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RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

The controversy over Scott Morrison’s secret ministry appointments is beginning to fade, but now, a new question has emerged: did the former Prime Minister act unconstitutionally?

Legal advice released last week found that Scott Morrison was legally appointed to the Resources portfolio under section 64 of the Constitution.

But rather than that being the end of the matter, it has raised a new question: was Morrison properly appointed under another section - section 65?

Today, chief political correspondent for The Saturday Paper Karen Middleton, on whether Scott Morrison may have acted unlawfully.

It’s Wednesday, August 31.

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RUBY:

Karen, when you first heard about these ministries that former prime minister Scott Morrison had appointed himself to, and the fact that he had actually used the powers and he gave himself at least once, what kinds of questions did you have?

KAREN:

Well, I think the first question, which really still hasn't been adequately answered, is, why did he do this? That's the biggest question of all. But beyond that, of course, the practicalities are important. And the next question is, was it constitutional and therefore, was it lawful to do these things? And that's the point we're at at the moment. We've seen the Solicitor-General's advice. He's the second highest law officer of the land after the attorney general. He's the legal adviser to the government. And he was asked a simple question in the past week and has answered it. And then I spoke to a range of constitutional experts to look at that advice, not only for what it says on the surface, but what it might be saying underneath.

RUBY:

Right so let's talk about the advice then, as you say the Solicitor General was asked to look at these appointments, and his advice was made public last week. Tell me exactly what it was that he was tasked with.

KAREN:

Yes, so Prime Minister Anthony Albanese asked Stephen Donaghue QC, the Solicitor General, one simple question - he asked him ‘was Scott Morrison as Prime Minister validly appointed to administer the Department of Industry, Science, Energy and Resources when Governor-General David Hurley signed the authorising instrument on the 15th of April 2021?’ That was the question, and the one decision, the one action that he took under these new powers across five portfolios that we're aware of was that decision which was to veto a gas exploration project off the New South Wales Central Coast, a proposed project that the government had to make a decision about. And he says that's the only decision he took and that's the limitation of that question.

RUBY:

Okay. And so when it comes to the question then that the Solicitor General was asked to look into the question of whether Scott Morrison was actually validly appointed to the Resources Ministry, what did he find?

KAREN:

Yes. So the question, as we said, was, was he validly appointed to administer that portfolio? And Stephen Donaghue gave a straightforward answer to that question, which was, yes. The Solicitor General noted that Section 64 of the Constitution gives the Governor-General the power to authorise an existing Minister of State to administer a department, and that can be an extra department. On that basis, Stephen Donaghue said that the industry appointment was valid and the other four extra ministry appointments were also valid. But crucially, the Solicitor General was not asked to determine if Scott Morrison's use of the power in the resources portfolio to veto the gas project was lawful.

And that's a crucial point because there are already legal proceedings underway about that decision. The company involved, Asset Energy, has begun proceedings in the Federal Court in Western Australia to challenge the decision not to proceed. So this advice from the Solicitor General, who's the government's lawyer, basically, becomes a weapon in that case. The people making the complaint can use the detail of this Solicitor General's advice in their legal proceedings so you can understand how the Government and the Prime Minister may not have wanted to ask the whole question ‘was the action lawful?’ because that is something the court will ultimately be deciding. But that's not to say there isn't some detail in the way the Solicitor General has answered the question he was asked that might point to that issue. And that's where this gets interesting, because Stephen Donaghue's advice raises at least two key issues that could cast doubt potentially, according to some constitutional experts I've spoken to, on the lawfulness of Scott Morrison's gas decision.

RUBY:

Right. Okay. So what are those two issues?

KAREN:

Well, the first thing he raises is an issue around what is called the principle of responsible government. Now, that is a principle found in the Constitution and affirmed by the High Court. And it's not just about being responsible in the sense of being sensible and being good citizens. It means being responsible in the sense of being accountable. So this is the government's obligation, as the Constitution outlines and the court has affirmed, to be responsible to the parliament and to the people. So on the question of whether Scott Morrison's acquisition of these powers in this particular portfolio was consistent with that, and in fact, across the other portfolios, Stephen Donaghue was quite blunt. He said, quote, “in my opinion, it was not.” So he is saying it breaches the principle of responsible government and that is a potential problem.

RUBY:

Right. And so why is that? Why did Donaghue think that what Morrison had done wasn't responsible government.

KAREN:

Because of the secrecy. This whole thing was done in secret. People weren't told about it. So that is the key here, because to be responsible in the terms that the Constitution lays out, which means accountable, it has to be public. People have to know that you're in this job. A minister can't be held properly accountable, according to Stephen Donoghue, or responsible if people don't even know they're the minister.

I spoke to constitutional lawyer Kim Rubenstein from the University of Canberra about this, and she believes that this is a key point because the principle of responsible government, which is linked to the text of the Constitution, is crucial. And then it's not clear the extent to which a court would rely on a breach of that principle to find that something is unlawful. In other words, if, say, the gas case was to get all the way to the High Court, and if its proponents were to argue that because the decision was taken by a minister who was appointed in secret, that minister cannot possibly be accountable to the public and the Parliament because nobody knew it was the minister and therefore it can't be responsible government and therefore it's unconstitutional and therefore it's unlawful.

RUBY:

Right. So Scott Morrison's actions, because they were secretive, might not be considered the actions of a responsible government. And this idea of responsible government, it's more than just a phrase, it's a constitutional principle. And according to at least one expert - constitutional expert - that you've spoken to, Scott Morrison, could be in breach of that principle and therefore in breach of the law.

KAREN:

That's right. And that could lead to the High Court, which is the ultimate arbiter in these things, deciding that the decision that was made wasn't constitutional and therefore wasn't lawful.

Going back to the solicitor general's advice, that was the first point. And there was also a second point which could cast further doubt on the question of lawfulness.

RUBY:

We'll be back after this.

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RUBY:

Karen, we’ve been talking about one of the ways in which Scott Morrison’s actions might be unconstitutional, but you mentioned there’s a second thing about the way these appointments were made that could have implications for whether this whole affair is actually lawful. What is that exactly?

KAREN:

So the way constitutional law works is there are some things that are set down in black and white law in the Constitution, and then there's plenty that's left to interpretation. And it's the High Court that ultimately interprets the law and works out what the people who drafted the Constitution actually meant. And so the law is evolving and changing. We've already talked about Scott Morrison having been appointed under Section 64 of the Constitution, and that section gives the minister the power to administer a portfolio which includes the departments that are under that portfolio and the legislation that fall within those departments. There's a different section of the Constitution in section 65, which provides a differently worded authority. That's an authority for the Governor-General to direct someone to quote, “hold the office” unquote of Minister for a specified portfolio. Some constitutional lawyers argue, based on a range of previous High Court judgements, that only the section 64 administrative power is the power that's required to fully operate as a portfolio minister. But Stephen Donaghue's advice, the Solicitor General, raises the possibility that the power under Section 65 to hold the office of the Minister may also be necessary to fully run the portfolio and take those decisions.

RUBY:

Right. And Scott Morrison didn't have those powers under section 65, only section 64.

KAREN:

Well, this is where it gets even more interesting. He had, you'll remember, five extra ministerial portfolios. He took on two of those - health and finance, in 2020. And when he did that, the letter that was drafted that the Governor-General signed, the letter of appointment, only mentioned section 64 to administer the portfolio. That was all done properly as the Solicitor General has said, but leap ahead another year and he took on three extra portfolios. And at that point, for some reason that hasn't been explained. The wording in the appointment letter was changed. Now the Governor-General's office has told me they didn't draft the wording of the letter, so it was either drafted in the Prime Minister's office or in the Department of Prime Minister and Cabinet. But in the second lot of letters, and there were only two of them that covered three portfolios, the industry portfolio, which includes resources, the Home Affairs portfolio and the Treasury, those two extra letters included reference to section 65. So Kim Rubenstein points out that this is an indication that someone, somewhere in the system thought, hmm, maybe he needed the extra reference just to be sure that he actually had enough power.

RUBY:

Right, so did he gain powers under section 65 then? Or not?

KAREN:

Look, it gets even weirder, Ruby. There's a particular form of words that you need to have to make sure that when you want to get the power under Section 65, you actually have it. And those words are ‘the Governor-General under section 65 of the Constitution is able to direct a person to hold the Office of Minister for’ X-Y-Z. And in those second two instruments it mentioned Section 64, but it didn't mention the words 'hold the office of'. And Stephen Donaghue says, without those words, that is not a full application of the requirements under Section 65 of the Constitution. And so those last two instruments that cover three extra portfolios only gave Scott Morrison the power under Section 64, not Section 65. And then the question we're left with is, does that matter or not?

RUBY:

Okay. And I suppose we don't actually know the answer to that question, do we, Karen? Because like the other question around responsible government, it hasn't been tested in the high court.

KAREN:

Absolutely correct. So all of the four constitutional lawyers that I spoke to made the same point, that Section 65’s importance has never been tested because every time a case has gone about the administration of a portfolio, it seems to have had both the Section 64 and Section 65 powers correctly given. So the issue then is what about section 65? Kim Rubenstein says she thinks it could potentially be important. Another one who's a respected constitutional lawyer agrees with her and believes that it could well be an important issue, both on the point of Section 65 and on that question, the first issue of responsible government. A third one said, well, it's never been tested, I don't know. And a fourth one said, well, it's never been tested, but I'm not convinced you need section 65.

And it may come down to the wording in each one of those pieces of legislation, how they actually describe the minister who gets the power. And in the case of the gas decision, it's described as “the responsible Commonwealth Minister”; there's that word again, ‘responsible’. And Kim Rubenstein reckons that this may be enough to suggest that without that properly executed Section 65 power, Scott Morrison wasn't the responsible minister.

RUBY:

And Karen, what is the significance of all of this, of you and I sitting here talking about whether or not the prime minister might have acted unconstitutionally? I mean, it's certainly not a conversation that I've had before. It seems to be a pretty unusual place to be.

KAREN:

I think it's important on a lot of levels. I mean, this point about responsible government is no small thing. You know, we elect people to represent us and we want to know what they're up to and we certainly want to know what job they have. So for things to be done in secret has clearly alarmed a lot of people in Australia and I think with good reason. So that's a key point. But the second point goes to the way the whole set up works in Australia, under our Westminster system of government. The structural underpinnings of our government are both legislative, you know, instruments of law and then there's constitutional convention. So going back to the wording of the Constitution that the original drafters put there and how that can be interpreted and we operate a lot, our system relies a lot on those conventions that are not necessarily the black and white letter of the law, but the interpretations of it. And what this whole thing I think has exposed is how much we rely on those conventions. And that means we rely on people who are of good character and reasonable to govern us under those conventions. And the question is, are there enough structures underneath our government systems to guard against some future person who may not be a benign leader or who may have ideas that are contrary to what might be acceptable standards from the Australian people?

RUBY:

Karen, thank you so much for your time.

KAREN:

Thanks, Ruby.

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RUBY:

Also in the news today,

Ahead of Thursday’s job summit, President of the ACTU Michele O’Neil urged the government to invest in closing the gender pay gap.

A policy paper released by the union, claims initiatives like tripling paid parental leave, addressing pay and job security in the care economy, and progressively moving towards making early child care free and accessible could generate an extra $111 billion for the Australian economy every year.

And...

A nationwide curfew is in place in Iraq, after stalled attempts to form a new government led to fighting between rival militias.

Powerful Shia cleric Moqtada al-Sadr announced that he was quitting politics on Monday, which led his supporters to storm the presidential palace.

I’m Ruby Jones, this is 7am, see you tomorrow.

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