Extract from ABC News
The nation's second law officer has found former prime minister Scott Morrison was validly appointed to the resources portfolio but not notifying ministers, parliament or the public "fundamentally undermined" the principles of responsible government.
Key points:
- The solicitor-general said Scott Morrison's appointment to the Resources portfolio was inconsistent with the practices of responsible government
- Prime Minister Anthony Albanese says he will call an inquiry at a later date
- The Department of Prime minister and Cabinet is already conducting a separate probe into the appointments
Prime Minister Anthony Albanese has released the much-anticipated advice on the legality of his predecessor's appointment to the resources portfolio, after first sharing it with cabinet.
Mr Albanese said there was a clear need to ensure absolute confidence in political processes going forward.
"Our system relied upon conventions, accountability, checks and balances — those have been thrown out," he said.
The specific question put to the solicitor-general was: "Was Mr Morrison validly appointed to administer the Department of Industry, Science, Energy and Resources on 15 April 2021?"
Solicitor-general Stephen Donaghue found the appointment was valid under section 64 of the constitution.
"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 said.
"The governor-general has no discretion to refuse to accept the prime minister's advice in relation to such an appointment."
Dr Donaghue said it was impossible for both parliament and the public to hold ministers to account when the identities of those responsible were not public.
"That conclusion does not depend on the extent to which Mr Morrison exercised powers under legislation administered because from the moment of his appointment he was responsible for the administration of the department," he said.
Inquiry planned but exact nature to be determined
Mr Albanese announced he intends to launch an inquiry into the appointments.
"The cabinet has determined that there will be a need for a future inquiry," he said.
"We'll give proper considered thought into what the structure of an inquiry should be based upon proper advice that I have asked the Department of Prime Minister and Cabinet to give me.
"The inquiry will need to examine what happened and what the implications are for what occurred over whether there are any legal issues that are raised, which is why we would be looking at someone with a serious legal background to undertake the inquiry.
"Thirdly, it needs to look at future reform, how we can ensure that this doesn't happen in the future … so making positive future recommendations as well, which I can't envisage that the government would not act on all of the recommendations which are made."
The Department of Prime Minister and Cabinet referred the matter to the solicitor-general last Monday.
The following day, Mr Albanese announced he was also seeking further legal advice, accusing his predecessor of orchestrating an "unprecedented trashing of democracy".
Mr Albanese revealed the former prime minister had taken on five additional portfolios already held by other ministers, and the majority were unaware of the move.
Potential solutions
The solicitor-general recommended several options to ensure the public and parliament are informed and able to hold ministers to account.
The first was to include all appointments under section 64 of the constitution in Ministry lists and require departments to list all relevant ministers on their websites.
Separately, Dr Donaghue suggested adopting the practice of publishing the appointments in the Gazette.
Other recommendations related to changes to the Administrative Arrangements Orders or entrenching a legal requirement to publish such appointments.
Possible next steps
Greens Leader Adam Bandt has written to the Speaker of the House of Representatives, Milton Dick, asking for the matter to be reserved the parliament's powerful privileges committee.
The government has the option of moving a motion of censure on the floor of parliament during next month's sittings.
That action, which condemns the secretive actions of Scott Morrison, would be set to pass on the government's numbers with the potential for some of Mr Morrison's former cabinet ministers, who have expressed their disappointment publicly and privately to cross the floor.
The motion would formally record the House's disapproval of the actions, but it would not have a significant impact on Mr Morrison.
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