Scott Morrison guilty of a ‘constitutional failing’

Constitutional law expert Greg Craven says Scott Morrison’s ­decision to secretly have himself sworn into multiple portfolios is a major ‘constitutional failing’.

Constitutional law expert Greg Craven.

Constitutional law expert Greg Craven says Scott Morrison’s ­decision to secretly have himself sworn into multiple portfolios is a major “constitutional failing”, ­arguing the former prime minister fell short on his primary duty to protect the Crown and shield it from political criticism.

Professor Craven said Mr Morrison had broken a fundamental constitutional precept, which ­directs the prime minister not to draw the Queen into controversy, and that his behaviour went “completely against” the machinations of a British parliamentary system.

 

Professor Craven pointed to recent commentary, particularly on social media, as evidence that the Crown was being exposed to public criticism as a result of Mr Morrison’s actions.

“This is a very serious failing as a prime minister,” he said. “It is not a legal failing. It is a constitutional failing. It is not technically unconstitutional, but in our system there are fundamental precepts and one of those is that the prime minister does not place the governor-general into situations with undue pressure.”

Anthony Albanese on Tuesday confirmed Mr Morrison was ­appointed to a total of five ­additional portfolios during his tenure, including home affairs, Treasury, health, finance and the entire Department of Industry, Science, Energy and Resources.

The Prime Minister said the appointments were an “extraordinary and unprecedented trashing of Australia’s democracy”, and ­accused the Morrison government of leading a shadow government. “This has been government by deception. Government in ­secret,” Mr Albanese said.

However, he did not blame Governor-General David Hurley, saying he acted under the orders of the government of the day.

“I think it’s very clear here that the responsibility for this undermining of our parliamentary democracy rests with those people in the Morrison government, ­including the former prime minister, who were a party to this,” Mr Albanese said.

Amid questions over whether Mr Morrison’s portfolio appointments were officially recorded, Professor Craven said records should be held by the Department of Premier and Cabinet.

University of Sydney professor Anne Twomey said a transfer of ministerial powers normally ­occurred via a signed instrument between the prime minister – if he was the minister taking responsibility – and the governor-general.

The document would then be processed by the relevant department and made public through the Federal Register of Legislation or a government gazette.

Professor Twomey said Mr Hurley was right to not intervene in the decision, as the sharing of powers under the portfolio was not technically unlawful.

She said the governor-general could only intervene in extreme circumstances through special ­reserve powers, which could only be enacted if the prime minister was asking him to do something ­illegal.

In those cases, the governor-general could seek legal advice, delay and ultimately refuse to act.