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What did the Solicitor General’s opinion on Scott Morrison’s decision to advise the Governor General to appoint him to administer the Department of Industry, Science, Energy and Resources mean and what might it say about the health of democracy in Australia?
Opinion By Jackie Pearson
Acclaimed journalist and best-selling author Bob Woodward in his critique of former American president Donald Trump, Rage, refers to insights made by Trump’s son-in-law, Jared Kushner, into the president’s character.
In Rage Woodward tells how Kushner, in an effort to educate others about how to understand Trump, referred to a book by Scott Adams called Win Bigly: Persuasion in a World Where Facts Don’t Matter.
“Adams explains in Win Bigly that Trump’s misstatements of fact are not regrettable errors or ethical lapses but part of a technique called ‘Intentional Wrongness Persuasion’. Adams argues Trump can invent ‘any reality’ for most voters on most issues and ‘all you will remember is he provided his reasons, he didn’t apologise and his opponents called him a liar like they always do’.”
“Controversy elevates message,” Kushner said but his character assessment, according to Woodward, established Trump as intentionally “crazy, aimless, stubborn and manipulative”.
Did Morrison take a page out of the Trump play book when he decided to instruct the Governor General to appoint him to administer various departments without telling his cabinet, parliament or the public?
Accepting the premise that truth doesn’t matter to the modern leader, even a god-fearing Pentecostal modern leader, Scott Morrison’s memory lapses on radio over how many and which departments he had the Governor General appoint him to administer do look like a classic case of the Intentional Wrongness Persuasion technique.
Now hold that thought as we examine the meaning of the advice from Solicitor General Stephen Donaghue QC to Prime Minister Anthony Albanese, released in full on August 22. The Solicitor General’s opinion is legalistic and mechanical – not exactly bedside reading – but it does contain some interesting statements that should require a deeper examination of Morrison’s actions.
In April 2021 when Scott Morrison wrote to the Governor General to recommend that he appoint him to administer the Department of Industry, Science, Energy and Resources, Morrison’s explanation was that the appointment would allow him to be the responsible minister for DISER “if and when required”.
Morrison even sent David Hurley a pro-forma with space to sign his name and the words: “I, David John Hurley, Governor-General of the Commonwealth of Australia, pursuant to sections 64 and 65 of the Constitution hereby direct and appoint [Mr Morrison] a member of the Federal Executive Council to administer the Department of Industry, Science, Energy and Resources.”
Hurley complied with the Prime Minister’s recommendation.
Prior to writing to GG Hurley, the Prime Minister, according to the Solicitor General’s opinion, had received advice from the Department of Prime Minister and Cabinet (DPM&C) that he didn’t need to swear an oath of office, so he didn’t.
We learn the DPM&C took no further action. It did not publish the Instrument of Appointment once signed off by the GG. It did not change the Ministries List which is tabled in parliament or publish the appointment in the Government Gazette. The Solicitor General said he had no advice as to whether Morrison had instructed DPM&C to take no further action or whether someone else had made that decision.
The Donaghue advice also makes it clear that gazettal, publication and announcement of a ministerial appointment are not needed to make the appointment valid and legal. Morrison’s actions were lawful.
Section 64 of the Constitution gives the Governor General the power, according to Donaghue’s opinion, to appoint more than one minister to administer any given department and this is common practice via the appointment of junior ministers or parliamentary secretaries.
The Solicitor General’s opinion then points to media commentary suggesting Keith Pitt (National Party Minister for DISER) didn’t learn about Morrison’s appointment for months. The cabinet as a whole, the parliament and the public were not aware of the appointment until it was recently released in a book by News Limited journalists.
Morrison was appointed by the Governor General to administer four other departments between March 2020 and May 2022. They were not made public and were not known to the department’s Ministers or the Department Secretaries.
According to the Australian Constitution, Morrison’s appointment to DISER was valid and legal. In fact, the Governor General would not have had grounds to refuse the request and there was no obligation for it to be made public.
That said, the fact 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 Chapter 2 of the Constitution”, according to the Solicitor General.
His opinion makes it clear that he believes Morrison’s actions, accepted without challenge by the GG and the DPM&C, were not in the best interests of the conventions of responsible government.
Donaghue explains that this is the case because it is impossible for the parliament and the public to hold ministers to account for the proper administration of departments if they don’t know who those ministers are.
Responsible government
According to the Solicitor General, the High Court has defined Chapter 2 of the constitution as providing for a system of responsible government: “a system by which the executive is responsible to the legislature and, through it, to the electorate”.
His opinion tells us that responsible government is “a concept based upon a combination of law, convention and political practice” and that the conventions and practices are enforced politically rather than legally.
Morrison’s actions clearly break long-standing conventions and practices particularly that of publishing in the Government Gazette: appointments to the Executive Council; establishment, abolition or renaming of departments; and changes to the offices held by ministers. Donaghue does concede that “appointments to administer” are not generally published. Could that be because they are not generally made?
Ministry lists
Donaghue’s opinion in relation to Ministry Lists is revealing. They don’t usually include information about which departments are administered by each Minister. He says the presentation of information in Ministry Lists is deficient to clearly show appointments under Section 64. He uses the example of the Ministry List from the Second Morrison Ministry published 8 October 2021 to demonstrate this.
And this is where things get interesting. Donaghue says Ministry Lists usually come with a footer than enlightens the parliament and the public about who is responsible for what.
Since 28 August 2018, four days after Mr Morrison became Prime Minister, the wording of the footer to the Ministry List has changed and includes the words “…Ministers are sworn in to administer the portfolio in which they are listed under the ‘Minister’ column and may also be sworn to administer other portfolios in which they are not listed.
Donaghue underlined the last phrase in his written opinion. He said it may have been included to ensure that the Ministry List did not mislead parliament.
“The words contemplate an apparent practice whereby Ministers may be appointed to administer one or more departments of state without those appointments being published (at least in the Ministry List),” Donaghue says. “The point is starkly illustrated by the fact that Mr Morrison’s name did not appear in the Ministry List published in October 2021 with respect to any of the five departments that he was appointed to administer between March 2020 and May 2021.”
As a result the Solicitor General concludes that there was no way the public could discern from the Ministry List or anywhere else, that Morrison had been appointed to administer DISER or any of the other four departments.
“There was likewise no way of knowing whether any other ministers had also been appointed to administer additional departments without that being mentioned in the Ministry List.”
Could the change to the Ministry List footnote have been deliberate to pave the way for Mr Morrison or other Ministers to be appointed to administer departments without the knowledge of the parliament or the public? Whose idea was it?
Did the DPM&C advise the Prime Minister to go down this path and, if so, why? Or was the change to the footnote simply a “cover all” to prevent the parliament from being misled? If the latter, it didn’t work. The parliament and the public were hoodwinked.
The future
Three points from the Solicitor General’s advice to the Prime Minister indicate the need for a broader inquiry. The first and most important is the concept of responsible government. The parliament and the public need to know, at all times, which Minister is responsible for what department. If there is more than one minister then the parliament and the public have the right to know how ministerial responsibilities are shared or divided.
The second reason for further inquiry is that even though there are reasons for the Constitution to be flexible, in this instance it has given the Prime Minister every opportunity to act with secrecy and Morrison did not act in isolation. The Department of Prime Minister and Cabinet issued advice and then fell silent. Why?
The third goes to the powers of the office of Prime Minister. Whilst the Governor General is meant to act on the advice of the government of the day, surely the Constitution needs to be prescriptive enough to ensure that the principle of responsible government cannot be overturned or trashed by any one individual with a pragmatic lust for power greater than their respect for the conventions and practices that uphold responsible government.
The difference between lawful and responsible behaviour, in this instance, is cavernous. Morrison has not apologized. He has explained his actions and his opponents have called him dishonest. He wants forgiveness for his misstatements of fact, regrettable errors, ethical lapses.
How close has Australian democracy come to falling victim of Intentional Wrongness Persuasion?
What you can do
Read the Solicitor General’s advice
Learn about the Australian Constitution
Ask questions of your local MP
