Legal advice on Scott Morrison's multiple secret ministries has been released.
Prime Minister Anthony Albanese called the advice from solicitor-general Stephen Donaghue a "clear criticism and critique" of Mr Morrison's decision to appoint himself to administer several ministries.
With solicitor-general advice rarely made public, here's what we learned from this release.
Scott Morrison didn't do anything illegal
The former prime minister's actions in assuming power of five ministerial portfolios was legal.
The solicitor-general's advice focused specifically on the question of whether Mr Morrison's appointment to the department of industry, science, energy and resources was valid.
"The Governor-General, acting on the advice of the Prime Minister, has power under s64 of the Constitution to appoint an existing Minister of State, including the Prime Minister, to administer an additional department of State.
"The Governor-General has no discretion to refuse to accept the Prime Minister’s advice in relation to such an appointment.
"Accordingly, Mr Morrison was validly appointed to administer DISER on 15 April 2021."
The advice focused on Mr Morrison's self-appointment to the resources portfolio because it was the department in which he made decisions using the resources minister's powers.
In December 2021, Mr Morrison announced PEP-11, a gas-drilling proposal off the New South Wales coast, had been knocked back.
In doing this, he overruled the then-resources minister, Keith Pitt.
The secrecy wasn't consistent with 'responsible government'
Even though the appointments were legal and valid, the solicitor-general's advice highlighted the issue with Mr Morrison and his department keeping it a secret from Parliament and the public.
"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."
The solicitor-general said the capacity for the public and the Parliament to know which ministers have been appointed to administer which departments "is critical to the proper functioning of responsible government".
That's because the appointments determine what a minister is legally and politically responsible for.
If the minister isn't known, the public don't know who to hold accountable for the actions (or inactions) of departments.
"From the moment of his appointment [Scott Morrison] 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."
The advice included some solutions
- 1.The ministry lists could include details of all appointments under s64 of the Constitution. The Government could also require the website of each department to list all of the Ministers who have been appointed to administer that department
- 2.All appointments made under s64 could be published in the Commonwealth Gazette in the same process under s65. That could mean the information would be published regardless of whether the Prime Minister of the day publicises the appointment.
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3.
The Governor-General could alter how orders prescribing the roles of each minister are made, including a new section listing every Minister who has been appointed to administer that Department.
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4.
The previous point could be taken further by including how the appointed ministers have divided responsibility of a department between them.
- 5.To bind these proposals, the government could create a statutory requirement that such appointments be published.
What did the Prime Minister say about the advice?
Mr Albanese said the advice shows Mr Morrison's actions "fundamentally undermined" responsible government.
He also called for the former prime minister to apologise to the public.
"Scott Morrison owes the Australian people an apology for undermining our parliamentary democracy system of government that we have — something that can't be taken for granted," he said.
As for the consequences Scott Morrison should face, Mr Albanese said it would be up to the Liberal Party.
Mr Morrison has been facing calls to resign, including by former home affairs minister Karen Andrews, whose role he appointed himself to without her knowledge.
But many of Mr Morrison's Coalition colleagues have backed him, saying that if he hasn't broken the law he doesn't need to resign.
What happens now?
Mr Albanese said cabinet had agreed a broader inquiry was still needed to examine some unanswered questions, including:
- Why and how it occurred
- Who knew about it
- What are the implications for the parliamentary system
- What are the legal implications behind decisions that were made
- How can we avoid this happening again
Mr Albanese said the government agreed that it wouldn't be a political inquiry, but one run by a legal expert to focus on the legal background and implications.
Mr Albanese also asked the Department of Prime Minister and Cabinet to work with the Office of the Official Secretary to the Governor-General to adopt a practice of publishing future appointments of ministers.
