The stench of Morrison’s dormant constitutional coup

Aug 23, 2022
Scott Morrison 2022

The great unravelling of Scott Morrison’s pseudo-constitutional coup deserves a comprehensive inquiry. Perhaps a royal commission. It’s a commission that could also embrace other improper, illegal or general style of secretive unaccountable government, and also take in the connivance, or learned ignorance of other ministers and senior bureaucrats.

Having such an inquiry is essential for any sort of learning and healing from the egregious mistakes of nine years of coalition misrule. Only incidentally is it also an excellent opportunity for making such political war on Morrison and the National Party that they ought to be out of power for years.

Those who want to reserve some of the major rorts of coalition government for the national integrity commission will still be left with plenty of opportunities. But that’s at least a year away, even if there is legislation on the books, as promised, by the end of 2022. Before that we need a scene-setting – conducted by fair-minded and independent commissioners – into the style of the former coalition government.

There should be a searching look at its approach to transparency and accountability, its approach to handing out money to private sector mates and cronies, and its deviation from established conventions of politics and public administration. This cannot be only an inquiry into the character and record of Scott Morrison as minister and prime minister – though his character and understanding of the rules would necessarily be centre stage, given that no one would speak against him.

And in the middle of the inquiry would be an attempt to unravel whatever it was in Morrison’s mind when he persuaded an all-too trusting Governor-General to grant him dormant commissions to administer other government departments. That’s because all of his explanations so far simply do not stack up.

The professional bullshit artist – the spy, the errant husband or the politician – quickly learns the sheer necessity of a second cover story. It’s for use only after the first cover story – which paints the user in a somewhat heroic light – has been comprehensively exploded, often because the intended victim knows something the liar hadn’t expected. Then comes the well-rehearsed second cover story, which paints the teller in a more discreditable and embarrassing light, but not one so bad that he puts his head in the noose.

The teller admits, with every show of frankness, that he had made up the original cover story because he was ashamed of what he had done. We tend to believe a revised story admitting bad character. Morrison’s first story was that the pandemic required him to have special powers in case of a crisis. His second story is that since he was getting all the blame anyway, he might as well have all the power. The second cover story is just as fundamentally false.

The GG cannot escape censure for letting himself be conned

It’s on these general principles that one should not give any great credit to the explanations offered so far by Scott Morrison about why he conned a Governor-General into giving him dormant commissions to administer five government departments other than his own. Scott Morrison has long been a congenital and often wicked liar, so used to it, in fact, that some observers, such as journalists from, note that he often lies even when the truth does him no harm.

That he deceives, misleads and dissembles does not necessarily mean that he is a good liar. His colleagues as much as his enemies, and the public, have long experience of his tendency to stretch the truth. Many of his schemes have initially been surrounded by his chronic secretiveness, resistance to being called to account, and capacity to find some diversion.

Once those ramparts are breached one discovers his amazing capacity to delude himself by his ability to reconstruct the known facts. He has a sincere, almost evangelical capacity to pretend total belief in what he is saying. Indeed, he may believe it at that moment, even if he will feign just the same sincerity when he has significantly revised the story to deal with the entry of fresh inconvenient facts.

Most of the character and personality of Scott Morrison, as well as his habitual duplicity, are now of primary interest to the historians. There’s still scope for throwing dirt at colleagues who went along with him, either knowing and condoning his conduct, or (unbelievably) ignorant of his fundamental mendacity. Politically Morrison is dead meat, has been found out and rejected by the electorate, as well as by his colleagues. There’s no coming back.

That said, the coalition’s anxiety to see him cast into the wilderness and forgotten is premature. Many things have changed since the election of the Albanese government. Morrison now seems only a nightmare. Even the new opposition, so recently contemptuous of calls for transparency and due process, checks and balances against corruption, arbitrary government and the abuse of principles and conventions of honest government, have now seen the light.

Dormant and secret commissions not permitted by constitutional practice

There has never been any practice of dormant, sleeping, or conditional commissions as ministers. Not in the Commonwealth, the states or in any of the Westminster-style governments such as Canada, New Zealand or India. The spirit of our constitution – what in Britain would be called the unwritten constitution — would forbid it.

A dormant commission is one that is to be taken up at a future time, when some condition has been met, or some event has occurred. In the extraordinary case of the five Morrison commissions, it was not to be objective evidence that the circumstances existed for the commission to be activated. It was the judgment of the person holding the commission that it was time to take up the assignment.

The Governor-General, David Hurley has been much criticised for failing to make public the giving of the commission to Morrison, on Morrison’s advice. He has answered that it is for the prime minister and his department to provide publicity to vice-regal and executive council appointments. Perhaps with appointments to diplomatic posts or the Sewer Board. But not with ministers. At first, the GG may not have known that Morrison intended to keep entirely secret his first appointment (of a dormant commission to administer Health). But it must have been quickly clear that not even Morrison’s colleagues knew, and that he himself was expected to remain entirely silent about it.

When the GG issued the further commissions, over Treasury and Home Affairs, Finance and Industry, he can have been in no doubt that these were commissions that were both dormant (that is to take effect at some future time, not now) and secret (to be kept from the executive council, the Cabinet, the ministers able to be overruled, the parliament, the general public service, apart from a very few officers in his own department, and the public at large.

The commissions are expressed as vesting power to administer the department from the day that the GG signed them. That permitted Morrison to announce his appointment and to exercise the powers of the minister at any time. Hurley must have realised that the powers were operative only after public announcement. He had been told, after all, that the commissioning was necessary in case of some unanticipated crisis caused by the pandemic requiring immediate action to prevent a hiatus of power. Even if the GG were unavailable or very ill, delay to initiate emergency action could be avoided. All that was necessary was the prime minister announce that he had the GG’s commission to administer Health, and to exercise legislative powers vested in the health minister only.

I accept that Hurley was obliged to follow the advice of Morrison as to a commissioning with immediate effect. But I do not believe that it is constitutionally possible for the GG to sign a dormant commission of a Section 64 ministerial appointment to take effect at some indefinite future time, least of all when the arrangement is shrouded in secrecy.

It is true that the GG could sign some (non-ministerial) appointment expressed to take effect on the known date of retirement of another official, or on arrival at some remote outpost. The power of that official, or the moment of assuming power, could be judged by objective standards. But there is the world of difference between that and creating some secret job to be taken up at some unspecified moment, to be determined by the minister himself. It was absolutely of the essence of what Morrison was doing that no-one but himself knew that he was holding this power in reserve.

The novelty and dodginess of Morrison’s request should have tipped the GG to the need for caution and openness. The misjudgement stains his record, indeed is his lasting record. 

The very novelty of what Morrison was asking, and the knowledge that Morrison regularly showed no regard for process, law or convention, should have suggested to Hurley a need for caution and personal conviction of a strong constitutional footing.

It is said that the then Attorney-General, Christian Porter had asserted that fresh ministerial appointments could be made by regulation without any need for a formal commission. But even assuming that Hurley respected Porter’s abilities, Porter’s advice was oral and off-the-cuff, not formal. If Hurley was going to rely on Porter’s view (he has not said he did) he should have had it formally. Even then, given Porter’s odour he was entitled to demand further advice, perhaps from the Solicitor-General. We know he was not consulted. If he had been he would not now be preparing a report into what happened for the Albanese government.

Hurley could say that as far as he was concerned, the appointments took effect from the moment he signed them. Whether or when Morrison chose to act on his new authority was a matter for him. The problem with this is Hurley’s presumed knowledge that the other ministers were unaware that they now shared authority, and that Morrison’s commission implied a capacity to overrule decisions by the other minister, even though that minister was unaware that he shared constitutional power of the department. (Remember too that at any time Morrison lost confidence in the relevant minister he could ask the Governor-General to remove his commission, and the Governor-General would immediately comply. Though the office of prime minister is not mentioned in the constitution, convention, usage and practice make the prime minister the GG’s principal adviser, and with the sole authority of recommending ministerial appointments, and disappointments or dismissals.

Sir Paul Hasluck, Sir John Kerr, Sir Zelman Cowen, Sir Ninian Stephen, Bill Hayden and Sir William Deane at times demanded legal advice and further and better particulars before doing what the prime minister asked. Sir Ninian famously changed history in 1983 when he sent Malcolm Fraser home to do his homework on double dissolution advice and (not deliberately) gave Labor the time to change leaders from Bill Hayden to Bob Hawke.

Morrison’s first cover-story, and the one that presumably convinced Hurley, was that the dormant commissions were to maintain continuity in government even if the pandemic reached the point of putting government into chaos. It might also have informally included the claim of the prime minister, as leader of the government, that he might need to invoke the power if the health minister, given draconian powers to deal with an epidemic, went mad and began acting without sense, reason or accountability. Biosecurity legislation imagined power to act in a general breakdown on health and ordinary government. Some of the powers given were effectively unappealable. And, like Defence Act powers in time of war, the powers extended well into the general economy, into the movement of the population, the power to give directions to cops, and perhaps the armed forces. Perhaps these powers did need checks and balances, but if so, it is surprising that this was not tackled by amending the legislation, rather than creating a shadow government out of the public eye, and itself incapable of being ruled by conventional process.

His second cover story was less worthy. It was his government. He was the one held to account and criticised for everything that happened, even when he had no power to give directions. If he was to be blamed, he wanted the power to deserve it. All things being equal he had confidence in the actual ministers, and was quite happy to use his influence, personally or in cabinet, rather than his powers. But he could imagine a need to rely on powers, and a need to move very quickly.

As it happened, he pointed out, he never did invoke his powers, at least in relation to the management of the pandemic. He did exercise them, on the imploring of coalition members on the NSW north coast to stop offshore gas exploration, in the process overruling Keith Pitt, until then unaware that Morrison had a dormant commission over his portfolio. But that was for electoral purposes and had nothing to do with the pandemic.

Morrison says that the fact that the powers were not used in respect of the pandemic makes the whole matter a non-issue, and people need to move on. Moreover, he had been secretive – a decision he now regretted – because he did not want to dishearten ministers with a false implication he lacked confidence in them. Nor did he want to alarm the public, which might be given to panic or unfair speculation.

Version two might seem slightly more believable but does not satisfactorily explain why he was in effect creating a shadow government, able to be administered through PM&C, and accountable to non-one. To some it might have seemed like coup preparation, which traditionally begins by taking over the vital facilities and functions in the capital. He did not seem to sense, or even now acknowledge, the uncertainties and doubts that his arrangements involved. Nor that they were unnecessary for the purposes for which he claimed to need the powers.

Morrison is not yet telling the full story. We have no reason to believe anything he says. There is clear evidence of trying to get around the requirements of the constitution and breaking any number of conventions and understanding about how responsible democratic government operates. There’s been a long pattern of this. Morrison may now be dead meat, but the smell, the feel and the taste of his lawless regime will persist until there is a searching investigation.

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