The Law

Nothing There, Essentially, but a Troubling Nothing

Augusto Zimmermann & Gabriël Moens

On August 22, 2022, Solicitor-General Stephen Donoghue, provided the Albanese government with his opinion on the secret ministerial appointments made by the former prime minister Scott Morrison. The Solicitor-General indicated that, although nothing illegal had happened,

The end result is that, 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. Neither the people nor the Parliament can hold a Minister accountable for the exercise (or, just as importantly, for the non-exercise) of particular statutory powers if they are not aware that the Minister has those powers.

Following receipt of the opinion,  Mr Albanese indicated that he intends to call an inquiry to ascertain the circumstances of Morrison’s allocation of ministerial portfolios to himself. However, if the former Prime Minister’s actions were ‘legal’, surely there is no need for an inquiry? The demand to have an inquiry may well be an attempt by the present government to gain political advantages by creating a thunderstorm where there is only a light drizzle.

By now, the story is well-known: Mr Morrison had himself sworn into five portfolios in addition to his prime-ministerial office. Over a period of approximately 12 months, between March 2020 and April 2021, Morrison secretly sworn himself in as a minister in charge of Treasury, Finance, Health, Home Affairs, and Industry, and Science & Resources. According to Tony Abbott, another former Prime Minister of Australia, Morrison’s decisions to allocate an additional five ministries to him and conceal it from the majority of those ministers was “unusual, unorthodox and strange”.[1]

According to Morrison, he did nothing wrong and these secretive arrangements were entirely acceptable, as “a break glass in case of emergency” safeguard during the COVID-19 pandemic.[2] “You mightn’t understand it because you haven’t been a prime minister in the middle of the worst crisis since the second world war”, Morrison told Sky News’s Andrew Clennell.[3] Certainly, Morrison’s point has some merit: it is always easy for outsiders to criticise the actions of a political leader, but it is infinitely more difficult for that same leader to make the hard decisions when designing an appropriate response to an unexpected crisis, in this instance the COVID pandemic. However, this pandemic did not amount to a war-like state of affairs. Not even Australia’s wartime prime ministers felt the need to give themselves secretive ministerial delegations or were prepared to undermine democratic transparency and the primacy of cabinet in the Westminster system.

“I believe it was necessary” to have these powers, which were “effectively emergency powers, to exercise in extreme situations that would be unforeseen”, Morrison said.[4] This argument would be reasonable if the secret commissions only related to those needed to fight the pandemic. But Morrison made himself also a minister for portfolios that did not directly relate to the management of the pandemic. In fact, Morrison even used the resources portfolio to arbitrarily cancel a gas project off the New South Wales coast, overriding then resources minister Keith Pitt. As Rocco Loiacano points out, “the cancelation of this project was vintage Morrison, playing politics to save the Liberal bed-wetters in once-safe North Shore Sydney seats under threat from so-called ‘Teal independents’’.[5]

When COVID-19 arrived in Australia in earnest — March 2020 — it triggered emergency powers that “damaged parliamentary democracy in ways that should never be repeated”.[6] According to Chris Merritt, vice-president of the Rule of Law Institute of Australia, instead of holding the executive branch of government to account, parliaments around this country “suspended proceedings and were complicit in an extraordinary transfer of power to federal and state ministers and officials. It left the impression that democratic law-making is a mere indulgence that can be set aside whenever important issues are at stake”.[7]

A revealing line in Morrison’s argument, presented on Wednesday, came in the following retort to one journalist: “You’re standing on the shore after the fact. I was steering the ship in the middle of the tempest”.[8]  However, as noted by veteran political journalist Michelle Grattan, “a ship is operated by a crew, not just a captain. Why not tell his cabinet colleagues he’d had himself put into multiple ministries?[9]  … If Morrison’s argument for his extraordinary action was so compelling, ministers would presumably have accepted the case. But it was full of holes and illogical”.[10]

In a democracy, it is important for the electorate to be concerned about and understand democratic processes and the rule of law. To be fair, it was not the first time a prime minister held multiple portfolios. Fifty years ago, Gough Whitlam was sworn in as Labor Prime Minister and held several portfolios. The difference, however, is that in 1972 this was done openly and transparently, not secretly. These secret transgressions are an affront to democratic accountability and are inconsistent with Australia’s parliamentary system of responsible and representative government.

Morrison’s news conference on Wednesday failed to dispel the concerns of the journalists, who attended the event. In this conference, Morrison referred to “the fear of the existing minister being incapacitated by Covid” as a plausible reason for secretly taking on all those ministerial roles.[11] And yet, David Speers, an Australian journalist and host of Insiders on ABC TV, correctly reminds us that

The Westminster system allows for acting ministers to be appointed immediately. There’s no reason why Morrison couldn’t have appointed someone else an acting minister if one of his team fell over. There’s no reason why he couldn’t have appointed himself as an acting minister, if he didn’t think anyone else was up to it.[12]

Morrison has said:

I believed it was as prudent, responsible action in the middle of a crisis to have those emergency powers in place to ensure that I could exercise the expectations of my responsibilities.[13]

This particular defence of accumulating several secretive ministries indicates that, in Morrison’s mind, writes journalist Sarah Martin, “these were the actions of a hero – a man who took his responsibilities so seriously that he was prepared to take on the burden of other portfolios just in case he was needed”.[14] According to Martin, Morrison believed that Australians have elected him “not as the member for Cook in a representative democracy, but as their micromanaging supreme leader, someone prepared to grab power wherever possible in order to respond to the demands of the pandemic”.[15] For her, “the cognitive dissonance of Morrison’s defence is mind-boggling. One on hand, he wants us to believe the actions were perfectly rational and justified in the context, while on the other he admits he could not tell his colleagues about the arrangements because he knew they would be shocked and unhappy”.[16]

And where was the Governor-General during all this secretive process of self-nomination to consecutive ministerial portfolios? Section 64 of the Australian Constitution provides that “The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.” Admittedly, the Governor-General usually acts on the advice of the Prime Minister, but caught up in the imbroglio, he indicated that he had “no reason to believe that appointments would not be communicated”.[17] Surely, as section 64 suggests, the Constitution gives the Governor-General power to object to multiple appointments so as to uphold democratic transparency. When asked whether the Governor-General at any point asked him to make the arrangements public, Morrison limited his response to saying that criticisms of the Queen’s representative were “egregious”.[18]

To conclude, the pandemic played strongly to Morrison’s style of autocratic governance. It reminds the Australian electorate that it needs to urgently revisit their Constitution and the role of Governors-General so as to ensure that the outcomes and experiences under the alleged pandemic will never happen again in the future.

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association, editor-in-chief of The Western Australian Jurist and served as a member of WA’s law reform commission from 2012 to 2017. Zimmermann has authored numerous books, including “Direito Constitucional Brasileiro,” “Western Legal Theory,” and “Christian Foundations of the Common Law.”

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (2020) and “The Coincidence” (2021).

[1] Latika Bourke, ‘Unusual, Unorthodox and Strange: Tony Abbott’s verdict on Morrison’s ministries’, The Sydney Morning Herald, at https://www.smh.com.au/politics/federal/unusual-unorthodox-and-strange-tony-abbott-delivers-his-verdict-on-morrison-s-mega-ministries-20220816-p5baed.html

[2] Rocco Loiacono, ‘ScoMo’s secret dysfunction’, The Spectator Australia, 18 August 2022, at https://www.spectator.com.au/2022/08/scomos-secret-dysfunction/

[3] ‘As it happened: Scott Morrison resists calls to resign amidst minister portfolio saga; governor-general’s role questioned by MPs’, The Age, August 17, 2022, at https://www.theage.com.au/national/australia-news-live-fallout-continues-after-revelations-scott-morrison-swore-himself-into-five-portfolios-while-pm-20220816-p5badb.html?post=p541t7

[4] Michelle Grattan, ‘View from the Hill, Morrison reverts to type in an unconvincing defence’, The Conversation, August 17, 2022, at https://theconversation.com/view-from-the-hill-morrison-reverts-to-type-in-an-unconvincing-defence-188911

[5] Rocco Loiacono, ‘ScoMo’s secret dysfunction’, The Spectator Australia, 18 August 2022, at https://www.spectator.com.au/2022/08/scomos-secret-dysfunction/

[6] Chris Merritt, ‘Democracy damaged by Covid-19 overreach’, The Australian, August 11, 2022, at https://www.theaustralian.com.au/business/legal-affairs/democracy-damaged-by-covid19-overreach/news-story/4cb66bdaf8ad16c669e43d3471caf8e4

[7] Chris Merritt, ‘Democracy damaged by Covid-19 overreach’, The Australian, August 11, 2022, at https://www.theaustralian.com.au/business/legal-affairs/democracy-damaged-by-covid19-overreach/news-story/4cb66bdaf8ad16c669e43d3471caf8e4

[8] Michelle Grattan, ‘View form The Hill: Morrison reverts to type in an unconvincing defence’, The Conversation, August 17, 2022, at https://theconversation.com/view-from-the-hill-morrison-reverts-to-type-in-an-unconvincing-defence-188911

[9] Michelle Grattan, ‘View form The Hill: Morrison reverts to type in an unconvincing defence’, The Conversation, August 17, 2022, at https://theconversation.com/view-from-the-hill-morrison-reverts-to-type-in-an-unconvincing-defence-188911

[10] Michelle Grattan, ‘View form The Hill: Morrison reverts to type in an unconvincing defence’, The Conversation, August 17, 2022, at https://theconversation.com/view-from-the-hill-morrison-reverts-to-type-in-an-unconvincing-defence-188911

[11] David Speers, ‘Scott Morrison gave two reasons for secretly taking on five ministerial roles. But his lack of trust is what’s most extraordinary’, ABC News, August 18, 2022, at https://www.abc.net.au/news/2022-08-18/scott-morrison-secret-ministerial-roles-lack-trust-extraordinary/101343202

[12] David Speers, ‘Scott Morrison gave two reasons for secretly taking on five ministerial roles. But his lack of trust is what’s most extraordinary’, ABC News, August 18, 2022, at https://www.abc.net.au/news/2022-08-18/scott-morrison-secret-ministerial-roles-lack-trust-extraordinary/101343202

[13] ‘As it happened: Scott Morrison resists calls to resign amidst minister portfolio saga; governor-general’s role questioned by MPs’, The Age, August 17, 2022, at https://www.abc.net.au/news/2022-08-18/scott-morrison-secret-ministerial-roles-lack-trust-extraordinary/101343202

[14] Sarah Martin, ‘The cognitive dissonance of Scott Morrison’s secret ministry defence is mind-boggling’, The Guardian, August 17, 2022, at https://www.theguardian.com/australia-news/2022/aug/17/the-cognitive-dissonance-of-scott-morrisons-defence-is-mind-boggling

[15] Sarah Martin, ‘The cognitive dissonance of Scott Morrison’s secret ministry defence is mind-boggling’, The Guardian, August 17, 2022, at https://www.theguardian.com/australia-news/2022/aug/17/the-cognitive-dissonance-of-scott-morrisons-defence-is-mind-boggling

[16] Sarah Martin, ‘The cognitive dissonance of Scott Morrison’s secret ministry defence is mind-boggling’, The Guardian, August 17, 2022, at https://www.theguardian.com/australia-news/2022/aug/17/the-cognitive-dissonance-of-scott-morrisons-defence-is-mind-boggling

[17] Michelle Grattan, ‘View from The Hill: Morrison reverts to type in an unconvincing defence’, The Conversation, August 17, 2022, at https://theconversation.com/view-from-the-hill-morrison-reverts-to-type-in-an-unconvincing-defence-188911

[18] ‘As it happened: Scott Morrison resists calls to resign amidst minister portfolio saga; governor-general’s role questioned by MPs’, The Age, August 17, 2022, at https://www.theage.com.au/national/australia-news-live-fallout-continues-after-revelations-scott-morrison-swore-himself-into-five-portfolios-while-pm-20220816-p5badb.html?post=p541t7

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Published by Nelle

I am interested in writing short stories for my pleasure and my family's but although I have published four family books I will not go down that path again but still want what I write out there so I will see how this goes

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