Common(wealth) Knowledge #8: Are secret ministries constitutional?
A look into the facts surrounding the Scott Morrison portfolios scandal.
With Australia’s Solicitor-General, Stephen Donoghue, expected to deliver his report on Scott former Prime Minister Scott Morrison’s secret ministries tomorrow, this saga continues to be the biggest news story in Australia.
As always, it is 6 News’ mission with the Common(wealth) Knowledge series to explain Australian legal history and laws, especially constitutional law, without any of that confusing jargon used by lawyers.
With that in mind, we would like to bring you a special edition of the series to cut through all the confusion of the last week and explain some of the constitutional issues with the secret ministries.
Morrison had himself sworn into five ministerial officers between 2020 and 2021. He became Minister for Health on 14 March 2020, after the then-Minister for Health Greg Hunt agreed to Morrison being sworn in, reportedly because Hunt was worried that he may be incapacitated by Covid. 2 weeks later, Morrison became Minister for Finance on 30 March.
The following year, he became Minister for Industry, Science, Energy and Resources on 15 April 2021. Finally, he was sworn in as Minister for Home Affairs and Minister for Finance on 6 May 2021. Hunt was the only Minister to know that was sharing a portfolio with the Prime Minister.
This article will be split into two parts. In the first part, I will explore a couple of legal issues with Morrison’s actions. In the second part, I will answer some questions submitted to 6 News on Twitter.
Existing rules for delegation
One justification for Morrison being sworn into five portfolios, especially the Department of Health, was that a Minister may be unable to carry out their duties due to COVID-19. However, there are already provisions in place for this, although some context is necessary to understand why these provisions already existed.
Legislation passed by Parliament authorises various Ministers and employees of their Departments to carry out particular duties and make certain decisions. As Gageler J observed in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016), at , although Section 61 of the Australian Constitution officially vests executive power in the monarch, which can be exercised by the Governor-General, it “is and always was permitted to be exercised at a functional level by Ministers and by other officers of the Executive Government acting in their official capacities or through agents.”
One such example of this is Section 51 of the Biosecurity Act 2015 (Cth), a piece of legislation that has been important in Australia’s response to COVID-19. Section 51 allows the Minister for Health to issue ‘preventative biosecurity measures’ to control the spread of COVID-19. This allowed the Minister for Health to issue the Biosecurity (Human Coronavirus with Pandemic Potential) (Preventative Biosecurity Measures - Incoming International Flights) Determination 2021 (Cth), which was in force from 28 October 2021 until 20 January 2022, and imposed mask mandates and negative COVID-19 test requirements on all passengers and crew of international flights. As the secret Minister for Health, Morrison could theoretically have issued a Section 51 declaration.
Although Section 51 is an extreme example of the authority given to the Executive Government, the broad powers of Ministers and the need for a quick response to COVID-19 demonstrate why redundancies are necessary, to ensure that there is always a Minister who can wield these powers. There are two main ways that this can happen, other than the Minister being officially replaced.
Section 34AAB of the Acts Interpretation Act 1901 (Cth) is the first of the redundancies. It allows a Minister who administers an Act, meaning they have responsibilities and powers under it, to appoint another Minister to carry out their duties on their behalf. This means that if a Minister is incapacitated, they can appoint a temporary replacement. This is reinforced by Section 19(4) of the Acts Interpretation Act 1901 (Cth), which states that any reference to a Minister in an Act is also a reference to an Acting Minister, including one appointed under Section 34AAB.
The second method was addressed by the High Court in Re Patterson, Ex Parte Taylor (2001). It has become commonplace for a Minister to have an Assistant Minister. Under Section 65 of the Constitution, the initial number of Ministers of State was limited to seven; however, the Governor-General and Parliament could increase that. Under Section 4(b) of the Ministers of State Act 1952 (Cth), that number is now 30. However, under Section 4(a), up to 12 Parliamentary Secretaries, now usually known as Assistant Ministers, can be appointed too. In Re Patterson, the High Court was asked to consider whether Parliamentary Secretaries could carry out the duties and responsibilities of the Minister of State that they were responsible to. Section 64 of the Constitution states that Ministers of State are responsible for “adminster[ing] … departments of State.” The court held that Parliamentary Secretaries were, for the purposes of any legislation, able to exercise the powers of Ministers of State and administer the Departments. So, if a Minister was incapacitated with COVID-19, and that Minister had an Assistant Minister, they could continue to carry on administering the relevant Acts. It may also allow the Treasurer to act for the Minister of Finance if the latter is incapacitated.
In light of the provisions of the Acts Interpretation Act 1901 (Cth) and the decision in Re Patterson, it is evident that it was not necessary for the Prime Minister to assume other ministerial portfolios, let alone to do so in secret.
However, Re Patterson does raise an interesting question. Gleeson CJ, at , remarked on how both Australia and the UK allow for more than one Minister to administer a Department, without violating the principles of responsible government. Responsible government is part of the Westminster system of government, used by Australia and the UK, which ensures that Ministers are responsible to Parliament. This is why, under Section 64 of the Constitution, Ministers are drawn from the House of Representatives and Senate, rather than being independent of them.
Parliamentary committees also exist to monitor the government Departments, and legislation often requires Departments to provide reports to Parliament for the same reason. Returning to Gageler J in Plaintiff M68/2015, at , he said that the “broad powers of administration … [held] by the Executive Government and by officers and agents of the Executive Government is … susceptible of control by Commonwealth statute.” This is one of many checks and balances imposed by the separation of powers. For example, given the power of Section 51 of the Biosecurity Act 2015 (Cth), Parliament imposed a couple of specific limitations. Under subsection (6), the determinations cannot last more than 1 year until they need to be renewed, which will require review by Parliament. Subsection (7) also requires the Minister for Health to consult their State and Territory counterparts and the Director of Biosecurity before issuing a determination.
The reason why Morrison’s actions are problematic for the doctrine of responsible government isn’t that it meant there was more than one Minister administering a Department and Acts. Gleeson CJ, the more senior judge in the land as Chief Justice of the High Court, recognised that this was normal. Rather, the issue is the secrecy. It is impossible for a government to be accountable to Parliament and to the public if no one really knows who is making all the decisions. And this sets an alarming precedent.
Question 1: What are the legal implications for the Governor-General and monarch?
At this point, it is unclear whether the Governor-General, David Hurley, had been given all of the information about the appointments. The Governor-General appoints Ministers on the advice of the Prime Minister. Although this is officially just ‘advice,’ in practice it is considered to be binding. If Hurley had rejected the advice, there would likely be a much bigger constitutional crisis, similar to when John Kerr went against the advice of Prime Minister Gough Whitlam and dismissed him. In addition, especially with regard to the March 2020 appointments, Hurley may not have had any reason to suspect that Cabinet had not been consulted by the Prime Minister too. Especially given the fact that Morrison’s request would have likely gone through several bureaucrats first, rather than going straight to Hurley, he may have been just as uninformed as the Ministers holding those portfolios. Hurley has also said that he “had no reason to believe” that Morrison’s appointments would not be made public.
It’s unlikely that this situation would affect the Queen, but if it happened here, it could also happen in the UK.
Question 2: Can Morrison be sued for overriding the Minister for Resources on the Pep-11 decision?
Scott Morrison used his control over the Department for Resources through his secret appointment to reject an application for the Pep-11 gas drilling and exploration licence to be renewed, despite the fact that Minister Keith Pitt was supportive of the renewal and had been seeking a review of it. BHP Energy has lodged an application with the Federal Court of Australia for this to be reviewed. Under Section 39B(1) of the Judiciary Act 1903 (Cth), the Federal Court has the jurisdiction to hear cases involving “a writ of mandamus or prohibition or an injunction … against an officer or officers of the Commonwealth,” which means that the government would be compelled to grant the licence. The primary grounds for judicial review are procedural unfairness, the illegality of the decision, or the irrationality of the decision, although there are others.
Question 3: What powers did Morrison theoretically have the ability to use? How can these be compared to totalitarian leaders from history?
Any power that the five Ministers could wield, Morrison could also wield. This includes the broad-reaching powers of the Biosecurity Act 2015 (Cth) and the police powers held by the Minister for Home Affairs.
This is where the biggest issue lies. Unless action is taken to prevent this from happening again, it sets an alarming precedent. Fortunately, Morrison only exercised these powers once, with the Pep-11 decision. However, Professor Anne Twomey has raised this point: “But what happens in the future when someone who does have dictatorial-type inclinations says ‘hey, this has been done before. There is a way of doing this. It’s okay. It’s acceptable.’ and then goes in and starts taking over powers?”
The Australian executive is not a presidential system. Section 64 of the Constitution refers only to ‘Ministers’ being in the executive. There is no reference to the Prime Minister. Yes, the Prime Minister exists because of constitutional convention, which was established in the UK, but they should not have the same centralised control that a president has. Power is meant to be shared by the Ministers, not concentrated in one person. The Prime Minister is not like a president, the Prime Minister is only primus inter pares: first among equals.
What Morrison has done is probably not strictly unconstitutional; however, it goes against the established traditions and principles, like responsible government, and unwritten rules of constitutional convention. It is likely that the new government of Prime Minister Anthony Albanese will pass reforms to remove these loopholes, preventing it from happening again.
Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.
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