Easy fix to Morrison dilemma

When it became known last week that Scott Morrison had appointed himself to administer departments other than Prime Minister and Cabinet, most often without the knowledge of his colleagues, we said he had erred in not making his appointments public. The legal opinion to government from Solicitor-General Stephen Donaghue confirms our view. The fact Mr Morrison did not exercise the power he legitimately had been granted by the Governor-General does not justify keeping it secret. In the one instance where Mr Morrison did exercise his power to prohibit offshore gas development in NSW he was not adequately specific about his decision-making powers.

This said, the advice of the Solicitor-General is clear. Mr Morrison was validly appointed. There was no breach of the Constitution and Mr Morrison did not act unlawfully. Nor was there a “constitutional or legislative requirement” for Mr Morrison’s appointment to be made public. Anthony Albanese has instructed his department to work with the office of the Governor-General to ensure that all future ministerial appointments are publicised as a matter of course. This should be an easy change to make. Past that, the government should resist the urge to continue to play politics with an issue that might say a lot about Mr Morrison’s state of mind during the pandemic and his relationship with his colleagues but was legal and within the Constitution. Therefore, outrage being projected towards a perceived fracture in the principles of Westminster government and breach of convention are of mainly academic interest. The concern outlined by Mr Donaghue was that the principles of responsible government were “fundamentally undermined” because parliament was unable to hold a minister accountable for their responsibilities if its members were “not aware that the minister has those powers”. While Mr Morrison’s appointment might have been unpublicised, there was at all times a responsible minister whose appointment was known to parliament and made public for colleagues, the opposition, stakeholders, the courts and voters to hold to account. Mr Morrison said he did not exercise powers established under the lawful authorities and as a result did not fulfil the function of an acting or co-minister, as has been alleged.

Had Mr Morrison chosen to act in other ministries, as he did with the gas exploration decision, his actions in all probability would have become known. Mr Morrison’s responsibility for any decisions he made was not lessened simply because his appointment had not been published. Regardless of this, proposed arrangements to ensure publication of any ministerial appointments from now on removes this concern. And it must not be forgotten that Mr Morrison, like all prime ministers, served at the pleasure of his parliamentary colleagues, who had the power to remove him at any time. The Prime Minister is correct to say that it is a matter for Mr Morrison’s colleagues to decide how he should be dealt with for actions taken as their leader. But Peter Dutton must be careful in his agreement to co-operate with the government’s ongoing efforts to make mischief on the issue.