Scott Morrison’s secret additional ministry appointments were legal but “fundamentally undermined” responsible government, according to the government’s top lawyer.
In advice released on Tuesday the solicitor general, Stephen Donaghue, called on the government to fix “deficient” rules around disclosure of appointments that allowed Morrison to keep his five extra ministries secret.
The prime minister, Anthony Albanese, told reporters in Canberra the advice “goes to our very system of government” and the controversy can’t “just be dismissed”, urging Morrison to apologise to the Australian people.
Albanese revealed he had asked his department to close the disclosure loophole, and that cabinet had approved an inquiry to consider the “implications” of Morrison’s actions.
This would be “not a political inquiry but an inquiry [conducted by] an eminent person with a legal background” to consider “problems” not dealt with by the advice, such as the fact Morrison was secretly the joint finance minister when the department investigated Christine Holgate, the former Australia Post chief executive.
Albanese said Morrison was the “health minister and the industry minister at the time we were considering mRNA vaccine manufacture in Australia”, and was the final decision-maker for modern manufacturing grants made by the industry department.
Albanese declined to say if the government would support a censure motion against Morrison, explaining it “will make those decisions when parliament sits”.
In the advice, Donaghue concluded that Morrison was “validly appointed” to administer the department of industries, science, energy and resources on 15 April 2021, because disclosure of the appointment was not required for it to be effective.
“That said, the fact that the parliament, the public and the other ministers who … administered [the department] concurrently with Mr Morrison were not informed of [his] appointment was inconsistent with the conventions and practices that form an essential part of the system of responsible government prescribed by … the constitution,” he said.
Donaghue said it was “impossible for parliament and the public to hold ministers accountable for the proper administration of particular departments if the identity of the ministers who have been appointed to administer those departments is not publicised”.
The solicitor general said this conclusion “does not depend” on whether and how many times Morrison exercised his powers.
Donaghue said to the extent appointments were kept secret, “the principles of responsible government are fundamentally undermined,” and the appointments “fundamentally undermined” the relationship between the ministry and public service.
That was because failure to inform the secretary of the department defeated the purpose of the appointment, he said.
The advice said the governor general “has no discretion to refuse to accept the prime minister’s advice in relation to such an appointment”.
Albanese noted this, and downplayed suggestions David Hurley could be investigated by the future inquiry by noting Hurley’s statement that he had no reason to think the appointment would not be made public.
Albanese confirmed that “clearly” some officials in his department were aware of the arrangements, but did not specify what, if any, consequences there should be for them.
Donaghue suggested a range of fixes to the disclosure loophole, including “to entrench a requirement for the publication of [ministerial] appointments” in legislation.
The deputy Liberal leader, Sussan Ley, said the opposition would work with Labor to “improve these processes and ensure transparency into the future”.
Morrison has denied exercising powers in his extra portfolios, beyond one instance in which he overruled then resources minister Keith Pitt to reject the Pep-11 gas project.
On Tuesday Morrison responded to the advice by arguing this meant he “did not fulfil the function of an acting or co-minister”.
“Ministers continued to exercise their full authorities without any interference, with my full trust and confidence.”
Morrison again defended the arrangements as a “necessary” safeguard in “extraordinary circumstances” which were done with the “best of intentions”.
But he conceded “in hindsight, some of these decisions will be reflected upon now and lessons learned”.
Morrison said he would “assist any genuine process to learn the lessons from the pandemic” which should include “actions of the states and territories”, an inquiry broader than the one proposed by Albanese.
The existence of Morrison’s secret ministries was first revealed in the book Plagued, which said he had been sworn in to administer the health department alongside Greg Hunt in March 2020.
Last week, Albanese revealed that Morrison had accumulated five additional ministries over a 14-month period: health; finance; industry, science, energy and resources; Treasury; and home affairs.
Earlier on Tuesday the deputy prime minister, Richard Marles, said there should be “severe political consequences” for Morrison’s secret ministries and committed to close a loophole that appointments do not currently need to be disclosed.
On 16 August Albanese accused Morrison of “misleading” the parliament, but experts have noted standing orders do not require it to be notified of ministerial changes, although this is accepted practice.
Morrison has faced calls from the shadow home affairs minister, Karen Andrews, to quit parliament, while Liberal MP Bridget Archer has also urged him to consider his position.
The Greens and crossbench MPs have pushed for Morrison to be referred to parliament’s privileges committee, with the Greens calling for an inquiry to consider the public service and the governor general’s role.
Greens justice spokesman, David Shoebridge, said the inquiry should have the powers of a royal commission.
