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.

Former prime minister Scott Morrison exposed as organizing a dangerous clandestine political power grab in 2020-2021

 

On Monday 15 August 2022 Australia learned that before Scott Morrison lead his government to electoral defeat on 21 May 2022 he had made a secret power grab at ministerial level in at least five key federal portfolios.

The news came in a published edited excerpt of a soon to be released book “Plagued” by two journalists turned authors, who were to all intents and purposes quite unperturbed by the power grab and perhaps are relying to heavily on pro-Morrison sources for a timeline and explanation of events.

By Tuesday details were being fleshed out in a Prime Minister Albanese press conference, in mainstream media articles and on social media.

What the citizens of Australian learned is as follows.

Between March 2020 and May 2021 Prime Minister Morrison, already having the existing ministerial responsibility for the portfolio of Prime Minister and Cabinet and still being Minister for the Public Service, secretly became a multiple ‘co-minister’ and, as yet there is no proof offered that he did not remain a multiple ‘co-minister’ until 23 May 2022.

Morrison became portfolio ‘co-ministers’ with:

1. Greg Hunt on 14 March 2020, the then Minister for Health from 24.1.2017 to 23.5.2022;

2. Mathias Cormann on 30 March 2020, the then Minister for Finance from 28.8.2018 to 30.10.2020 and subsequently Simon Birmingham Minister for Finance from 30.10.2020 to 23.5.2022;

3. It appears that from 15 April 2021 Morrison may also have been a secret minister with some portfolio power during the period Angus Taylor was Acting Minister for Industry, Science and Technology from 19.9.2021 to 8.10.2021 and then permanent Minister for Industry, Energy and Emissions Reduction from 8.10.2021 to 23.5.2022. He was indeed a co-minister when Keith Pitt became the Minister for Resources and Water from 2.7.2021 to 23.5.2022;

4. Karen Andrews on 6 May 2021, the then Minister for Home Affairs from 30.3.2021 to 23.5.2022. On 6 May when Morrison became a 'co-minister' the Minister for Home Affairs had administrative & legal powers derived from a portfolio covering immigration, cyber security, the Australian Federal Police and the domestic intelligence agency, ASIO; and

5. Josh Frydenberg on 6 May 2021, the then Treasurer from 28.8.2018 to 23.5.2022.

Given that over the time Scott Morrison was prime minister there were three versions of a full ministry list – the first ministry on 26 August 2018, the reshuffle on 26 May 2019 and the second ministry on 8 October 2021 – it appears that other former ministers may be in the process of finding out that Morrison saw himself as ‘owning’ their ministries as well.

I refer to ministers “finding out”, because apart from Greg Hunt who knew from the very beginning, no other minister whose ministerial power was deliberately weakened by this political 'land grab' had any idea at the time that Morrison could at anytime meddle in their portfolios or countermand their decisions at will. Keith Pitt only appears to have found out after the fact, when he had a decision made as resource minister countermanded by Morrison on political grounds.

ABC News confirmed that Home Affairs Secretary Mike Pezzullo was never informed that the Prime Minister had also been sworn into the portfolio in May 2021, alongside existing minister Karen Andrews.

The former Deputy Prime Minister and National Party Leader Barnaby Joyce alleges that he had known Morrison was joint Minister for Resources with Pitt since sometime in December 2021. He also chose to remain silent on the issue.

From the outside looking in and based on an unfolding situation, it would appear that in the days or weeks before 14 March 2021 there were two original political co-conspirators, Scott Morrison and then Attorney-General Christian Porter. 

At some point before 14 March Minister for Health Greg Hunt agreed to be a ‘co-minister’, with Morrison the behind-the-scenes second health minister no-one would know about. 

An obliging and unquestioning Governor-General agreed to appoint Morrison by administrative instrument as a minister responsible for the health portfolio and later as a minister in four other portfolios. Allegedly assenting to Morrison becoming minister based solely on Morrison’s own advice as a member of and chief advisor on the Federal Executive Council and, just as obligingly failing to mention this fact to a soul. 

It would seem that the ease with which Morrison had expanded his political and legal powers in health and finance may have gone to his head. For over the next 14 months Morrison indulged his ego and political greed for power by making himself a co-minister with direct administrative power over at least another three portfolios.

Speaking on 2GB radio on Tuesday 16 August Morrison admits to giving himself ministerial power in relation to health, finance and resources portfolios but did not recall any others.

There is a strong suspicion that the range of powers Scott Morrison gave himself may be revealed as much wider than previously thought. The Advocate on 16 August 2022 reported that; An administrative arrangements order for the social services portfolio was signed by Mr Morrison and Governor-General David Hurley on June 28, 2021, on top of him being privately sworn in to other ministries.

It should be noted that a number of previous Administrative Arrangements Orders coming into effect from February 2020 onwards and co-signed by the current Governor-General and then Prime Minister Morrison, had their schedules amended by Orders in Council dated 5 March, 2 &15 April 2020 and 10 & 28 June, 2 July 2021.

Additionally, there is speculation in the media that another former Morrison Government cabinet minister (besides Hunt and Porter) had to have known in March 2020 that Morrison was planning a takeover of the health and finance portfolios.

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UPDATES

Scott Morrison secretly appointed himself to Christian Porter’s ministerial portfolio without his consent after the former Attorney-General taught him how to do it ⁦@newscomauHQ⁩ also kept him in dark about Finance Minister power grab https://t.co/aO6hhJL0is

— Samantha Maiden (@samanthamaiden) August 17, 2022

Department of the Prime Minister and Cabinet, 17 August 2022:

The instruments by which the then Prime Minister, the Hon Scott Morrison MP, was appointed to portfolios other than the Department of the Prime Minister and Cabinet during 2020 and 2021.

• Appointment of Minister of State: Scott John Morrison, the Department of Health, 14 March 2020 - PDF 251 KB

• Appointment of Minister of State: Scott John Morrison, the Department of Finance, 30 March 2020 - PDF 176 KB

• Appointment of Minister of State: Scott John Morrison, the Department of Industry, Science, Energy and Resources, 15 April 2021 - PDF 784 KB

• Appointment of Minister of State: Scott John Morrison, the Department of Home Affairs and the Department of the Treasury, 6 May 2021 - PDF 794 KB

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BACKGROUND

The Australian Online, Monday 15 August 2022:

Secret plan

By March 18, Covid-19 was spreading internationally and in the Australian community. Australia’s daily case numbers were running in triple digits. The pace of the virus was accelerating and with vastly more serious measures likely to be required, Morrison was worried that even national cabinet might not always be able to act quickly enough.

He and Hunt had been considering a drastic measure, invoking the emergency powers – the so-called trumping provisions – under the little-known section 475 of the Biosecurity Act which would empower the Governor-General to declare a “human biosecurity emergency”.

A declaration under section 475 gave Hunt as health minister exclusive and extraordinary powers. He, and only he, could personally make directives that overrode any other law and were not disallowable by parliament. He had authority to direct any citizen in the country to do something, or not do something, to prevent spread of the disease.

Morrison knew that if he asked the Governor-General to invoke section 475, he effectively would be handing Hunt control of the country. If they were going to use them, Morrison wanted protocols set up as well as a formal process to impose constraints. The protocols required the minister to provide written medical advice and advance notice of his intentions to the national security cabinet.

However, Morrison wasn’t satisfied, feeling that there needed to be more checks and balances before any single minister could wield such powers. One option was to delegate the powers to cabinet, but attorney-general Christian Porter’s advice was these powers could not be delegated and could reside only with the health minister.

Morrison then hatched a radical and until now secret plan with Porter’s approval. He would swear himself in as health minister alongside Hunt. Such a move was without precedent, let alone being done in secret, but the trio saw it as an elegant solution to the problem they were trying to solve – safeguarding against any one minister having absolute power.

Porter advised that it could be done through an administrative instrument and didn’t need appointment by the Governor-General, with no constitutional barrier to having two ministers appointed to administer the same portfolio.

“I trust you, mate,” Morrison told Hunt, “but I’m swearing myself in as health minister, too.”

It would also be useful if one of them caught Covid and became incapacitated. Hunt not only accepted the measure but welcomed it. Considering the economic measures the government was taking, and the significant fiscal implications and debt that was being incurred, Morrison also swore himself in as finance minister alongside Mathias Cormann. He wanted to ensure there were two people who had their hands on the purse strings.

This is an edited extract from Plagued by Simon Benson and Geoff Chambers, published by Pantera Press. Out Tuesday.

Scott Morrison's 16 August 2022 Facebook response to being discovered, in which he appears to argue that the risk of ministers being incapacitated by COVID-19 required their ministerial powers to be solely concentrated in his person rather than in the pool of around 30 other ministers and 17 assistant ministers:

Scott Morrison (ScoMo)

The devastating impacts of the COVID-19 pandemic and associated recession required an unprecedented policy response from our Government.

These were extraordinary times and they required extraordinary measures to respond. Our Government’s overriding objective was to save lives and livelihoods, which we achieved. To achieve this we needed to ensure continuity of government and robust administrative arrangements to deal with the unexpected in what was a period of constant uncertainty during the nation’s biggest crisis outside of wartime.

Information and advice changed daily and even hourly. Meetings with Ministers, officials and advisers were constant, as was liaison with industry and other stakeholders as we were dealing with everything from supply chain shocks to business closures, the overwhelming of the social security and hospital system and the sourcing of critical medical supplies and workforce. The prospect of civil disruption, extensive fatalities and economic collapse was real, especially in the early stages, which was occurring in other parts of the world.

The risk of Ministers becoming incapacitated, sick, hospitalised, incapable of doing their work at a critical hour or even fatality was very real. The Home Affairs Minister was struck down with COVID-19 early in the pandemic and the UK Prime Minister was on a ventilator and facing the very real prospect of dying of COVID-19.

The Parliament was suspended from sitting for a time and Cabinet and others meetings were unable to be held face to face, as occurred with businesses and the public more generally.

As Prime Minister I considered it necessary to put in place safeguards, redundancies and contingencies to ensure the continuity and effective operation of Government during this crisis period, which extended for the full period of my term.

To ensure oversight, the Government, with the support of the Opposition, established a concurrent public Senate Inquiry into the management of COVID that effectively ran for the duration of my term as Prime Minister.

In addition I took the precaution of being given authority to administer various departments of state should the need arise due to incapacity of a Minister or in the national interest. This was done in relation to departments where Ministers were vested with specific powers under their legislation that were not subject to oversight by Cabinet, including significant financial authorities.

Given the significant nature of many of these powers I considered this to be a prudent and responsible action as Prime Minister.

It is not uncommon for multiple Ministers to be sworn to administer the same Department. However, given that such additional Ministers were in a more junior position in the relevant Departments, and would not be familiar with all the details of the pandemic response, I considered it appropriate that the redundancy be put in place at a higher level within the Government and not at a more junior level.

The major Department for which this was considered was the Health Department, given the extensive powers afforded to the Minister by the Biosecurity Act. This was put in place on March 14, 2020. The Department of Finance was added on March 30, 2020.

As an added administrative precaution, as a ‘belts and braces’ approach, the Departments of Treasury and Home Affairs were added some time after in May 2021. I did not consider it was likely that it would be necessary to exercise powers in these areas, but the future was very difficult to predict during the pandemic. As events demonstrated with the resurgence of COVID-19 in the second half of 2021, we could never take certainty for granted. In hindsight these arrangements were unnecessary and until seeking advice from the Department of Prime Minister and Cabinet today, I had not recollected these arrangements having been put in place. There was a lot going on at the time.

Thankfully it was not necessary for me to trigger use of any of these powers. In the event that I would have to use such powers I would have done so disclosing the authority by which I was making such decisions. The authority was pre approved to ensure there would be no delay in being able to make decisions or take actions should the need arise.

The crisis was a highly dynamic environment and it was important to plan ahead and take what precautions could lawfully be put in place to ensure I could act, as Prime Minister, if needed.

It is important to note that throughout this time Ministers in all Departments, where I was provided with authority to act, exercised full control of their Departments and portfolios without intervention. Ministerial briefs were not copied to me as Prime Minister in a co-Minister capacity, as this was not the nature of the arrangement. These arrangements were there as a ‘break glass in case of emergency’ safeguard. I also did not wish Ministers to be second guessing themselves or for there to be the appearance to be a right of appeal or any diminishing of their authority to exercise their responsibilities, as this was not the intention of putting these arrangements in place. I simply wanted them to get on with their job, which they did admirably and I am grateful for their service.

The decision in relation to the Department of Industry, Energy and Resources was undertaken in April 2021 for separate reasons. This was the consequence of my decision to consider the issues of the PEP11 license directly. Under the legislation the decision is not taken by Cabinet, but unilaterally by a Minister with authority to administer that Department. I sought and was provided with the authority to administer matters in relation to this Department and considered this issue observing all the necessary advice and issues pertaining to the matter before making a decision, without prejudice, which I announced publicly. Once having been given the authority to consider this matter I advised the Minister of my intention to do so and proceeded to consider the matter. I retained full confidence in Minister Pitt who

I was pleased to have serve in my Ministry. I believe I made the right decision in the national interest. This was the only matter I involved myself directly with in this or any other Department.

The use of the powers by a Prime Minister to exercise authority to administer Departments has clearly caused concern. I regret this, but acted in good faith in a crisis.

I used such powers on one occasion only. I did not seek to interfere with Ministers in the conduct of their portfolio as there were no circumstances that warranted their use, except in the case of the Department of Industry, Science, Energy and Resources which I have explained.

The pandemic has been a difficult time for Australia, although we have performed better than almost any other developed country in the world. There is no guide book in these circumstances and there is much commentary that will be offered in hindsight from the comfort of relatively calmer conditions. It is not surprising that some of this commentary will have a partisan or other motive, but that’s politics. In a democracy it is a positive thing for these issues to be discussed and for experience to inform future decisions and I hope my statement will help inform that process.

I have endeavoured to set out the context and reasoning for the decisions I took as Prime Minister in a highly unusual time. I did so in good faith, seeking to exercise my responsibilities as Prime Minister which exceeded those of any other member of the Government, or Parliament. For any offence to my colleagues I apologise. I led an outstanding team who did an excellent job and provided me great service and loyalty as Ministers.