The solicitor-general has , finding former prime minister Scott Morrison did not break any laws by secretly swearing himself into five other ministries.
But he’s also found Mr Morrison’s actions had undermined the principle of ‘responsible government” as found in the constitution.
While Mr Morrison did nothing legally wrong, into the affair, with Prime Minister Anthony Albanese considering reforms.
Here’s what the solicitor-general found - and what it means.
What did the legal advice examine?
Solicitor-General Stephen Donaghue QC, Australia’s second-highest ranking legal officer, was tasked by the government to examine the legal implications of Mr Morrison’s secret appointments.
Mr Morrison held control over the Treasury, health, finance, home affairs and industry, energy science and resources portfolios.
Australia's solicitor-general, Stephen Donaghue QC, in 2017. Source: AAP / DARREN ENGLAND/AAPIMAGE
Mr Morrison’s actions in this portfolio came under increased scrutiny because the former prime minister used his powers to veto a controversial gas proposal.
The decision to block the PEP-11 gas exploration proposal is now the subject of a legal challenge involving the Commonwealth.
Why were the appointments legal?
The solicitor-general answered question of the validity of Morrison’s appointment to administer the industry, energy and resources portfolio in Paragraph 8 of the advice:
“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.”
“The Governor-General has no discretion to refuse to accept the Prime Minister’s advice in relation to such an appointment.”
According to Professor George Williams, a legal expert from UNSW, that finding is “unsurprising” because there are actually few laws directly concerning ministerial appointments - or a legal requirement for them to be made public.
“So long as the governor-general makes the appointment, there's no requirement to publicise the fact that has occurred or even to follow another process,” he told SBS News.
“So in the end, it's clear that Scott Morrison was validly appointed to these ministries.”
So why were the appointments 'inconsistent' with the constitution?
Directly after saying the appointments were legal in Paragraph 8 - the solicitor-general says the secrecy around the ministerial arrangements was “inconsistent” with conventions and practices that form part of the system of “responsible government” laid out in the second chapter of the constitution.
Further down in Paragraph 29 he explains that while these practices are not explicitly stated, they are implied through the document and have been recognised as convention for decades.
“The provisions of Chapter II are sparse. Nevertheless, the High Court has long recognised that they provide for a system of responsible government – meaning a “system by which the executive is responsible to the legislature and, through it, to the electorate”.
“Indeed, responsible government has been recognised as a “central feature of the Australian constitutional system.
Mr Morrison’s appointments to these portfolios were kept secret - including to most of the ministers he was effectively shadowing.
That makes it difficult for the parliament and the public to hold him to account for any decisions he may have made in those portfolios - because it was not clear he was responsible.
“Plainly enough, it is impossible for the Parliament to hold Ministers to account for the administration of departments if it does not know which Ministers are responsible for which departments.”
In Paragraph 46, the implications of that are laid out, with the solicitor-general noting whether or not Mr Morrison used his powers is irrelevant.
“The end result is that, to the extent that the public and the Parliament are not informed of appointments that have been made under s 64 of the Constitution, the principles of responsible government are fundamentally undermined.”
“Our system of government is a mix of hard law in the Constitution and conventional tradition and much of that convention actually determines how the system works,” Professor Williams explains.
“The hard law doesn't even mention the prime minister, for example. And it means when it comes to the appointment of ministers, much of that is based upon this convention.”
“It's expected that our politicians will follow that convention because the system depends upon it. Here that has broken down.”
What about the role of the Governor-General?
The role of Governor-General David Hurley has come under significant scrutiny after it was revealed he signed off on the appointments using an administrative instrument.
Governor-General David Hurley with then prime minister Scott Morrison in 2019. Credit: TRACEY NEARMY / POOL/EPA
And in Paragraph 14, he notes the governor-general does not have the right to reject the prime minister’s advice.
“There is no doubt that the Governor-General is bound to follow the Prime Minister’s advice in the exercise of that power. That is a very clear constitutional convention.”
“While the Governor-General has certain reserve powers that may be exercised without or contrary to advice, the power to appoint Ministers (other than the Prime Minister) is not one of them.”
Professor Williams said the advice cleared Mr Hurley of any suggestion of wrongdoing.
“If the governor-general had broken that convention, if he decided to go rogue and not follow the advice, we would have had a genuine constitutional crisis,” he explained.
“I think the governor-general clearly has acted according to the guardrails of his position. We have a different type of problem because of what the prime minister required the governor-general to do.”
