The Scott Morrison ministerial self-appointments saga is ‘unprecedented’. What can be done to stop a repeat?

Similar to cricket, there are rules and etiquette to be followed in politics.
That’s the view of one constitutional expert who likened the ongoing controversy where former prime minister Scott Morrison secretly appointed himself to a number of ministries to the sport.
Professor Anne Twomey, a constitutional law expert at the University of Sydney, said that while taking on the roles without informing the public, his cabinet and even at times, the minister in the role he was assuming, was constitutional, his actions didn’t follow the agreed upon way of doing things.

“A gentleman, a good chap follows the rules of cricket and that’s the expectation that there was here. But now that we’ve seen that that expectation can be defeated, it is probably a good reason to change the system,” she said.

When he was prime minister, Mr Morrison appointed himself to the finance, treasury, health, home affairs and resources portfolios at different times during 2020 and 2021.
Defending his actions at a press conference on Wednesday, Mr Morrison said his actions were taken during “a crisis” in reference to the beginning of the COVID-19 pandemic.
“With an understanding of the expectation of public responsibility singularly directed at the prime minister, I believed it was necessary to have authority, to have what were effectively emergency powers, to exercise in extreme situations that would be unforeseen,” he said.
“That is what I did in a crisis.

“The fact that ministers were unaware of these things is actually proof of my lack of interference or intervention in any of their activities.”

What does the constitution say?

Professor Twomey said the Australian Constitution is not very explicit about executive power.
“When it came to the executive government, they just didn’t put a lot of detail in there,” she said.
“They trusted politicians, and they trusted in a system of conventions and practices that had been built up.”

Governor-General David Hurley has confirmed he swore Scott Morrison into multiple portfolios without an official ceremony.

“If that’s the case, that would make it constitutionally valid,” Professor Twomey said.
She said there are no laws in Australia that state such appointments must be made public.
“We don’t have express laws saying that you have to make these things public, but we do have expectations of transparency and a system of responsible government, that people should know who the relevant ministers are.

“So the problem that’s arisen in this particular case is primarily the secrecy involved and in particular, not giving the relevant minister involved notice of what was happening, not consulting the cabinet and not letting the public know.”

Scott Morrison has said his actions were taken “in extraordinary times.” Source: AAP / Mick Tsikas

How a good outcome could result from the Scott Morrison saga

Professor Twomey said changes to the constitution would not necessarily have to be made to put a stop to such actions being repeated in the future.
“I think it would be easier and more appropriate to make changes to the laws so we could make laws that said that changes to ministerial appointments needed to be notified on the Federal Register of Legislation would be pretty easy.”
She said there was also a need to improve transparency about which minister within a portfolio exercises power.
“So you might have two or three or four ministers or assistant ministers exercising power within a portfolio, and it’s quite opaque as to which ones have particular power in relation to particular provisions.

“I think that cleaning that up and making it very clear to the public who is responsible for exercising executive power would be actually a really good outcome coming from this debacle.”

Unprecedented actions

Professor Donald Rothwell, from the Australian National University’s College of Law, said he was not aware of this type of action taking place in modern Australian history.

“There was a very prominent instance that arose with the initial days of the Whitlam government back in 1972 but that was very much a temporary measure until such time as the government got underway,” he said.

Following more than two decades of Coalition rule, Labor was elected to government and Gough Whitlam and deputy leader Lance Barnard split the government’s portfolios between them for a period of two weeks before the rest of the government was sworn in.

“The revelations [about Mr Morrison’s actions] on the other hand, are really quite exceptional and they’re quite distinctive from the other examples that have been well known about,” Professor Rothwell said.

Accusations of ‘breaching democratic norms’

At the height of the pandemic, Transparency International Australia was among groups that urged government decision-makers to be transparent and accountable to mitigate heightened risks of corruption.
“It appears now that we were also a country where the pandemic emergency was used as an excuse to breach democratic norms,” Transparency International Australia CEO Clancy Moore said.
He called for the mechanisms that allow such appointments to occur without transparency to be changed.
“We need to close the loopholes that lead to democratic breaches, conflicts of interest,” Mr Moore said.
“The public has a right to know who is ultimately responsible for the decisions made in these portfolios, and who we hold to account.”

Prime Minister Anthony Albanese is expected to receive advice from the solicitor-general regarding the matter on Monday.

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