The nation's second law officer has found former prime minister Scott Morrison was validly appointed to the resources portfolio but not notifying ministers, parliament or the public "fundamentally undermined" the principles of responsible government.
Prime Minister Anthony Albanese has released the much-anticipated advice on the legality of his predecessor's appointment to the resources portfolio, after first sharing it with cabinet.
Mr Albanese said there was a clear need to ensure absolute confidence in political processes going forward.
"Our system relied upon conventions, accountability, checks and balances — those have been thrown out," he said.
The specific question put to the solicitor-general was: "Was Mr Morrison validly appointed to administer the Department of Industry, Science, Energy and Resources on 15 April 2021?"
Solicitor-general Stephen Donaghue found the appointment was valid under section 64 of the constitution.
"The governor-general, acting on the advice of the prime minister, has power under s 64 of the constitution to appoint an existing minister of state, including the prime minister, to administer an additional department of state," he said.
"The governor-general has no discretion to refuse to accept the prime minister's advice in relation to such an appointment."
Dr Donaghue said it was impossible for both parliament and the public to hold ministers to account when the identities of those responsible were not public.
"That conclusion does not depend on the extent to which Mr Morrison exercised powers under legislation administered because from the moment of his appointment he was responsible for the administration of the department," he said.
Inquiry planned but exact nature to be determined
Mr Albanese announced he intends to launch an inquiry into the appointments.
"The cabinet has determined that there will be a need for a future inquiry," he said.
"We'll give proper considered thought into what the structure of an inquiry should be based upon proper advice that I have asked the Department of Prime Minister and Cabinet to give me.
"The inquiry will need to examine what happened and what the implications are for what occurred over whether there are any legal issues that are raised, which is why we would be looking at someone with a serious legal background to undertake the inquiry.
"Thirdly, it needs to look at future reform, how we can ensure that this doesn't happen in the future … so making positive future recommendations as well, which I can't envisage that the government would not act on all of the recommendations which are made."
The Department of Prime Minister and Cabinet referred the matter to the solicitor-general last Monday.
The following day, Mr Albanese announced he was also seeking further legal advice, accusing his predecessor of orchestrating an "unprecedented trashing of democracy".
Mr Albanese revealed the former prime minister had taken on five additional portfolios already held by other ministers, and the majority were unaware of the move.
In a statement, Mr Morrison said the solicitor-general had reaffirmed the appointments were valid and that there was no consistent process for publishing appointment decisions.
"In the extraordinary circumstances I was contending with, decisions were made and then I kept moving forward. We did not dwell on such decisions, especially those of a precautionary nature as they were effectively dormant," Mr Morrison said.
"In hindsight, some of these decisions will be reflected upon now and lessons learned.
"The solicitor-general has noted a number of these points from his perspective in his advice and I am sure this will help guide any changes in these areas."
Mr Morrison said he would assist any "genuine" process to learn lessons from the pandemic, and that he had reflected on the concerns raised about his actions.
Potential solutions
The solicitor-general recommended several options to ensure the public and parliament are informed and able to hold ministers to account.
The first was to include all appointments under section 64 of the constitution in ministry lists and require departments to list all relevant ministers on their websites.
Separately, Dr Donaghue suggested adopting the practice of publishing the appointments in the Gazette.
Other recommendations related to changes to the Administrative Arrangements Orders or entrenching a legal requirement to publish such appointments.
Possible next steps
Greens Leader Adam Bandt has written to the Speaker of the House of Representatives, Milton Dick, asking for the matter to be referred to the parliament's powerful privileges committee.
The government has the option of moving a motion of censure on the floor of parliament during next month's sittings.
That action, which condemns the secretive actions of Scott Morrison, would be set to pass on the government's numbers with the potential for some of Mr Morrison's former cabinet ministers, who have expressed their disappointment publicly and privately to cross the floor.
The motion would formally record the House's disapproval of the actions, but it would not have a significant impact on Mr Morrison.
Shadow Attorney-General Julian Leeser said the opposition acknowledged the advice.
"The solicitor-general confirmed that the appointments were validly made but proposed various mechanisms by which practices could in future be improved," he said.
"The opposition will work with the Government on any reasonable proposals to provide clarity to processes and improve transparency in ministerial appointments."
