"Full of shit and full of himself, Scooter has left the building. His greatest contribution to Australian governance is his departure from it."
["Grumpy Geezer" writing about Scott Morrison's final departure from federal parliament 21 months after he led his government to defeat in May 2022 general election, The Australian Independent Media Network 28.02.24]
In which the Liberal MP for Cook and former Australian Minister Scott John Morrison decides that social security law and in particular the Social Security (Administration) Act 1999 is open to interpretation, incorrectly cites the numbering of sections and subsection of this Act and assumes that a degree in applied economic geography gained in the 1980s allows him sufficient understanding of law to school a Royal Commissioner....
ROYAL COMMISSION INTO THE ROBODEBT SCHEME, official transcript, 14.12.2022, P.1816-P.1819, excerpt:
THE HON. SCOTT MORRISON MP: Because the advice that we received was there had been overpayment to the extent of around 3.6 per cent of the annual payments.
COMMISSIONER: I'm asking - you said you were familiar with the Act. I'm just wondering what you identified as the provision which would entitle you to ask people who hadn't been on about benefit for some period questions -
THE HON. SCOTT MORRISON MP: Well, the Department has - under the Act has an ability to raise debts. I don't think there's any dispute about that.
COMMISSIONER: That's not the question. On what basis were they to be asked for information using this online system as to their income?
THE HON. SCOTT MORRISON MP: Because -
COMMISSIONER: Because the idea was that they would be asked to confirm what the ATO said.
THE HON. SCOTT MORRISON MP: Well, they were asked to clarify what their income was at the time based on the fact that there was an identified irregularity between what their annual income was. And the process was built to seek to engage - this is my understanding.
COMMISSIONER: Sure.
THE HON. SCOTT MORRISON MP: The great frustration, as was explained to me, was the Department of Human Services had in engaging with individuals.
COMMISSIONER: Alright. Now, look, that's not my question. You said you were familiar with the Act. I'm asking you what you understood to be the legal basis for understanding how someone who may not have been on benefit for six months or three years or whatever to confirm or deny ATO data. Did you -
THE HON. SCOTT MORRISON MP: Because the Department, under the Act, has an ability to raise debts in relation to previous overpayments.
COMMISSIONER: That's a different issue from what they can ask people to do, you will appreciate.
THE HON. SCOTT MORRISON MP: Well, no, I would say that in relation to the identification of a debt, then it's not unreasonable for the Secretary to seek information as to whether they were kept appraised of the beneficiary's income at the time.
COMMISSIONER: It mightn't be unreasonable, but is it legal?
THE HON. SCOTT MORRISON MP: Yes, it is.
COMMISSIONER: Okay. And pursuant to what, in your understanding?
THE HON. SCOTT MORRISON MP: Well, under section 63, the Secretary may require a person to attend the Department.
COMMISSIONER: I'm sorry to do this to you, Mr Greggery.
THE HON. SCOTT MORRISON MP: And under section 192, they have the power to obtain information.
COMMISSIONER: Mr Morrison, this is your reading of the Act, or you had some advice about this?
THE HON. SCOTT MORRISON MP: Well, it's my plain English understanding of it.
COMMISSIONER: I see. Alright. Now, section 63 applies to a person who is receiving or has made a claim for social security payment, you appreciate?
THE HON. SCOTT MORRISON MP: Yes.
COMMISSIONER: Not somebody who in the past has received it?
THE HON. SCOTT MORRISON MP: Well, that is a matter open to interpretation.
COMMISSIONER: Well, yes. Section -
THE HON. SCOTT MORRISON MP: I think it is 65A.
COMMISSIONER: 65A?
THE HON. SCOTT MORRISON MP: Is that the section?
COMMISSIONER: Have you got them there with you?
THE HON. SCOTT MORRISON MP: No.
COMMISSIONER: Alright. So - are you doing this from memory, or have you got a record of some sort?
THE HON. SCOTT MORRISON MP: I've just noted the sections.
COMMISSIONER: Okay. You see, the position in relation to somebody who has been on benefit in the past but is no longer, is that you can go back 13 weeks under section 69 - 13 weeks prior. And that was not going to be this position, was it?
THE HON. SCOTT MORRISON MP: No. And in relation to the matters that were raised in the Executive Minute, they were non-specific as to what issues required legislative change or policy change. There's - generally there may be a need to do that. So -
COMMISSIONER: But you seem to have been quite familiar with the legislation. So why were you not interested in what legislative change was required? Because you must have wondered, didn't you, about the power to do these things?
THE HON. SCOTT MORRISON MP: Well, not at that point because it was still a proposal under development. Now, had it reached a point where it said that legislation was required, then I would have expected to see all of that, of course, and then would have made judgments about whether that would have been proceeded with. And in all likelihood, then I suspect it would not have.
COMMISSIONER: Look, if you were so familiar with the Act, you ought to have been concerned about whether the Act was being complied with in the development of this proposal to the New Policy Proposal point. How is that you were content to just see "no legislation required" and leave it at that?
THE HON. SCOTT MORRISON MP: Because, Commissioner, that is how the Cabinet process works. I had been a member of Cabinet for a long time. And the way the Cabinet process works is it has the in-built disciplines across The Public Service to fully interrogate these matters to enable what is put forward to Ministers, who are dealing with multiple submissions - in this submission alone, there were 51 New Policy Proposals.
COMMISSIONER: Yes.
THE HON. SCOTT MORRISON MP: Multiple submissions. And it is part of the process for these matters to be interrogated. Now, in the Executive Minute I received, it said - it noted there are issues. That is not uncommon. I have seen that many times in the early stages.
COMMISSIONER: And then that vanished. So why were you content with that? That vanished. You were familiar with the Act. Why didn't you want to know how it was that legislative change wouldn't be required for this proposal to go back some years?
THE HON. SCOTT MORRISON MP: Because I was satisfied that the Department had done their job. I had great respect for the Department and for their professionalism and for their knowledge of these issues, and - and I would never have conceived that had there been legal advice suggesting this was unlawful - it had never entered my imagination that that would not be raised with Ministers.
COMMISSIONER: Okay. But you have a Minute that says legislative change is required, and it's your own Department that's saying that. Then you get a New Policy Proposal that says legislative change is not required. Why don't you ask your own Department, "So how does that happen?”
THE HON. SCOTT MORRISON MP: Because I didn't see it as necessary, because they had - they had affirmed it so strongly and that I had great faith in the Department to work through the matters that they were working through…...
NOTES
1) Mr. Morrison refers the Commissioner to "sec 63, the Secretary may require a person to attend the Department" then narrows it down further to "I think it is 65A". There is no 65A in the Act. There is a "61A Deduction at request of recipient--other payments" provisions, "63A Proof of life certificate" provisions and "66A General requirement to inform of a change of circumstances etc." provisions. Perhaps Mr. Morrison meant to cite "66A". However that section does not deal with persons who are no longer receiving benefits and it was his understanding of the time limit provisions in "SECT 69 Person who has received a social security payment or who has held a concession card" that the Commissioner was querying.
2) Despite details of the 11 June 2021 judgment of the Federal Court of Australia found in Prygodicz v Commonwealth of Australia (No 2) - Summary — "In the course of the proceeding the Commonwealth admitted that it did not have a proper legal basis to raise, demand or recover asserted debts which were based on income averaging from ATO data. The evidence shows that the Commonwealth unlawfully asserted such debts, totalling at least $1.763 billion against approximately 433,000 Australians. Then, including through private debt collection agencies, the Commonwealth pursued people to repay these wrongly asserted debts, and recovered approximately $751 million from about 381,000 of them." — Mr. Morrison insisted to the Commissioner that the federal government's actions were legal.
Erratum:
This morning. Wednesday 30 November 2022, Trump-lite is to get some of the comeuppance he deserves.....
Go to House of Representatives live at:
https://www.aph.gov.au/Watch_Read_Listen
30/11/2022 9:00AM - 8:00PM AEDT
The censure motion will be put to the Parliament by Leader of the House, Tony Burke, MP for Watson, Minister for Employment and workplace Relations, Minister for the Arts.
Note:
BACKGROUND
ABC News, 28 November 2022:
The federal government will move a censure motion against former prime minister Scott Morrison over his decision to secretly appoint himself to a number of extra ministries.
Prime Minister Anthony Albanese announced today that cabinet had agreed to move the motion this week, the final sitting week for the year.
As Labor has a majority in the House of Representatives, the motion will pass.
Mr Morrison secretly appointed himself to administer several ministries throughout the COVID-19 pandemic, including to the treasury and home affairs portfolios.
Late last week, a report into his actions found they were "corrosive" to trust in government.
Mr Albanese said cabinet had agreed to implement all six recommendations from the report.
"We will introduce legislation later this week to make sure that this can never, ever happen again," he said.
"And this week, as well, the house will be moving a censure motion [against] the member for Cook as a result of the findings of Virginia Bell and the inquiry.
"This is about accountability of our democratic system, and whether the parliament was functioning properly, and about the relationship between the prime minister and the people of Australia, who expect [elected officials] to be held to account through our parliamentary processes."
One question remains: What was Morrison thinking?
Bell's report shreds any last remnants of credibility the former prime minister might have in regards to his disdain for proper process and in the way he treated his colleagues and the public.
Censure motions allow MPs to express their disapproval of their colleagues but do not have any direct legal consequences.
They are uncommon and it is very rare for a former prime minister to face one…..
Office of Prime Minister and Cabinet, 23 August 2022:
Solicitor-General’s opinion
23 August 2022
On 22 August 2022, the Prime Minister received the Solicitor-General’s opinion (SG No 12 of 2022) – In the matter of the validity of the appointment of Mr Morrison to administer the Department of Industry, Science, Energy and Resources PDF 945KB.
Only the validity of one Appointment of a Minister of State by the Governor-General was considered in the Solicitor-General’s investigation – that of then Australian Prime Minister Scott John Morrison to administer the Dept. of Industry, Science, Energy and Resources (DISER) from 15 April 2021 onwards.
 |
| IMAGE: pmc.gov.au |
IN THE MATTER OF THE VALIDITY OF THE APPOINTMENT OF MR MORRISON TO ADMINISTER THE DEPARTMENT OF INDUSTRY, SCIENCE, ENERGY AND RESOURCES
EXCERPT ONE
1. On 12 April 2021, the former Prime Minister, the Hon Scott Morrison MP, wrote to the Governor-General of the Commonwealth of Australia (the Governor-General) to recommend that the Governor-General “appoint me, as Prime Minister, to administer the Department of Industry, Science, Energy and Resources” (DISER). Mr Morrison advised the Governor-General that this appointment would allow him “to be the responsible Minister for matters within that Portfolio, if and when required”.
2. Mr Morrison enclosed with his letter a document headed “Appointment of Minister of State”, with space for the Governor-General’s signature.
EXCERPT TWO
29. While I consider that Mr Morrison’s appointment to administer DISER was valid, that is not to say that the absence of any notification of that appointment to the Parliament, the public, the other Ministers administering DISER or DISER itself was consistent with the principle of responsible government that is inherent in Ch II of the Constitution. In my opinion, it was not.
(i) Responsible government
30. The provisions of Chapter II are sparse. Nevertheless, the High Court has long recognised that they provide for a system of responsible government – meaning a “system by which the executive is responsible to the legislature and, through it, to the electorate”. Indeed, responsible government has been recognised as a “central feature of the Australian constitutional system”. As a majority of the High Court put it in the Engineers Case, the Constitution is “permeated through and through with the spirit of … the institution of responsible government”.
EXCERPT THREE
(iii) Recent change in practice concerning Ministry lists
42. Apparently since Mr Morrison became Prime Minister in August 2018 (and certainly since no later than 25 January 2019), it has not been possible to infer from the Ministry list that a Minister has been appointed to administer only such departments as fall within the portfolios against which that Minister’s name appears. That follows because, since that time, the footer to the Ministry list has denied the legitimacy of any such inference, by expressly stating that Ministers “may also be sworn to administer other portfolios in which they are not listed”. 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. 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 by 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.
43. The result of the analysis above is that there was no way the public could discern from the Ministry list, or anywhere else, that Mr Morrison had been appointed to administer either DISER or any of the other four departments that he was appointed to administer between March 2020 and May 2021. There was likewise no way of knowing whether any other Ministers had also been appointed to administer additional departments without that being mentioned in the Ministry list.
(iv) Implications for responsible government
44. The capacity of the public and the Parliament to ascertain which Ministers have been appointed to administer which departments is critical to the proper functioning of responsible government, because it is those appointments, when read together with the AAO, that determine the matters for which a Minister is legally and politically responsible.
45. The pathway to that conclusion is fairly technical. It is the result of reading the AAO together with the Acts Interpretation Act 1901 (Cth). The AAO provides that a Minister who has been appointed to administer a department is responsible for administering the legislation listed in the Schedule to the AAO relating to that department. The Acts Interpretation Act 1901 (Cth) then provides that references to “the Minister” in legislation are to be interpreted as a reference to “the Minister, or any of the Ministers, administering the provision”. The result is that the Ministers who are entitled to exercise statutory powers under any Act of the Commonwealth Parliament cannot be identified without first identifying from the AAO which department administers that Act, and then identifying the Ministers who have been appointed to administer that department.
46. 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. Nor can they hold the correct Ministers accountable for any other actions, or inactions, of departments. The undermining of responsible government therefore does not depend on the extent to which Mr Morrison exercised powers under legislation administered by DISER, because 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.
47. Separately from the problem of holding Ministers to account, if multiple Ministers have been appointed to administer a single department, those Ministers (or the Prime Minister) are responsible for working out the division of responsibilities between themselves. However, if one Minister does not know that another Minister has been appointed to administer their department, that obviously cannot occur.
48. Finally, an appointment under s 64 of the Constitution is an appointment to “administer” a department. Plainly, however, a department cannot, in practice, be administered by a person whose appointment has not been revealed to the department itself. Failure to inform at least the Secretary of the department of the appointment therefore defeats the purpose of the appointment. It also prevents the department from taking appropriate steps to support and advise that Minister if the Minister decides to exercise powers under any legislation that is administered by that department (unless the appointment is disclosed at that time, as appears to have occurred with respect to Mr Morrison’s appointment to administer DISER). An unpublicised appointment to administer a department therefore fundamentally undermines not just the proper functioning of responsible government, but also the relationship between the Ministry and the public service.
[my yellow highlighting throughout the excerpts]
Prime Minister Anthony Albanese on 23 August 2022 announcing the result of the Inquiry and the need to establish a second inquiry:
ABC News, 23 August 2022, on the subject of the mechanics of establishing the first of five appointments of Scott Morrison to administer a department. In this case the federal Dept. of Health, a portfolio of the then Minister for Health Greg Hunt:
A three to four-page protocol was drafted for approval by the National Security Committee (NSC) of cabinet, which comprised Morrison, then-deputy PM Michael McCormack, Hunt, Peter Dutton (Home Affairs), Mathias Cormann (Finance), Marise Payne (Foreign Affairs) and Linda Reynolds (Defence).
And on March 14, the Governor-General signed an administrative instrument that appointed Scott John Morrison to administer the Department of Health.
Four days later — March 18, 2020 — a "human biosecurity emergency" was declared under the Biosecurity Act, giving health minister Greg Hunt sweeping, plenary powers.
Only members of the NSC — and the Governor-General — knew that Morrison also had that authority, which amounted to effective power of martial law.
