Scott Morrison lashed in Solicitor-General advice on secret minister scandal

Scott Morrison has been slammed by the nation’s top lawyer in a bombshell report after revelations he secretly became a minister of five portfolios.

Bombshell legal advice has accused former prime minister Scott Morrison of “undermining responsible government” by secretly appointing himself to five cabinet portfolios, but says the Governor-General had no choice but to agree to his demands.

The Solicitor-General’s advice, released today by Prime Minister Anthony Albanese, is sharply critical of Mr Morrison’s decision not to inform his colleagues or the public of the appointments made between March 2020 and May 2021, laying the groundwork for an inquiry.

In the report, the Solicitor-General said Mr Morrison’s appointment to the Department of Industry in particular was “valid”, but raised the issue of whether it was “consistent with the principle of responsible government”.

“In my opinion, it was not,’’ the advice states.

As expected, it finds Mr Morrison was legally appointed to the job and there was no “illegality” involved.

“The Governor-General has no discretion to refuse to accept the Prime Minister’s (Mr Morrison’s) advice in relation to such an appointment,’’ it states.

“Nor is there any constitutional or legislative requirement for notification of such an appointment as a condition of its validity, or for the Minister to subscribe another oath or affirmation following such an appointment.”

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Australia's former prime minister Scott Morrison has been slammed by the nation’s top lawyer in a bombshell report examining the legality of his secret minister appointments. Picture: Steven Saphore / AFP

Speaking in Canberra, Prime Minister Anthony Albanese said the advice was “a very clear criticism” of the former PM’s secret appointments, and that Mr Morrison “owes the Australian people an apology”.

“In summary, the Solicitor-General has concluded Mr Morrison was validly appointed by the Governor-General to administer the various departments to which he was appointed,’’ Mr Albanese said.

“The advice though is, I think, a very clear criticism and critique of the implications that are there for our democratic system of government of what happened under the former Morrison government.

“This isn’t something that can be just dismissed. This is something that goes to our very system of government which the Solicitor-General’s advice makes clear.”

Mr Albanese said he had distributed the advice to cabinet and it had determined there would be a need for a further inquiry.

An eminent legal expert would be appointed to inquiry into the matter, Mr Albanese said. It is yet to be determined if the inquiry will be conducted via public hearings.

He said there was evidence public servants in the Department of Prime Minister and Cabinet knew about the secret arrangement and there were unanswered questions about what had occurred.

“Why this occurred, how it occurred, who knew about it occurring?’’ he said.

“What the implications are for our parliamentary systems? Are there any legal implications behind decisions that were made? How can we avoid this happening again? There are clearly a whole raft of questions which have been rightfully raised, including with the Solicitor-General’s advice.”

Mr Albanese went on to say his predecessor owed the Australian people an apology, and claimed the former prime minister had “missed the point” in how he addressed the scandal.

“Scott Morrison owes the Australian people an apology for undermining our parliamentary democracy system of government,” he said. “And it’s one thing to see this as an issue between him and Josh Frydenberg or other individuals. He misses the point here completely. This is about the Australian people.”

The advice finds Mr Morrison was validly appointed to administer the Department of Industry, Science, Energy and Resources (DISER) on April 15, 2021.

“That said, the fact that the Parliament, the public and the other Ministers who thereafter administered DISER concurrently with Mr Morrison were not informed of Mr Morrison’s appointment was inconsistent with the conventions and practices that form an essential part of the system of responsible government,’’ it states.

“That is because it is 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 end result is that, to the extent that the public and the Parliament are not informed of appointments that have been made under s 64 of the Constitution, the principles of responsible government are fundamentally undermined,’’ the advice states.

It finds the secrecy undermined the principle of responsible government and changes are required going forward.

“Neither the people nor the Parliament can hold a Minister accountable for the exercise (or, just as importantly, for the non-exercise) of particular statutory powers if they are not aware that the Minister has those powers,’’ it states.

“Nor can they hold the correct Ministers accountable for any other actions, or inactions, of departments. The undermining of responsible government therefore does not depend on the extent to which Mr Morrison exercised powers under legislation administered by DISER , because from the moment of his appointment he 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.”

Prime Minister Anthony Albanese said the report was ‘a very clear criticism and critique’ of what happened. Picture: Gaye Gerard / NCA Newswire

News.com.au revealed on August 14 that Mr Morrison had secretly sworn himself into the resources portfolio to block a gas project angering the then minister Keith Pitt.

The revelations have sparked a week of controversy as it emerged that Mr Morrison never told then Finance Minister Mathias Cormann he was also appointed to his portfolio or that he subsequently sought the Governor-General’s approval to secretly appoint himself to Treasury and home affairs.

Mr Morrison’s secret power grab to seize the health and finance portfolio was first revealed in the book Plagued by journalists Simon Benson and Geoff Chambers.

The Prime Minister has previously flagged that a formal investigation into Scott Morrison’s ‘ministry of secrets’ will be required to ensure it never happens again.

News.com.au revealed on Sunday night that bombshell legal advice from the solicitor-general examining Scott Morrison’s secret power grab was “scathing” of the decision to trash time-honoured conventions that ministerial changes are made public.

The tightly-held legal advice, prepared by Australia’s solicitor general Dr Stephen Donaghue QC, was provided to the Prime Minister on Monday and will be discussed by the federal cabinet on Tuesday.

Deputy Prime Minister Richard Marles said this morning that Mr Morrison needed to face “severe consequences” for his actions.

“What is really clear is that Scott Morrison treated firstly the Australian people with complete contempt, by not making transparent the decisions he was taking in respect of who was running Australia,” he said.

“He’s treated his own colleagues with contempt. Importantly here, he has treated the cabinet process with contempt.

“That’s at the heart of the Westminster system. As we go forward, whatever the legal advice, there needs to be some political consequence for a person who flouted the, really, the Westminster cabinet system so completely.

“What has happened here is a disgrace and it’s appalling in terms of the way in which the Australian people have been treated with contempt.

“But clearly, it needs to be a severe consequence.”

Deputy Prime Minister Richard Marles earlier called for the former PM to face a ‘severe consequence’. Picture: Steven Saphore / AFP

Mr Albanese earlier flagged he would move to establish some form of inquiry, declaring he was “shocked” by revelations Mr Morrison secretly appointed himself to multiple portfolios.

Even the Office of the Official Secretary to the Governor-General – which is independent from the Governor-General – has called for more transparency.

“Acknowledging that the administrative appointments were not communicated – as expected, by the government of the day – the office supports a more transparent process to ensure that any appointments made under section 64 (of the Constitution) are made public,’’ a spokesman said.

“Noting that these reporting responsibilities are the prerogative of the government of the day, the office will await the recommendations of the current process before commenting further.”

Mr Albanese said he would share the advice with cabinet on Tuesday before making it public.

“I think politeness and proper process means that they should have access to it,” he said.

The solicitor-general’s advice is publicly released only in the rarest of circumstances.

Previously, then prime minister Malcolm Turnbull released legal advice from the solicitor-general that found Peter Dutton was “not incapable” of sitting in parliament amid debate over a potential conflict of interest.

However, Mr Morrison declined to release advice regarding then attorney-general Christian Porter last year.

“Quite clearly, there are real questions to be answered here,’’ Mr Albanese said.

“There is a question of legality. There hasn’t been a suggestion of illegality but there are – there have been questions raised about how this could occur, how it fits in with the conventions and the normal accountability mechanisms and checks and balances that are there in our parliamentary democracy.

Liberal MP Bridget Archer, the Member for Bass in Tasmania, said Mr Morrison should “consider his position” and has backed an inquiry into his conduct.

“I find it incredulous to hear people say, ‘Oh, you know, the Australian people aren’t talking about this’. And I heard that same sort of commentary around an integrity commission,” she said.

“And I can assure you people are talking about it. They’re not necessarily framing it in those terms. What they’re talking about is trust.”