Extract from Eureka Street
- Binoy Kampmark
- 01 September 2022
Given the passage of 92 pieces of national security legislation since September 11, 2001, the allowance of secret trials, the permissibility of indefinite detention, mandatory metadata retention for up to two years, and raids on journalists, prompting the New York Times to call Australia one of the world’s most secretive liberal democracies, the shadow government revelations of former Prime Minister Scott Morrison are troubling but consistent.
After losing office, Morrison did not shy away from his belief that governments and institutions were imperfect and, for all their intentions, untrustworthy. His own conduct has indicated that very fact: government is not to be trusted. His own effort to acquire control, via stealth, of a number of ministerial portfolios spoke of an acute mistrust of his colleagues and human nature. He was, he claimed in justification, responsible for ‘every drop of rain’.
The most striking note in the tempestuous outrage regarding Morrison’s self-appointment (technically, appointment with the Governor-General’s approval) to five ministerial portfolios other than his own, is the search for the illegal. Such a search is fruitless in a system that thrives on the principle of convention, perennially uncodified and therefore susceptible to breach. It may explain why the criticism has tended to focus on disappointment and outrage: that Morrison’s conduct was ‘sinister’, as former Prime Minister Malcolm Turnbull put it; or ‘bizarre’, as many have termed it.
A glance at the Australian Constitution reveals a paucity of substance regarding accountable, transparent government. That accountability resides in an understanding about how government and parliament ought to behave, a musty chivalric understanding about good conduct and decency. But there is no mention of the office of prime minister, and no mention of a cabinet, omissions that might encourage the republican sentiments in even the most indifferent of voters. Mention is made of a ‘Federal Executive Office’ that holds office ‘during the pleasure of the Governor-General’, which, in of itself, gives away little.
This spectral form of governance would be considered absurd. And it is. Cobbled together from British and Dominion practice, the term ‘responsible government’ was developed to supplement constitutional documents silent on political practice. From that, such quaint notions as ‘individual ministerial responsibility’ and ‘collective ministerial responsibility’ grew. It was all based on a normative assumption of political conduct, and, for that reason, bound to fail.
'The Morrison affair should do much to invigorate the debate about a republic and the need for clearly stipulated forms of ministerial practice. Prime Minister Albanese has told the Department of Prime Minister and Cabinet, and the Governor-General’s secretary to work together to ensure all ministerial appointments are published in the Commonwealth of Australia Gazette.'
The Westminster model, broadly speaking, vests enormous powers in a fused body. It does not adhere to the strict separation of powers that the Founding Fathers of the United States thought essential: a division of all the essential arms of government. Those slave-owning propertied types were suspicious of human nature and thought better than entrusting overwhelming powers in one arm of government over another. The result was the Republic, a remarkable if flawed creation.
In the case of the Westminster system, such balancing out between factions of government — the judiciary, the executive and the legislature — is frowned upon. The executive and legislature are to be seen as one, in ‘close union, the nearly complete fusion’, as Walter Bagehot famously described it in his The English Constitution (1867). The result is an enormous amount of power concentrated in an executive that is invisible, of which no mention is made.
This power has, over the years, been understated through hopeful assessments that rely on a vigilant legislature in a permanent conflict of interest with the executive. Given that the Prime Minister and cabinet are drawn from the same body, it cannot be anything else. As High Court Justices Gaudron, Gummow and Hayne explained in Egan v Willis, the ‘task of the legislature [is] “to watch and control the government: to throw light of publicity on its acts… “[T]o secure accountability of government activity is the very essence of responsible government”.’
Governor General David Hurley confirmed that he signed the relevant documents enabling Morrison to assume control over other portfolios ‘consistent with section 64 of the constitution.’ This was, he suggested, not remarkable. ‘The Governor-General signs an administrative instrument on the advice of the prime minister.’ The issue of publicising the matter was not one for him to make: the government of the day had its own priorities on the issue.
The Solicitor-General’s advice of August 22 did little to dispel the limitations of the convention system. While the romance of convention clung stubbornly, the legal reality was different. Morrison’s conduct, in advising the Governor-General to appoint him to ‘administer multiple departments is not unlawful’ but constituted ‘a clear breach of the applicable conventions for the Governor-General to decline to accept and act upon the Prime Minister’s advice.’
Stephen O’Donaghue QC’s advice also noted that the Governor-General had ‘no discretion to refuse to accept the Prime Minister’s advice in relation’ to such appointments. Nor was ‘there any constitutional or legislative requirement for notification of such an appointment as a condition of its validity, or for the Minister to subscribe to another oath or affirmation following such an appointment.’
The Morrison affair should do much to invigorate the debate about a republic and the need for clearly stipulated forms of ministerial practice. Prime Minister Albanese has told the Department of Prime Minister and Cabinet, and the Governor-General’s secretary to work together to ensure all ministerial appointments are published in the Commonwealth of Australia Gazette.
Other possible future reforms go to mandatory disclosure provisions regarding ministerial appointments. These do not get away from the fundamental point about the Westminster system as it has morphed in Australian soil: the practice of such government is, paradoxically, un-inked and assumed. Any deviation from that might be criticised but remains legal. At the heart of such a political system lies, in other words, the seed for potential, secret despotism.
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