment, which is not an appointment of a type that Section 64 of the constitution authorises. It is arguable, indeed, that Section 64 only authorises appointments which provide both a power and a duty to administer a particular department immediately. An instrument appointing Morrison to administer the Treasury “if and when required” would probably not be valid.
Prime minister Anthony Albanese has announced an inquiry but appears to have accepted as a working principle that there are no issues about the validity of the appointment, or about how Hurley saw his role. There are, and they are bound to emerge, if only because the validity of Morrison’s powers will come up in court during the gas producer’s appeal about the loss of rights.
Even if the PM does not want an open-ended inquiry, possibly continuing forever, he would be wise to consider the possibilities of the inquiry’s looking at the whole pattern of lawlessness in the Morrison government. A pattern of avoiding accountability. A pattern of ministers, led by the PM, taking charge of grant programs for partisan purposes. A pattern of doling out public money to rich friends and relations, and party donors without adequate disclosure or protection of the Commonwealth interests. The PM has already announced a royal commission into Robodebt, which this inquiry should not duplicate. But it would not be doing that if it merely contrasted the mean, suspicious and coercive regime ministers (including Morrison) imposed on poor Australians with the open hand shown to cronies.
It’s not merely a matter of taking every opportunity to make political capital at the expense of Morrison and ministers in his government, such as Peter Dutton and Sussan Ley. It’s a matter of helping the public service re-learn the rules of good government and recovering from the systemic debauching it has been through. The new head of PM&C, Glynn Davis has to focus on restoring the thinking part of the service. But he needs to give equal attention to its moral part.
John Waterford AM, better known as Jack Waterford, is an Australian journalist and commentator.
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