16 Aug 2022

Scott Morrison's secret ministerial appointments likely legal, experts say

12:00 pm on 16 August 2022

By Claudia Long and Nicole Hegarty for the ABC

Former prime minister Scott Morrison's secret ministerial appointments raise questions about whether his actions will fall under the scope of the promised federal integrity body.

Prime Minister Anthony Albanese is expected to provide an update today after receiving briefings from the Department of Prime Minister and Cabinet, following revelations Morrison secretly appointed himself as joint minister in the health, finance and resources portfolios during his term of government.

Australia's Prime Minister Scott Morrison attends a press conference at Parliament House in Canberra on April 10, 2022. - Australian Prime Minister Scott Morrison on April 10 called federal elections for May 21, launching a come-from-behind battle to stay in power after three years rocked by floods, bushfires and the Covid-19 pandemic. (Photo by AFP)

Scott Morrison's secret appointments go to "the core elements of trust, accountability and transparency", an independent MP says. Photo: AFP

The department has sought advice from the solicitor-general.

Speaking to ABC Radio, Albanese gave an early indication he would seek to close the loophole that enabled Morrison to appoint himself to the roles.

"I think that is what we need to examine," he said.

"What we need here is a pursuit of the truth ... but then also we will need some recommendations potentially of how this can be avoided in the future, because this really does undermine our democracy."

He also hinted that there could be more ministries that Morrison secretly appointed himself to, ahead of a second briefing from his department this morning.

'Who was in charge?'

Independent Victorian crossbencher Helen Haines, a key backer of a federal integrity commission, said she was alarmed by the secret appointments.

"Fundamentally, this goes to the core elements of trust, accountability and transparency and they are the issues that everyday Australians have been so worried about for such a long period of time," she said.

"Why did he think it was so important to do it, but not important enough to share it with anyone else?

"It really begs the question: who was in charge?"

She said many questions needed to be answered to clarify whether a federal integrity commission could investigate the appointments.

"It's set up to investigate serious or systemic corruption. Now, what we don't know about this particular episode is, well, we don't know much at all," she said.

"Could the prime minister have been in breach of any ministerial code?

"Well, we didn't know that he was acting as a minister.

"I don't know whether this would end up in an integrity commission, but it sure as heck seems very, very dodgy and most questionable."

Federal ICAC investigation unlikely

Centre for Public Integrity chair Anthony Whealy QC said while highly unusual, it was unlikely the actions would be investigated by a federal integrity body.

"If you go to New South Wales, it's possible that this sort of behaviour could be investigated but in Victoria the definition wouldn't permit you to investigate it," Whealy said.

"Because we don't know the precise definition of corrupt conduct in the new legislation we can't say with any certainty whether it would be capable of investigation."

Whealy, a former assistant commissioner of the New South Wales ICAC, said the revelations could lead to a push for an expansion of the integrity body's powers.

"The powers that be in the attorney-general's department will be looking at this and there will be some debate about whether this is the sort of thing that should be looked at by an ICAC," he said.

"The whole system of Westminster democratic government requires us to know who has the power in relation to various portfolios.

"It's worrying for the proper democratic system and its performance.

"It's such an odd situation and until we know the explanation it's very hard to put a value judgement on it but it certainly requires investigation and explanation."

Appointments technically above board, but constitutionally inconsistent

Associate professor of constitutional law at Monash University Luke Beck said the decisions were legal but "utterly bizarre".

"Technically, this looks like it's probably, strictly speaking, legal, but it is inconsistent with constitutional convention. These are the unwritten rules that govern how things run," he said.

"Convention in this country is that the identity of ministers is published in the Gazette, that the identity of ministers is known to parliament."

In a statement, Governor-General David Hurley confirmed he signed off on the appointments, but Dr Beck said he still had further questions to answer.

"The governor-general's statement is extremely vague and light on detail," he said.

Anthony Albanese and Governor-General David Hurley on the right at the swearing-in ceremony of the former.

Governor-General David Hurley, right, at the swearing in ceremony of new Prime Minister Anthony Albanese on 23 May 2022. Photo: AFP

"There's a need, I think, for the governor-general to make a more fulsome statement explaining what happened and when, not just vague comments about ordinary processes of government.

"There's clearly a flaw in our system of relying on unwritten constitutional conventions. I think at the very least, the current parliament needs to pass a law that requires every time the governor-general appoints somebody to a ministry or to an extra ministry that that be published in the Gazette."

Albanese said he did not intend to "pass judgement" on the governor-general.

"I think the blame lands squarely and fairly with the former government," Albanese said.

"The governor-general acted on the advice of the government of the day. Let's be very clear here, it is Scott Morrison who initiated this extraordinary and unprecedented action."

Australia Prime Minister Anthony Albanese speaks at the Sydney Energy Forum on July 12, 2022, in Sydney. - The Sydney Energy Forum brings together global leaders across government, industry, academia, technology and innovation to identify solutions to delivering clean energy supply chains across the Indo-Pacific. (Photo by Brook MITCHELL / POOL / AFP)

Anthony Albanese: "It is Scott Morrison who initiated this extraordinary and unprecedented action." Photo: AFP

Challenge to decisions unlikely

Professor Anne Twomey, an expert in constitutional law, said it was unlikely any of the decisions surrounding Morrison's ministerial appointments would be deemed invalid.

"There's another provision in the Acts Interpretation Act, section 19(e), that says if a minister purports to exercise a power or perform a power or duty that's actually conferred on another minister then the exercise of that power is not invalid even though the wrong minister did it," she said.

"It's fairly unlikely that you could invalidate these acts.

"There's at least one possible challenge in relation to this in relation to a mining decision that was made.

"I think people are going to be trawling back over other decisions and trying to work out whether any power has been exercised by someone who wasn't formally given the role."


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