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Morrison’s actions ‘inconsistent’ with the Constitution
The Solicitor-General’s advice on the appointment of former prime minister Scott Morrison to the industry ministry has been released, finding that appointment was not in line with the conventions and practices of responsible government and offering solutions to prevent such a reoccurrence.
Jerome Doraisamy
In a press conference at midday today (Tuesday, 23 August), Prime Minister Anthony Albanese released the opinion of Solicitor-General Stephen Donaghue SC in the matter of the validity of the appointment of the former PM to administer the Department of Industry, Science, Energy and Resources (DISER).
“The Governor-General, acting on the advice of the Prime Minister, has power under s 64 of the Constitution to appoint an existing minister of state, including the Prime Minister, to administer an additional department of state,” he wrote.
“The Governor-General has no discretion to refuse to accept the Prime Minister’s advice in relation to such an appointment. 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.”
However, S-G Donaghue went on, the fact that the Parliament, the public and other ministers were not informed of the appointment was “inconsistent with the conventions and practices that form an essential part of the system of responsible government prescribed by Ch II of the Constitution”.
This is because, he advised, it is impossible for ministers to be held accountable if the identity of those ministers is not publicised.
“That conclusion 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 responsible for the administration of the department,” he said.
S-G Donaghue wrote that he considers the appointment of Mr Morrison to the industry portfolio to be valid, but such validity does not mean that the lack of notification of the appointment was consistent with the principles of responsible government inherent in the Constitution.
“In my opinion, it was not,” he said.
Put another way, “in cases where appointments are made public, the fact that multiple ministers may be responsible for administering a single department is not inconsistent with responsible government”.
Looking ahead, there are “many ways” that the new Albanese government could remedy the situation, Mr Donaghue suggested.
“Most straightforwardly”, he wrote, the government could alter the form of ministry lists to ensure that they include details of all appointments under s64 of the Constitution and publish those appointments in the gazette and on departmental websites.
“The government might choose to entrench a requirement for the publication of appointments under s 64 of the Constitution, by creating a statutory requirement that such appointments be published (which would legally require publication unless or until a future Parliament repealed that requirement).
“In my opinion, it is clear that Parliament has power to enact such a requirement,” S-G Donaghue proclaimed.
“It could, for example, require the gazettal of those appointments, or alternatively it could require the instruments making those appointments to be included on a public register (such as the Federal Register of Legislation).”
MORE TO COME.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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