How for a total of 1,609 days Scott John Morrison hid his ambition to be a 'president' rather than a humble Prime Minister of Australia

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.

A new Australian Federal Government super ministry capable of deploying armed soldiers on our streets

“The first question to ask yourself is this: does handing Dutton that power sound like a good idea?” [journalist Katherine Murphy, The Guardian, 18 July 2017]

A new Australian Federal Government super agency capable of deploying armed soldiers on our streets? With a former Queensland police officer of no particular merit as its head?

What could possibly go wrong with a rigid, far-right, professed ‘Christian’ property millionaire having oversight of a super portfolio which would reportedly bring together the Australian Security Intelligence Organisation (ASIO), the Australian Federal Police (AFP) Australian Border Force, Australian Criminal Intelligence Commission and AUSTRAC along with a database on ordinary citizens, ‘intellectuals’ and perfectly legal organisations, going back literally generations?

How long will it take before any industrial action or protest event would be quickly labelled as terrafret and armed soldiers sent to disperse people exercising their democratic right?

Australia’s been down that painful path before during the last 229 years and been the worse for it.

Turnbull at Holsworthy Barracks, Forbes Advocate,17 July 2017

“The measures I am announcing today will ensure that the ADF is more readily available to respond to terrorism incidents, providing state and territory police with the extra support to call on when they need it.”  

[Prime Minster Malcolm Turnbull, media release, Holsworthy NSW,17 July 2017]

The Sydney Morning Herald, 18 July 2017:

Malcolm Turnbull has confirmed a dramatic shake-up of Australia's security, police and intelligence agencies that will put Immigration Minister, Peter Dutton, in charge of a sprawling new Home Affairs security portfolio.

The department of Home Affairs will bring together domestic spy agency ASIO, the Australian Federal Police, the Australian Border Force, the Australian Criminal Intelligence Commission, AUSTRAC and the office of transport security and will be put together over the next year.

And Mr Turnbull has also announced the government would, in response to the 

L'Estrange review of Australia's intelligence agencies, establish an Office of National Intelligence and that the Australian Signals Directorate will also be established as an independent statutory authority. 

The new Office of National Intelligence will co-ordinate intelligence policy and is in line with agencies in Australia's "Five Eyes" intelligence partners in the US, Britain, Canada and New Zealand…..

The changes are to be finalised by June 30, 2018 - subject to approval of the National Security Committee of Cabinet -  with Mr Dutton to work with Senator Brandis in bedding down the changes.

Senator Brandis will lose responsibility for ASIO under the changes but, crucially, retain sign-off power on warrants for intelligence agency. 

Mr Turnbull said the Attorney-General's oversight of Australia's domestic security and law enforcement agencies would be strengthened, with the Inspector-General of Intelligence and Security and the independent national security legislation monitor moving into his portfolio. 

The Prime Minister said Australia needed these reforms "not because the system is broken, but because our security environment is evolving quickly…..

The Sydney Morning Herald, 17 July 2017:

However that L'Estrange review – part of a routine reassessment of national security arrangements – is understood not to specifically recommend such a super-portfolio.

Mr Turnbull has been dropping strong hints lately that he is inclined to make a significant change, rejecting what he's branded a "set and forget" policy on national security and warning that Australia must keep up with an evolving set of threats from terrorism to foreign political influence.

Security and intelligence agencies themselves are also believed to have concerns about such a change, while some former intelligence heads have publicly said they do not see any need for change.

However, a well-placed source in the intelligence community said a Home Affairs office - as opposed to a US-style Department of Homeland Security - was the preferred options for police and intelligence agencies.

That was because a Home Affairs department would potentially be broader, including agencies such as the Computer Emergency Response Team, the Australian Cyber Security Centre, Crimtrac, the Australian Criminal Intelligence Commission and the new Critical Infrastructure Centre, rather than just police and intelligence agencies.

The Guardian, 18 July 2017:

Peter Jennings, the executive director of the Australian Strategic Policy Institute, put it well on Tuesday when he said any “grit” in the Dutton/Brandis relationship could be problematic for intelligence operations, which is obviously problematic for all of us, given we rely on the efficiency of the counter-terrorism framework to keep us safe.

So we’d better hope for the best, to put it mildly.

We’d also better hope it’s a good use of the time of our intelligence services and public servants to nut out how the Big Idea is going to work in practice, which will be a reasonably complex task, at a time when these folks already have a serious day job.

Recapping that specific day job again: trying to disrupt national security threats, in a complex environment. Pretty busy and important day job, that one.

It’s cartoonish to say this is all about the prime minister rewarding old mate Dutton, on the basis you keep your friends close, and your (potential) enemies closer.

Nothing is ever that simple outside a House of Cards storyboard– although it remains an irrefutable fact that Dutton wanted this to happen, and if Dutton really wanted it to happen, it would have been difficult for Turnbull, in his current position, to say no.

The Australian, 19 July 2017:         

The pressure points lie in the risk calculations that link intelligence to response. In a liberal democracy, we rightly demand high certainty of the intention to carry out an act of violence before we are comfortable with our security services pre-emptively taking someone off the streets. Usually when an attack happens, here or in the US or Europe, it’s because the calibration of risk hasn’t worked. It’s not because security services weren’t concerned about an individual’s beliefs and actions or couldn’t find him.

For those of us without access to national security data, the evidence suggests that Australia does these important risk calculations relatively well. Our list of foiled terrorist attacks is quite a bit longer than the list of attacks. The reason for this is the national security structures we have evolved: the combination of separate national security agencies, each with highly developed specialist capabilities and slightly different cultures and perspectives, working in close, 24/7 collaboration.

When calculating risk, separation and diversity are a strength because they build contestation, careful deliberation and stress testing into the system. Britain, the US, France and Belgium have chosen more centralised structures, and the evidence is that their systems do not work as well as ours. Bringing our highly effective agencies into a super-department cannot help but disrupt their inner structures and cultures. Such enterprises inevitably lose sight of the goal — keeping Australians safe — as they become driven by the desire for efficiencies and cultural homogenisation, and the urge for bureaucratic tidiness. Look no further than the creation of the Department of Immigration and Border Protection, a process that has consumed enormous amounts of resources in reconciling two incompatible cultures, with no apparent benefits and a list of embarrassing blunders.

Creating one security super-department places a major imperative on the government to get everything right, first time. Separate but closely collaborating security agencies create a powerful check against underperformance: a struggling agency or a leader who’s not up to it are spotted and called out quickly. But underperformance in a federation-style conglomerate is not so easy to see and to call out. And in the meantime, it’s the safety of Australians that will be the price for underperformance.

If the Turnbull government were serious about national security, it would not engage in evidence-free experimentation with our national security. It should instead be building on what’s working well and making it even stronger. We need better co-ordination and cross agency connectivity, not big-bang organisational redesign.

We should be getting these sorts of issues right in a system that is working, rather than indulging in the risk-riddled gesture politics of a grand restructure.

Michael Wesley is professor of international affairs and dean of the College of Asia and the Pacific at the Australian National University.