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.
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| 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.
