Extract from ABC News
Analysis
There is a special irony at the heart of Scott Morrison's secret accumulation of multiple ministries: it started as an exercise in decentralising power, not concentrating it.
In early March 2020, when the threat of the pandemic was becoming clear, former attorney-general Christian Porter decided to have an audit of the Commonwealth's powers, to understand how the federal government could respond to the health emergency.
All manner of worst-case scenarios were being war-gamed: What capacity was there to protect particularly vulnerable communities such as remote Indigenous townships? Were travel blockades possible? And under which legislative authority?
What powers did the Commonwealth have to call in the Australian Defence Force if coronavirus ripped through a prison? Could military personnel be asked to watch over prisoners?
Astonishing powers discovered as pandemic erupted
A three-day audit conducted by Porter's office and personnel from the Australian Government Solicitor quickly uncovered the astonishing powers wielded by then-health minister Greg Hunt by virtue of the Biosecurity Act.
Provided he had the requisite health advice, Hunt could slam international borders shut or declare biosecurity measures that banned or required certain behaviour or practices. He could force a person or category of people to "keep specified records".
In short, they were considered "God-like powers", which whistled through parliament in 2015 with little expectation they would be activated.
"It is expected that the human health provisions contained in the bill will be seldom used," Barnaby Joyce, then agriculture minister, told parliament at the time.
By 2020, Porter and Hunt jointly decided the powers under the Biosecurity Act were so immense that there needed to be a broader framework of responsibility and oversight around them.
One idea was to delegate the power to cabinet but this was not possible because under the act, the health minister's powers in a declared human biosecurity emergency "may only be exercised by the Minister personally".
Instead it was decided to use a provision within the Biosecurity Act to delegate Hunt's responsibilities concurrently to another minister, and that this person would be the PM, Scott Morrison.
This mechanism was guided by advice from the Attorney-General's department and the Australian Government Solicitor.
It was seen as a neat solution that would achieve three ends: first, that there was a second minister in reserve should Hunt be incapacitated by COVID-19; secondly, that minister would not be Richard Colbeck, in whom colleagues lacked sufficient faith; and thirdly, that the duplicate minister would be already across all the incoming briefs on the pandemic and biosecurity threat.
Senior ministers sat around table to decide secret powers for Morrison
A three to four-page protocol was drafted for approval by the National Security Committee (NSC) of cabinet, which comprised Morrison, then-deputy PM Michael McCormack, Hunt, Peter Dutton (Home Affairs), Mathias Cormann (Finance), Marise Payne (Foreign Affairs) and Linda Reynolds (Defence).
And on March 14, the Governor-General signed an administrative instrument that appointed Scott John Morrison to administer the Department of Health.
Four days later — March 18, 2020 — a "human biosecurity emergency" was declared under the Biosecurity Act, giving health minister Greg Hunt sweeping, plenary powers.
Only members of the NSC — and the Governor-General — knew that Morrison also had that authority, which amounted to effective power of martial law.
One former cabinet minister said it was never understood or intended for it to be a "state secret" that health had duplicate ministers.
Maybe so, but it was never made public, although Morrison appears to have obliquely referred to the arrangement on March 18 when he referred to the declaration of a human biosecurity emergency triggered by the coronavirus threat, "and the need for the federal government to take actions under the Health Minister and myself as Prime Minister in relation to limiting that spread".
He added: "Now, I don't want people to be alarmed about this. This is what these measures in the Biosecurity Act are for."
Inside cabinet, the extension of Morrison's responsibilities to health was regarded as a one-off.
Morrison's rush to expand 'spoke of distrust and paranoia'
No one outside the Prime Minister's Office knew that the advice provided by Porter's office to the PMO would then be used as a template to expand Morrison's reach.
Cormann's finance portfolio came next (March 30, 2020), 16 days after Hunt's responsibilities were duplicated.
The super ministry of Industry, Science, Energy and Resources came more than a year later (April 15, 2021), ostensibly so that Morrison could snatch the unilateral decision-making powers of the resources minister Keith Pitt to reject an offshore gas project.
Porter, who had helped devise the mechanism, himself became a victim of Morrison's ministerial moonlighting in industry and science.
Then came Home Affairs and Treasury (May 6, 2021), for reasons Morrison has not been able to convincingly explain.
There is broad expectation that the solicitor-general will not find illegality in the delegation of ministerial power to Morrison, at least in respect of the health portfolio.
But there remain significant matters at play: principle, practice, convention and propriety.
And it is on these measures that Morrison risked running foul.
Why the former prime minister saw fit to amass such immense secret power may never be properly explained.
But his former cabinet colleagues, many of whom have been horrified to learn what had been concealed from them, say it speaks of a psychology of control, distrust and even paranoia.
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