Morrison’s extra ministry legal but undermined principles of responsible government: solicitor-general

Former prime minister Scott Morrison breached no laws but “fundamentally undermined” the principles of responsible government by keeping secret his appointment to five departments, the country’s top legal official has found.

In advice released on Tuesday, Solicitor-General Stephen Donaghue found Morrison had been validly appointed to the industry, science, energy and resources portfolio in 2021, but was highly critical of the lack of transparency and recommended the government fix the “deficient” disclosure practices.

Speaking after the release of the advice, Albanese condemned Morrison’s conduct and called on him to issue a public apology. He said the government would launch a further inquiry into the matter, which would be led by a legal expert.

“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,” Albanese said.

“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. That’s who, at the end of the day, we are accountable for,” he said.

Scott Morrison was appointed to five other portfolios in addition to his main job as prime minister during the pandemic without making the moves public.Credit: Dominic Lorrimer

Donaghue’s advice focused on the one department where Morrison exercised powers as the resources minister to block a controversial gas exploration project. He found the appointment was “valid” as the governor-general, acting on the advice of the prime minister, has power under section 64 of the constitution to appoint an existing minister to administer an additional department.

“The governor-general has no discretion to refuse to accept the prime minister’s advice in relation to such an appointment,” Donaghue said.

He said there was no “constitutional or legislative requirement” for the appointment to be notified publicly, but Morrison’s failure to alert ministers, the parliament, or the public was “inconsistent” with the conventions of responsible government under the Constitution.

“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.”

Credit: John Shakespeare

Albanese steered clear of criticising Governor-General David Hurley when asked about his role in appointing Morrison to the departments and whether it was feasible he did not know they were being kept secret.

“The report makes clear ... the governor-general acted upon the advice of the government of the day,” he said.

Albanese also indicated a future inquiry would not examine Hurley’s conduct, including whether he had asked Morrison to make the appointments public, saying his role had already been examined by the solicitor-general. He said that as a matter of protocol, conversations between the prime minister and governor-general were private.

“It’s a matter for the governor-general or for Mr Morrison whether there is any change to that. I’m not privy to that information,” Albanese said.

“But the governor-general has made that point clear in the statements he has made when he also said that there was no reason why he would think it would not be made public. Now, I think there are implications in that statement by the governor-general.”

Donaghue also noted in his advice that he had “not been briefed with any information concerning whether the lack of any notification was the result of a direction from Mr Morrison, or for some other reason”.

Albanese said the cabinet had agreed earlier on Tuesday that the forthcoming inquiry would be led by “an eminent person with a legal background to consider all of the implications”.

Shadow attorney-general Julian Leeser said the opposition would “work with the government on any reasonable proposals to provide clarity to processes and improve transparency in ministerial appointments.”

As a matter of immediacy, Albanese said he had directed the Department of Prime Minister and Cabinet and the Office of the Official Secretary to the Governor-General to adopt a practice of publishing future appointments of ministers to administer departments in the Commonwealth Gazette.

He indicated the government would legislate for this practice to be put into law, in line with a recommendation by the solicitor-general.

“I think one of the things we will need to consider is any future legislative changes to make sure that that is enshrined. To make sure that it is not dependent upon the goodwill of the government of the day,” he said.

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