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RUBY:

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

Today, the Prime Minister will reveal legal advice on Scott Morrison’s secret appointment to five ministries.
While the country waits to hear about the legal dilemmas the affair throws up, the former prime minister’s colleagues are responding both privately and publicly.

The explanations from Morrison have left some unconvinced and there are still questions over the purpose of such a ministerial power grab.

Today, chief political correspondent for The Saturday Paper, Karen Middleton on the reaction of Scott Morrison’s former cabinet colleagues and what this saga means for the Liberal Party.

It’s Tuesday, August 23.

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Archival tape – Anthony Albanese:

“There's a basic fundamental weakness in checks and balances. If no one knows who the minister is, then how can they be held to account for decisions which are made?”

RUBY:

Karen, we know that the Prime Minister Anthony Albanese will release legal advice about former prime minister Scott Morrison’s secret appointments to these five extra ministries soon. But in the week since we learned of their existence, you’ve been speaking to former coalition ministers, so Scott Morrison’s colleagues. How are they reacting to this whole affair – what are they saying?

Karen:

Well, I think they were shocked that he would do this at all, but particularly that he would do this without telling them. I think his colleagues on the whole are reluctant to speculate on the motivation, but certainly some are starting to wonder how his mind works. And many, I think, suspect that they were political decisions that he was taking as some kind of political insurance. The former treasurer Josh Frydenberg has told his colleagues that he's surprised and disappointed. Karen Andrews, the Home Affairs Minister whose portfolio was also taken over, is the only one thus far to have called for Scott Morrison to resign from Parliament. But I think there are a lot of his former colleagues who are uncomfortable about the position he's in. You know, they're saying, what if he'd won the election and then this had emerged and if it had emerged before the election was held, I think there's a fair chance they would have removed him and replaced him with someone else, probably Josh Frydenberg. So there's a lot of unhappiness. He may well face censure in the Parliament over all of this. But certainly based on the confusing and frankly, dissembling comments that the former Prime Minister made last week in an attempt to explain this, politics seems to be the only logical conclusion.

RUBY:

And we have now heard various explanations from Scott Morrison for doing what he did, including that he felt it was necessary because of the emergency of the pandemic. He also defended his decision by saying that he didn’t actually use the powers - except for that one time when he blocked the approval of a gas project. How do those explanations fit in with what we know?

Karen:

Well, the explanations are very circular. Everyone's scratching their heads about the explanations that he gave last week. On the one hand, he said it was emergency reserve powers because of the pandemic. On the other hand, he said he had to take them in case a minister took a decision that he thought wasn't in the national interest, which by that he seemed to mean the political interest of him or his government. So he used this mechanism initially in the health portfolio of all the portfolios he took on. That's the most defensible because we were in the middle of a pandemic. And the Biosecurity Act, which is a very far-reaching act that was activated under the pandemic, gave a lot of powers to the health minister. And the former Prime Minister argued at the time that it was important to have a backup for Greg Hunt. Now there are other ways to do these things, to have a backup for a minister who might be incapacitated. You just have another minister authorised in the event that the first one can't take the decision. But the arguments in the other portfolios are a lot less convincing than that. And in fact, three of them were taken on a year later, in 2021, when things were a little bit calmer in relation to the pandemic. We were in between waves, as it were, and there wasn't the same sense of emergency. So, you know, it's very puzzling. He did bring the Health Department decision to the National Security Committee of Cabinet. So there were a handful of ministers who were aware of that initially, but they certainly weren't aware more broadly, not in advance anyway of the rest of those decisions.

RUBY:

Yeah. As you say, in the past, when ministers have been away, it's fairly standard to appoint an acting minister. So it doesn't really seem like the threat of illness would require a prime minister to appoint themselves as a backup into all of these portfolios. Is there a suggestion then that this was perhaps less about that and more about those five portfolios and the ministers in them, and that perhaps Scott Morrison didn't trust them or wanted to have the option to overrule a decision they made if it came to it.

Karen:

Well, this is the thing. It was an interesting choice of portfolios, some of which he'd served in himself before home affairs or immigration as it was then, and Treasury he'd been in before. But he says it was because these portfolios had particular decision-making powers, unilateral decision-making powers, and he wanted to be a backup for those powers, a check on them if you like. It seems to have been more that he's worried that they were going to take decisions that he didn't like. And it's interesting, again, these portfolios in particular are in areas that are probably pretty useful in a political sense in the lead-up to an election. Finance has access to huge pots of money and we now know that the then Finance Minister, Mathias Cormann, had arranged for a special contingency access under what's known as 'Advances to the Finance Minister', in the light of the pandemic, to make sure there was fast access to money if it was required. But he negotiated that with the Labour Opposition and he notified Parliament about it. It seems the Prime Minister of the time, Scott Morrison, then got the authority which would have allowed him to also appropriate large amounts of money. So there's that. And Treasury also, of course, has access to money. The industry portfolio, which includes science and resources, gives you power over decisions relating to major projects and Home Affairs gives you access to decisions around the Australian Border Force and the security agencies.

So these are all portfolios where it can be politically useful. And remember on election day there was pressure applied through the Home Affairs Minister to the Home Affairs Department to make public details of the interception of some asylum seeker boats, which are usually not public. And in fact, Scott Morrison led the charge to make that information secret. Now we don't know whether he exercised the power beyond that one resources decision. He said he didn't. He's only done it once. But he also said last week that he couldn't recall if he had other portfolios beyond just health and finance. So I'm afraid we can't necessarily rely on his memory here, and that's why we've got the Solicitor General having a closer look, and that's also why there are calls for a wider enquiry.

RUBY:

We'll be back after this.

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Archival tape – News Reporter:

“The Solicitor General has been looking into legal issues around the arrangements which were kept secret from Cabinet, Parliament and the Australian people…”

Archival tape – News Reporter 2:

“Labour has expressed confidence in the Governor-General over his role in
rubber-stamping Scott Morrison's secret portfolios…”

Archival tape – Newsreader:

“There have also been questions about the Governor-General's role in this. I mean, the system allowed for this to happen and Anthony Albanese has flagged that he may look at ways to change the system…”

RUBY:

Karen, we've been talking about Scott Morrison's explanations around why he needed to appoint himself to these various ministries. And I suppose the theory or the suggestion that these were political decisions that he made. What do we know though, about the actual process, particularly when it comes to the Governor-General, David Hurley? He did what Scott Morrison asked and he didn't tell anyone about it. Has he faced much scrutiny as a result?

Karen:

The Government, the now-Prime Minister Anthony Albanese, is absolving the Governor-General and the Opposition Leader, Peter Dutton is doing the same. Making the point that a Governor-General is required to act on the advice of a Prime Minister. And that's what David Hurley did. Of course, people are very reluctant to question that process because that takes us back to the constitutional crisis of 1975, when the Governor-General, Sir John Kerr, overrode the Prime Minister and in fact sacked Gough Whitlam. Nobody wants to get tangled up in anything that starts to look like that. But what else is being raised is did he push back? Did he question this? And did he require or recommend that these decisions be made public? He issued a statement himself last week saying that it was never communicated to him that these things would not be made public. Well, there were five of these portfolio takeovers in four separate decisions. You know, people are asking, well, after the first one and the second one in 2020, it was clear they weren't made public. Did he raise any questions then and should he have. So there is some pressure now for an examination also of that process involving the Governor-General and whether he just rubber stamped this request or whether he interrogated it. And many people are saying they think that it should have been the latter.

RUBY:

And we know that the Prime Minister Anthony Albanese has referred this to the Solicitor General to find out if what happened was actually legal and we could get word about that at any moment. But what else is Anthony Albanese considering when it comes to, I suppose maybe making sure that something like this can't happen again?

Karen:

Well, there's talk of firstly an enquiry into the whole situation. There is some pressure from the Greens and others to make sure that an enquiry would also cover the actions of the Governor-General and now that does get tricky as we've discussed, but that's being requested. Because clearly there were officials in the Department of Prime Minister and Cabinet who knew about this when even members of Cabinet didn't. So there's a question around that and the role that they played and whether what they did was appropriate. There's another question, of course, about members of the prime minister's own staff who must have known as well. Who were they? What role did they play? Whether that fits into an enquiry or not is unclear. There's the issue of whether or not the former prime minister is censured on the floor of the parliament when the parliament resumes. The minor parties and independents in particular are pressing for that to occur. And then there's the big question of what needs to happen to ensure this can't occur again. And there's a lot of pressure, and I think this has got some support within the government and from the new prime minister himself to make sure that at least these sorts of moves, if they ever needed to be taken and if there was ever a good reason to take these sorts of steps again, that they not be done in secret. So there's some reluctance about over codifying what can and can't happen in terms of ministerial authority, because it's hard to anticipate all future scenarios where you might need somehow to have two people with decision making authority. And of course, we didn't anticipate the pandemic that occurred and has been with us for now nearly three years. But there certainly seems to be growing consensus that you might need to change the law or upgrade convention to make sure that any of these decisions that are taken in future are made public. That would provide an important check and balance on what then happens when those decisions are taken. Because we know if things are done in secret, the risk of something unlawful or unethical and inappropriate occurring are greatly enhanced.

RUBY:

There's no doubt, is there, Karen, that this is going to impact Scott Morrison's legacy, whatever his actual reasons were, at the very least, that the secrecy and the disregard both for his own colleagues and also for the processes of governing - that is the overwhelming message that I think people are absorbing from this, and that can’t be good for Scott Morrison, or for the Liberal party?

Karen:

Well, that's one of the unfortunate by-products of this, that his legacy is greatly damaged. I mean, there are many problems with what's occurred, not least the implications for good governance, for the conventions of the Westminster system, for due process and proper process. But legacy is another thing that's taken a hit in this scenario. People will look back on Scott Morrison's prime ministership and this is what they'll remember now. And I think that's something that he could and should have thought about. And I think that's certainly what his colleagues are upset about as well. Aside from all those major implications, this is hugely damaging for the Liberal Party and the Liberal Party brand and it goes against what the Liberal Party has stood for. It's always been suspicious of centralised, heavy handed government in fact the party that wants to decentralise government and make sure government is not all held to strenuously and strongly in the centre. So this is exactly the opposite of that. And on top of it, he's done this without any transparency. You know, it's very damaging both for the Coalition generally and particularly for his reputation.

RUBY:

Karen, thank you so much for your time.

Karen:

Thanks, Ruby.

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RUBY:

Also in the news today...

A study has found that Australians are more worried about an imminent Chinese invasion of Taiwan, than actual Taiwanese people are.

A study by Australia Institute’s International and Security Affairs program found that nearly 1 in 10 Australians believe an invasion will come “soon”, compared with 1 in 20 Taiwanese.

And Qantas CEO Alan Joyce announced that frequent flyers of the airline would be offered a $50 voucher as an “apology” from the airline for flight cancellations and delays in recent months.

After frequent flyer members rushed to redeem the vouchers, some reported the website and app had crashed.

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