Scott Morrison’s use of a secret power toblock a gas exploration projectmay have been unconstitutional, and therefore unlawful, even though the nation’s second most senior law officer has found he was validly appointed to five extra portfolios.
University of Canberra constitutional law professor Kim Rubenstein says the advice that Solicitor-General Stephen Donaghue, QC, produced this week raises new constitutionality issues. Rubenstein says this means there is still a live question as to whether the then prime minister’s power to decide on the gas project – as opposed to his appointment to administer the relevant department – was actually lawful.
“Stephen Donaghue makes the distinction between the authorisation to administer a department and the appointment to hold the office of the minister,” Rubenstein says, “and that is the key difference.”
She raises two central arguments and at least one other constitutional law expert shares her interpretation.
One of the arguments relates to what appears to have been sloppy drafting of the Morrison appointment documents, in either the former prime minister’s office or by his department. If her interpretation is correct, it could have implications for the power Morrison assumed under the Biosecurity Act – the whole reason he seized extra powers in the first place – and may mean he never had it at all.
The new debate over the legality of Morrison’s gas decision comes as Prime MinisterAnthony Albaneseconfirms there will be a formal inquiry into his predecessor’ssecret 2020 and 2021 portfolio appointments. This week, Albanese said he wanted to appoint someone with a “serious legal background” to uncover what happened.
“Why this occurred, how this occurred, who knew about it occurring,” Albanese said on Tuesday when asked what he hoped an inquiry would examine. “What the implications are for our parliamentary system. Are there any legal implications behind decisions that were made? How can we avoid this happening again? There are clearly a whole raft of questions which have been raised, including with the solicitor-general’s advice.”
Donaghue’s advice was limited by what is known so far. “Of course, he hasn’t been able to ask questions about why this occurred or how it occurred,” Albanese said, as he took the highly unusual step of making the advice public, in full. “He simply examined what the circumstances are of what is before him.”
“That then raises a question as to whether he had the power under the act to make the decision because the act specifically refers to the ‘responsible’ minister, and he wasn’t ‘the responsible minister’. ”
Albanese had asked Donaghue one simple question: was Morrison validly appointed to administer the Department of Industry, Science, Energy and Resources when Governor-General David Hurley signed an authorising instrument on April 15, 2021?
The question was limited to the Industry portfolio because it was as minister in this portfolio that Morrison took the gas decision – the only time he says he exercised any of the extra powers he acquired.
In his 26-page response, Donaghue gave a straightforward answer: yes. He noted that section 64 of the constitution gives the governor-general the power to authorise an existing minister of state to administer an extra department, acting on the advice of the prime minister. He found that is what Hurley had done.
On that basis, Donaghue said the Industry appointment was valid, as were the four others that Morrison secretly arranged.
But, crucially, the solicitor-general was not asked to determine if Morrison’suseof the power to veto the gas project was lawful.
It’s here that Rubenstein says questions emerge.
Donaghue’s advice raises two key issues that could cast doubt on the lawfulness of Morrison’s gas decision.
That intervention occurred earlier this year, when Morrison blocked a proposed gas exploration project off the New South Wales Central Coast, a project his Resources minister, Nationals MP Keith Pitt, had intended to approve.
Apparently fearing an electoral backlash in key coastal seats – which the Liberal Party subsequently lost – Morrison intervened. He used a power that neither Pitt nor the company involved, Asset Energy, had known he had.
This was howthey discovered the then prime minister was shadowing the portfolio, having had himself granted the power to administer it.
Asset Energy had already begun legal proceedings in the Federal Court in Western Australia, where it is based, before the secret ministries were publicly revealed last week.
The first issue Donaghue raises that could have implications for the lawfulness question relates to the principle of “responsible government”. This is a government’s obligation, found in the constitution and affirmed by the High Court, to be responsible to both parliament and the people.
On whether Morrison’s acquisition of powers was consistent with that, Donaghue was blunt: “In my opinion, it was not.”
The reason, he said, was the secrecy. Responsible government requires accountability.
“To the extent that the public and the Parliament are not informed of appointments that have been made under s64 of the Constitution, the principles of responsible government are fundamentally undermined,” Donaghue wrote. “Neither the people nor the Parliament can hold a Minister accountable for the exercise (or, just as importantly, the non-exercise) of particular statutory powers if they are not aware that the Minister has those powers.”
In other words, a minister can’t be held properly accountable or responsible if people don’t even know they are the minister. Donaghue also noted that departments can’t be properly administered if their most senior public servants don’t know either.
“Responsible government is a key … principle linked to the text of the constitution,” Rubenstein says. “The extent to which a court would rely on the breach of that principle to find that something is unlawful is unclear.”
But, she says, if the gas case reached the High Court and this was argued, the court could take the view that the appointment’s secrecy impeded accountability so much that responsible government couldn’t be achieved.
“I think there is an argument that when responsible government is breached to the point that it is undermining of representative democracy, that might be a sufficient catalyst for a court to be more prescriptive of something being unlawful – because it is a significant breach of responsible government,” she says.
That could lead to a court ruling that the decision was not made constitutionally and was therefore unlawful.
A second key point Donaghue raises, and which Rubenstein cites to support her argument, revolves around the section of the constitution under which Morrison’s appointment was made. This is where the sloppy drafting issue comes in.
Section 64 gives the governor-general the power to appoint someone to “administer” a portfolio, including the departments within it and the legislation they cover. Section 65 provides a slightly different authority, to “direct” someone to “hold the office” of minister for specified portfolios.
Some constitutional lawyers argue, based on a range of previous High Court judgements, that only the s64 administrative power is required to fully operate as a portfolio minister, including taking unilateral decisions delegated to that minister alone.
But Donaghue’s advice raises the possibility – which has never been tested in the High Court – that the s65 power may also be necessary to properly hold the ministerial job and exercise those specific powers.
When Scott Morrison was appointed first to the Health portfolio and then to Finance, as the now-published documents show, he only sought the s64 administrative power.
A year later, when he obtained appointments in Industry, Home Affairs and Treasury, those documents added a reference to s65. The office of the governor-general’s official secretary has confirmed none of the documents were drafted by his office.
Donaghue’s advice revealed a twist – that those later documents were not drafted well enough to capture the s65 power properly.
He advises that they needed to say the governor-general was directing Morrison “to hold the office of” minister for the specified portfolios.
But in the two 2021 Morrison instruments, covering the three extra appointments, the words “to hold the office of” are missing.
What seems like a small technical point is, Donaghue says, crucial to whether the appointment under s65 is valid or not. And in the Morrison documents, he believes it is not.
Donaghue says that means adding the reference to s65 was irrelevant – because without the extra words, it could not convey the power.
Some constitutional lawyers say the s65 power is, itself, irrelevant.
That view is reflected in one of the recommendations from the 1988 Constitutional Convention – the conference convened to debate possible models for an Australian republic. It found that section 65 should be repealed, arguing it was “unnecessary”.
“The power to decide what Ministerial offices particular Ministers shall hold is, we think, implicit in the power to appoint Ministers,” the Convention recommendation said. That power comes from section 64.
But others, including Rubenstein, suggest Donaghue’s advice prompts a new question: was s65 essential to Morrison making a lawful decision?
The sceptics cite the previous court judgements that found s64 was adequate. The view relies in part on how a “minister” is described in the key piece of law that is the guide for reading and understanding all other legislation, the Acts Interpretation Act. That act suggests the administrative power is enough.
But Donaghue’s advice hints that it might not be. He focuses significantly on the words missing from the Morrison instruments and suggests there is a difference between administering a portfolio and holding an office.
Whether or not Morrison’s gas decision was lawful also potentially depends on the specific wording in the Offshore Petroleum and Greenhouse Gas Storage Act, under which he made the decision.
It provides a decision-making power for “the responsible Commonwealth minister”.
Rubenstein says Morrison “is identified as having responsibility for administering the department but not being the ‘responsible’ minister”, arguing this is because he didn’t have the s65 power – the point that is contested among legal minds and as yet untested in court.
“That then raises a question as to whether he had the power under the act to make the decision because the act specifically refers to the ‘responsible’ minister, and he wasn’t ‘the responsible minister’.”
If her interpretation is right, either through the argument around a breach of responsible government or the s65 point – something only the court could decide – then the same point could apply to Morrison’s power in the Health portfolio. That bestowed a very specific power on the Health minister alone, to invoke the Biosecurity Act during the Covid-19 pandemic. And that, in turn, might mean Morrison never held the very power that was the given reason for wanting the extra appointments in the first place.
In a key 2001 case known asRe Patterson v Taylor, the High Court found that a parliamentary secretary within the Immigration portfolio, Senator Kay Patterson, had the same decision-making power under the Migration Act as the minister – and that there could be more than one minister at once.
But Rubenstein points to a crucial difference between the circumstances in that case and the ones in which Morrison made his decision.
Kay Patterson had been appointed under both sections 64 and 65, with the correct “hold the office of” wording. Further, the act under which she made the decision only specified that the decision-maker be “the minister” and nothing more precise.
Rubenstein argues the addition of the word “responsible” in the gas legislation may set a higher test – such as the proper addition of the s65 direction – to lawfully use the power.
To the suggestion that the change in wording between Morrison’s 2020 and 2021 appointment documents is irrelevant, she notes it is unlikely to have happened for no reason.
“There must have been a concern that a reference to s65 was needed, for the prime minister to have the power he was wanting,” Rubenstein says.
The Saturday Paperasked three other constitutional lawyers what they thought of Rubenstein’s arguments. One agreed she made extremely valid points and could well be correct.
Another was unsure because the High Court had never been asked to rule on the importance of section 65.
The third noted that but doubted it was relevant and believed the s64 power was enough.
“There’s definitely an argument,” Rubenstein insists, adding the caveat that having incomplete powers “has no consequence if no decisions were made under those areas”.
The High Court does not hear theoretical points of law. It will only hear cases in which the use of a law has had actual consequences. Something is required to have happened for it to become involved.
The gas decision is the consequence that enlivens the debate in this case.
Morrison issued a statement in the wake of Donaghue’s advice, defending his record and saying he would co-operate with any “genuine” inquiry. He wanted it to also examine the role of the states and territories during the pandemic.
Former prime ministerMalcolm Turnbullcalled for the inquiry to include the role of the governor-general. David Hurley acted on Morrison’s advice as constitutionally required, but it’s unclear whether he pushed back or suggested either the secrecy or the appointments themselves were unwise.
Last week, Hurley’s spokesperson issued a statement saying he had no reason to think the appointments “would not be communicated”.
Senior members of the now opposition are distancing themselves but have accused the Albanese government of “a political witch-hunt”.
Frontbencher Stuart Robert, a close friend of Morrison, noted Donaghue found the appointments were validly made and suggested that should be the end of the matter.
But that legal advice is raising at least as many questions as it answered.
This article was first published in the print edition of The Saturday Paper on August 27, 2022 as "Exclusive: Morrison may have acted unlawfully in secret ministry".
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