The solicitor-general said that under section 64 of the constitution, Morrison appointing himself without disclosing it was valid. Source: Nathan Hale, Flickr.
The government’s top lawyer found Scott Morrison’s secret ministry appointments legal but “fundamentally undermined” government principles.
Prime Minister Anthony Albanese released the advice he received on the legality of his predecessor’s actions after sharing it with cabinet.
The solicitor-general, Stephen Donaghue, said in his advice that the government should change “deficient” practices around disclosure of appointments which allowed the former prime minister to keep it secret.
The specific question put to him was: “Was Mr Morrison validly appointed to administer the Department of Industries, Science, Energy and Resources on 15 April 2021?”
He said that under section 64 of the constitution, Morrison appointing himself without disclosing it was valid.
“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.”
Albanese said he asked his department to close the loophole and cabinet has approved an inquiry into the appointments.
“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,” he said.
“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 solicitor-general made several recommendations to keep the public and parliament informed and hold ministers accountable.
They included all appointments under section 64 of the constitution be in Ministry lists and departments to list all relevant ministers on their websites.
It was also suggested that publishing the appointments in the Gazette becomes a practice.
