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Current Backbench Liberal MP for Cook Scott Morrison
IMAGE: James Brickwood, Financial Review, 9 November 2022 |
Bottom
line taken from Hon Virginia Bell’s
Report
of the
Inquiry into
the Appointment of the Former Prime Minister to Administer Multiple
Departments:
From
14 March
2020
then
Prime
Minister &
Liberal MP for Cook
Scott
John
Morrison
—
possibly acting
on the Pentecostal/Evangelical belief that it was a Christian’s duty to actively
bring
government under the dominion of God
—
began to
ensure
only his own
wishes,
wants & orders would be those governing the
Commonwealth of Australia.
By
15 March
2021
he
secretly controlled 5 of the
6
key government
portfolios
covering
treasury, finance, national security, federal
law enforcement, emergency management, natural
resources, energy, industry,
health,
food
production and water.
On
16 December
2021
he began to use those
new
powers.
It
was not until News
Corp
journalists Benson
& Chambers
released their post-federal election book “Plagued”
on 15 August 2022 that the Australian electorate became aware of this
secret power grab.
Inquiry
into the Appointment
of Former
Prime Minister to Administer
Multiple
Departments,
Report,
25 November 2022:
Executive
Summary
1.
On 16 August 2022, following revelations in the media a few days
earlier, the Prime Minister the Hon Anthony Albanese MP announced
that the Hon Scott Morrison MP had been appointed to administer five
departments of State in addition to the Department of the Prime
Minister and Cabinet (“PM&C”) during his term as Prime
Minister. Mr Morrison had been appointed to administer the Department
of Health on 14 March 2020, the Department of Finance on 30 March
2020, the Department of Industry, Science, Energy and Resources
(“DISER”) on 15 April 2021, and the Departments of the Treasury
and Home Affairs on 6 May 2021. In other words, Mr Morrison had been
appointed to administer six of the 14 departments of State. These
appointments had not previously been disclosed to the Parliament or
to the public.
2.
I was appointed to conduct an Inquiry into the appointments. The
Terms of Reference require the Inquiry to examine and report on: the
facts and circumstances surrounding the appointments; the
implications arising from the appointments; and the practices and
processes that apply to the appointment of ministers to administer
departments under section 64 of the Constitution and directions that
ministers hold certain offices under section 65 of the Constitution.
I am also asked to recommend any procedural or legislative changes
which would provide greater transparency and accountability. I
summarise my key findings below. A list of recommendations is at
pages 7 and 8.
3.
The Terms of Reference require me to have regard to the
Solicitor-General’s Opinion dated 22 August 2022 (SG No 12 of
2022). In that Opinion, the Solicitor-General concluded that the
appointment of Mr Morrison to administer DISER was constitutionally
valid. The reasoning applies with equal force to each of the
appointments. I approach my task upon acceptance of the
Solicitor-General’s analysis and conclusions.
Facts
and circumstances surrounding the appointments
4.
The appointments to administer the Departments of Health and Finance
in March 2020 were made under the extreme pressure of responding to
the onset of the COVID-19 pandemic. The then Attorney-General, the
Hon Christian Porter MP, proposed Mr Morrison’s appointment to
administer the Department of Health as a check on the exercise of the
Health Minister’s extraordinary powers that are enlivened by the
declaration of a “human biosecurity emergency” under the
Biosecurity Act 2015 (Cth). Other senior ministers recalled that the
justification for the appointment was a concern that, if the Hon Greg
Hunt MP, the then Minister for Health, should become incapacitated, a
senior minister should be seen to be responsible for the exercise of
these powers. Mr Morrison’s reason for taking the appointment
appears to have been this latter concern.
5.
The context for the appointment to administer the Department of
Finance included the financial measures enacted in March 2020 to
address the economic impact of the COVID-19 pandemic, in particular,
the $2 billion Advance to the Finance Minister. The Department of
Finance had only one Cabinet Minister administering it. Mr Morrison
advised the Governor-General, His Excellency General the Honourable
David Hurley AC DSC (Rtd), that the appointment would enable him to
exercise the Finance Minister’s significant powers were Senator the
Hon Mathias Cormann, the then Minister for Finance, unavailable to do
so. Mr Morrison also wished to have the capacity to make decisions
about financial support for the States and Territories in “real
time” in the context of meetings of the National Cabinet.
6.
The appointments, however, were unnecessary. If Mr Hunt or Mr Cormann
had become incapacitated and it was desired to have a senior minister
exercise the Health Minister’s expansive human biosecurity
emergency powers or the Finance Minister’s significant financial
authorities, Mr Morrison could have been authorised to act as
Minister for Health or Minister for Finance in a matter of minutes.
7.
The appointments to DISER, the Department of the Treasury and the
Department of Home Affairs are in a different category to the
appointments to the Departments of Health and Finance. These
appointments had little if any connection to the pandemic. Rather, Mr
Morrison was appointed to administer these departments to give
himself the capacity to exercise particular statutory powers. In
addition to these three departments, the Prime Minister’s Office
(“PMO”) also instructed PM&C to prepare a brief for his
appointment to administer the Department of Agriculture, Water and
the Environment (“DAWE”). Subsequently, Mr Morrison
decided not to proceed with the appointment to administer DAWE.
8.
Mr Morrison only exercised a statutory power that he enjoyed by
reason of the appointments on one occasion. This was the decision to
refuse the applications concerning Petroleum Export Permit 11 (known
as PEP-11). Mr Morrison had himself
appointed to administer DISER to enable him to decide the PEP-11
applications. In relation to the other two appointments, Mr
Morrison, through his legal representative, informed me that he
“considered it necessary, in the national interest, to lawfully
ensure that there would be no gap in the exercise of [powers related
to ongoing matters of national security] if required, so as to
guarantee the continuity and effective operation of Government”.
This concern is not easy to
understand. There were ministers, other than the then Treasurer and
Minister for Home Affairs, who were appointed to administer those
departments. In the event either senior minister were unavailable,
there would be no “gap” in the exercise of their ministerial
powers. And, as noted, Mr Morrison could readily have been appointed
as acting Minister for Home Affairs or acting Treasurer in the event
that either Minister was incapacitated.
9.
The then Secretary of PM&C, Mr Phil Gaetjens, viewed the
appointments to the Departments of Health and Finance as an
appropriate safeguard should Mr Hunt or Mr Cormann have become
incapacitated. In relation to the
other three appointments, the covering briefs prepared by PM&C
noted that it was “somewhat unusual” for the Prime Minister to be
appointed to administer a department other than PM&C. In relation
to the appointment to administer DISER, Mr Gaetjens considered that
Mr Morrison had been made aware of the risk of successful legal
challenge, in light of his public statements, before he determined
the PEP-11 applications. Mr Gaetjens did not seek to speak
with Mr Morrison and to advise him in stronger terms than those used
in the brief against being appointed to administer DISER in order to
make the PEP-11 decision.
10.
The proposal to appoint Mr Morrison
to administer the Department of Health was known to some senior
ministers (including Mr Hunt), as well as some senior public servants
(including the then Chief Medical Officer and the Secretary of the
Department of Home Affairs). The appointment was not disclosed to the
Department of Health. The fact of
the appointments to administer the Departments of Finance, the
Treasury and Home Affairs was not disclosed to anyone other than some
members of the PMO and officers in PM&C involved in arranging the
appointments. In particular, the appointments were not disclosed to
the other ministers appointed to administer those departments or the
departments themselves. The former Minister for Resources, the
Hon Keith Pitt MP, learned of the appointment to administer DISER on
21 April 2021, however it was not until December 2021 that DISER
itself was formally advised of the appointment.
11.
In a public statement delivered on 17 August 2022, Mr Morrison
justified the secrecy surrounding the appointments on two grounds. In
relation to the failure to inform his ministers, Mr Morrison said
that he “did not wish Ministers to be second guessing themselves or
for there to be the appearance [of] a right of appeal or any
diminishing of their authority to exercise their responsibilities”.
In relation to the failure to inform the public, Mr Morrison said
that “these were emergency, effectively reserve powers”, and
there was a risk that the disclosure of the appointments “could be
misinterpreted and misunderstood”.
12.
However, in the context of my Inquiry, Mr Morrison informed me, again
through his legal representative, that “neither [he] nor his office
instructed PM&C not to gazette the appointments”, and that he
“assumed the usual practice would apply following the relevant
Ministerial appointments”. He subsequently explained that he
understood the “usual practice” to be that the appointments would
be gazetted. This understanding was not consistent with what I was
told by PM&C, which is that the announcement of ministerial
appointments is the prerogative of the Prime Minister.
13.
It is difficult to reconcile Mr
Morrison’s choice not to inform his ministers of the appointments
out of his wish not to be thought to be second guessing them, with
his belief that the appointments had been notified in the
Commonwealth Gazette (the “Gazette”). While few members of
the public may read the Gazette, any idea that the gazettal of the
Prime Minister’s appointment to administer the Treasury (or any of
the other appointments) would not be picked up and quickly circulated
within the public service and the Parliament strikes me as improbable
in the extreme. One might have expected Mr Morrison to inform the
affected ministers of the appointments had it been his belief at the
time that they were being notified in the Gazette. Finally,
there is the circumstance that Mr Morrison was repeatedly pressed at
his press conference on 17 August 2022 about his failure not only to
inform his ministers but also to inform the public of the
appointments. The omission to state that he had acted at all times on
the assumption that each appointment had been notified to the public
in the Gazette is striking.
14.
While it is troubling that by the time of the 2021 appointments, Mr
Gaetjens did not take up the issue of the secrecy surrounding them
with Mr Morrison and firmly argue for their disclosure, the
responsibility for that secrecy must reside with Mr Morrison.
15.
Each of the appointments was made by the Governor-General acting on
the advice of the Prime Minister, consistently with well settled
constitutional convention. Some commentators argued that the
Governor-General should have warned Mr Morrison that the appointments
were unorthodox and encouraged him to make them public. I consider
the criticism of the Governor-General to be unwarranted. Until
recently, it was not the practice for Government House to arrange for
notification in the Gazette of the appointment of an existing
minister to administer a department of State when the appointment was
made “on the papers” and not in association with a public
swearing-in ceremony.
Implications
of the appointments
16.
Given the appointments were not disclosed to the Parliament or to the
public, and that Mr Morrison did not exercise any of the powers he
enjoyed by reason of his appointments apart from making the PEP-11
decision, the implications of the appointments are limited.
17.
Mr Morrison does not appear to have attached any significance to the
fact that, from the time of its making, each appointment operated in
law to charge him with responsibility for the administration of the
whole department. There was no delineation of responsibilities
between Mr Morrison and the other minister or ministers appointed to
administer the department. In the absence of such delineation, there
was a risk of conflict had Mr Morrison decided to exercise a
statutory power inconsistently with the exercise of the power by
another minister administering the department. The
2021 appointments were not taken with a view to Mr Morrison having
any active part in the administration of the department but rather to
give Mr Morrison the capacity to exercise particular statutory power
should the minister charged with responsibility for the exercise of
that power propose to do so in a manner with which Mr Morrison
disagreed, or fail to make a decision that Mr Morrison wanted to be
made. In terms of the functioning of the departments this was
as Dr Gordon de Brouwer PSM, Secretary for Public Sector Reform,
observes “extremely irregular”.
18.
As long as the appointments remained secret and Mr Morrison elected
not to exercise his powers as the minister administering a
department, it is not apparent that there was any impact on the
structure of the ministry. Nevertheless, recourse to being appointed
to administer multiple departments seems an exorbitant means of
addressing Mr Morrison’s concern about his ministers’ exercise of
statutory power in cases that were not subject to Cabinet oversight.
Ultimately, he had the power to dismiss a minister if he considered
the minister might exercise a power in a way that he, Mr Morrison,
considered not to be conducive to the national interest.
19.
Given that the Parliament was not
informed of any of the appointments, it was unable to hold Mr
Morrison to account in his capacity as minister administering any of
these five departments. As the Solicitor-General concluded, the
principles of responsible government were “fundamentally
undermined” because Mr Morrison was not “responsible” to the
Parliament, and through the Parliament to the electors, for the
departments he was appointed to administer.
20.
Finally, the lack of disclosure of the appointments to the public was
apt to undermine public confidence in government. Once the
appointments became known, the secrecy with which they had been
surrounded was corrosive of trust in government.
Process
of appointments under sections 64 and 65 of the Constitution
21.
Appointments of ministers to administer departments of State under
section 64 of the Constitution, and directions that a minister hold a
particular office under section 65 of the Constitution, are made by
the Governor-General on the advice of the Prime Minister.
22.
Since Federation, Government House has arranged for notification in
the Gazette of the names of the ministers who have been “sworn in”
as members of a ministry at a public ceremony. In recent years, the
notification in the Gazette has included the name of the minister and
the office the minister has been directed to hold. While the office
may serve to indicate the department the minister has been appointed
to administer, the fact of the appointment to administer a department
of State has not formed part of the notice. Following the “swearing
in” ceremony, the Prime Minister will often issue a media release
containing the names and offices of the ministers.
23.
In some cases, where an existing minister is to be appointed to
administer an additional department of State, the appointment will be
made “on the papers”. Publication of the appointment in such
cases is dependent on the issue of a media release by the Prime
Minister.
24.
Following the disclosure of Mr Morrison’s appointment to administer
additional departments of State, at the direction of the Prime
Minister, PM&C and the Office of the Official Secretary to the
Governor-General have agreed on a new protocol for the publication in
the Gazette of all ministerial appointments and directions to hold
office.
[my yellow and orange highlighting]
List
of Recommendations
Recommendation
1
Legislation
should be enacted to require publication in the Commonwealth Gazette
or in a notifiable instrument registered on the Federal Register of
Legislation as soon as reasonably practicable following the fact of:
i.
the swearing of an Executive Councillor under section 62 of the
Constitution;
ii.
the appointment of an officer to administer a department of State
under section 64 of the Constitution;
iii.
the direction to a Minister of State to hold an office under section
65 of the Constitution; and
iv.
the revocation of membership of the Federal Executive Council, an
appointment to administer a department, and a direction to hold an
office, when effected by an instrument executed by the
Governor-General.
The
notice or notifiable instrument should include the name of the person
and the date that he or she was sworn, appointed and/or directed, or
the date that such membership, appointment and/or direction was
revoked. It may also be convenient for a copy of the instrument to be
included in the notification.
Recommendation
2
The
authorisation of an acting minister for a period of two weeks or more
should be published as soon as reasonably practicable in the
Commonwealth Gazette or in a notifiable instrument on the Federal
Register of Legislation.
Recommendation
3
A
list of all acting arrangements should be published periodically on
the Department of the Prime Minister and Cabinet's or each
department's website.
Recommendation
4
A
document identifying:
i.
the ministers appointed to administer each department of State;
ii.
the offices the ministers are directed to hold; and
iii.in
the case of two or more ministers administering the one department,
an outline of the division of responsibilities between the ministers
should
be published on the Department of the Prime Minister and Cabinet's
website.
Recommendation
5
A
website concerning ministerial appointments should be established
which contains explanatory materials and current and past records to
enable the public to readily ascertain which minister is responsible
for which particular matters.
Recommendation
6
All
departments should publish a list of the ministers appointed to
administer them on their website, and include in their annual report
the name of all ministers appointed to administer the department in
the reporting period.
Note:
** tinpot dictator - term of contempt - an autocratic ruler with little political credibility, typically having delusions of grandeur. [Wiktionary, May 2016]
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