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Morrison’s actions ‘inconsistent’ with the Constitution

The Solicitor-General’s advice on the appointment of former prime minister Scott Morrison to the industry ministry has been released, finding that appointment was not in line with the conventions and practices of responsible government and offering solutions to prevent such a reoccurrence.

user iconJerome Doraisamy 23 August 2022 Politics
Morrison’s actions ‘inconsistent’ with the Constitution
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In a press conference at midday today (Tuesday, 23 August), Prime Minister Anthony Albanese released the opinion of Solicitor-General Stephen Donaghue SC in the matter of the validity of the appointment of the former PM to administer the Department of Industry, Science, Energy and Resources (DISER).

On the question of whether Mr Morrison was validly appointed to administer this portfolio, the S-G found that he was.

“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 wrote.


“The Governor-General has no discretion to refuse to accept the Prime Minister’s advice in relation to such an appointment. Nor is there any constitutional or legislative requirement for notification of such an appointment as a condition of its validity, or for the minister to subscribe another oath or affirmation following such an appointment.”

However, S-G Donaghue went on, the fact that the Parliament, the public and other ministers were not informed of the appointment was “inconsistent with the conventions and practices that form an essential part of the system of responsible government prescribed by Ch II of the Constitution”.

This is because, he advised, it is impossible for ministers to be held accountable if the identity of those ministers is not publicised.

“That conclusion does not depend on the extent to which Mr Morrison exercised powers under legislation administered by DISER, because from the moment of his appointment he was responsible for the administration of the department,” he said.

S-G Donaghue wrote that he considers the appointment of Mr Morrison to the industry portfolio to be valid, but such validity does not mean that the lack of notification of the appointment was consistent with the principles of responsible government inherent in the Constitution.

“In my opinion, it was not,” he said.

Put another way, “in cases where appointments are made public, the fact that multiple ministers may be responsible for administering a single department is not inconsistent with responsible government”.

Looking ahead, there are “many ways” that the new Albanese government could remedy the situation, Mr Donaghue suggested.

“Most straightforwardly”, he wrote, the government could alter the form of ministry lists to ensure that they include details of all appointments under s64 of the Constitution and publish those appointments in the gazette and on departmental websites.

“The government might choose to entrench a requirement for the publication of appointments under s 64 of the Constitution, by creating a statutory requirement that such appointments be published (which would legally require publication unless or until a future Parliament repealed that requirement).

“In my opinion, it is clear that Parliament has power to enact such a requirement,” S-G Donaghue proclaimed.

“It could, for example, require the gazettal of those appointments, or alternatively it could require the instruments making those appointments to be included on a public register (such as the Federal Register of Legislation).”