Report of the inquiry into the appointment of the former prime minister to administer multiple departments

1. On 16 August 2022, following revelations in the media a few days earlier, the Prime Minister the Hon Anthony Albanese MP announced that the Hon Scott Morrison MP had been appointed to administer five departments of State in addition to the Department of the Prime Minister and Cabinet (“PM&C”) during his term as Prime Minister. Mr Morrison had been appointed to administer the Department of Health on 14 March 2020, the Department of Finance on 30 March 2020, the Department of Industry, Science, Energy and Resources (“DISER”) on 15 April 2021, and the Departments of the Treasury and Home Affairs on 6 May 2021. In other words, Mr Morrison had been appointed to administer six of the 14 departments of State. These appointments had not previously been disclosed to the Parliament or to the public.

2. I was appointed to conduct an Inquiry into the appointments. The Terms of Reference require the Inquiry to examine and report on: the facts and circumstances surrounding the appointments; the implications arising from the appointments; and the practices and processes that apply to the appointment of ministers to administer departments under section 64 of the Constitution and directions that ministers hold certain offices under section 65 of the Constitution. I am also asked to recommend any procedural or legislative changes which would provide greater transparency and accountability. I summarise my key findings below. A list of recommendations is at pages 7 and 8.

3. The Terms of Reference require me to have regard to the Solicitor-General's Opinion dated 22 August 2022 (SG No 12 of 2022). In that Opinion, the Solicitor‑General concluded that the appointment of Mr Morrison to administer DISER was constitutionally valid. The reasoning applies with equal force to each of the appointments. I approach my task upon acceptance of the Solicitor-General's analysis and conclusions.

Facts and circumstances surrounding the appointments

4. The appointments to administer the Departments of Health and Finance in March 2020 were made under the extreme pressure of responding to the onset of the COVID-19 pandemic. The then Attorney-General, the Hon Christian Porter MP, proposed Mr Morrison's appointment to administer the Department of Health as a check on the exercise of the Health Minister's extraordinary powers that are enlivened by the declaration of a “human biosecurity emergency” under the Biosecurity Act 2015 (Cth). Other senior ministers recalled that the justification for the appointment was a concern that, if the Hon Greg Hunt MP, the then Minister for Health, should become incapacitated, a senior minister should be seen to be responsible for the exercise of these powers. Mr Morrison's reason for taking the appointment appears to have been this latter concern.

5. The context for the appointment to administer the Department of Finance included the financial measures enacted in March 2020 to address the economic impact of the COVID-19 pandemic, in particular, the $2 billion Advance to the Finance Minister. The Department of Finance had only one Cabinet Minister administering it. Mr Morrison advised the Governor-General, His Excellency General the Honourable David Hurley AC DSC (Rtd), that the appointment would enable him to exercise the Finance Minister's significant powers were Senator the Hon Mathias Cormann, the then Minister for Finance, unavailable to do so. Mr Morrison also wished to have the capacity to make decisions about financial support for the States and Territories in “real time” in the context of meetings of the National Cabinet.

6. The appointments, however, were unnecessary. If Mr Hunt or Mr Cormann had become incapacitated and it was desired to have a senior minister exercise the Health Minister's expansive human biosecurity emergency powers or the Finance Minister's significant financial authorities, Mr Morrison could have been authorised to act as Minister for Health or Minister for Finance in a matter of minutes.

7. The appointments to DISER, the Department of the Treasury and the Department of Home Affairs are in a different category to the appointments to the Departments of Health and Finance. These appointments had little if any connection to the pandemic. Rather, Mr Morrison was appointed to administer these departments to give himself the capacity to exercise particular statutory powers. In addition to these three departments, the Prime Minister's Office (“PMO”) also instructed PM&C to prepare a brief for his appointment to administer the Department of Agriculture, Water and the Environment (“DAWE”). Subsequently, Mr Morrison decided not to proceed with the appointment to administer DAWE.

8. Mr Morrison only exercised a statutory power that he enjoyed by reason of the appointments on one occasion. This was the decision to refuse the applications concerning Petroleum Export Permit 11 (known as PEP-11). Mr Morrison had himself appointed to administer DISER to enable him to decide the PEP-11 applications. In relation to the other two appointments, Mr Morrison, through his legal representative, informed me that he “considered it necessary, in the national interest, to lawfully ensure that there would be no gap in the exercise of [powers related to ongoing matters of national security] if required, so as to guarantee the continuity and effective operation of Government”. This concern is not easy to understand. There were ministers, other than the then Treasurer and Minister for Home Affairs, who were appointed to administer those departments. In the event either senior minister were unavailable, there would be no “gap” in the exercise of their ministerial powers. And, as noted, Mr Morrison could readily have been appointed as acting Minister for Home Affairs or acting Treasurer in the event that either Minister was incapacitated.

9. The then Secretary of PM&C, Mr Phil Gaetjens, viewed the appointments to the Departments of Health and Finance as an appropriate safeguard should Mr Hunt or Mr Cormann have become incapacitated. In relation to the other three appointments, the covering briefs prepared by PM&C noted that it was “somewhat unusual” for the Prime Minister to be appointed to administer a department other than PM&C. In relation to the appointment to administer DISER, Mr Gaetjens considered that Mr Morrison had been made aware of the risk of successful legal challenge, in light of his public statements, before he determined the PEP-11 applications. Mr Gaetjens did not seek to speak with Mr Morrison and to advise him in stronger terms than those used in the brief against being appointed to administer DISER in order to make the PEP-11 decision.

10. The proposal to appoint Mr Morrison to administer the Department of Health was known to some senior ministers (including Mr Hunt), as well as some senior public servants (including the then Chief Medical Officer and the Secretary of the Department of Home Affairs). The appointment was not disclosed to the Department of Health. The fact of the appointments to administer the Departments of Finance, the Treasury and Home Affairs was not disclosed to anyone other than some members of the PMO and officers in PM&C involved in arranging the appointments. In particular, the appointments were not disclosed to the other ministers appointed to administer those departments or the departments themselves. The former Minister for Resources, the Hon Keith Pitt MP, learned of the appointment to administer DISER on 21 April 2021, however it was not until December 2021 that DISER itself was formally advised of the appointment.

11. In a public statement delivered on 17 August 2022, Mr Morrison justified the secrecy surrounding the appointments on two grounds. In relation to the failure to inform his ministers, Mr Morrison said that he “did not wish Ministers to be second guessing themselves or for there to be the appearance [of] a right of appeal or any diminishing of their authority to exercise their responsibilities”. In relation to the failure to inform the public, Mr Morrison said that “these were emergency, effectively reserve powers”, and there was a risk that the disclosure of the appointments “could be misinterpreted and misunderstood”.

12. However, in the context of my Inquiry, Mr Morrison informed me, again through his legal representative, that “neither [he] nor his office instructed PM&C not to gazette the appointments”, and that he “assumed the usual practice would apply following the relevant Ministerial appointments”. He subsequently explained that he understood the “usual practice” to be that the appointments would be gazetted. This understanding was not consistent with what I was told by PM&C, which is that the announcement of ministerial appointments is the prerogative of the Prime Minister.

13. It is difficult to reconcile Mr Morrison's choice not to inform his ministers of the appointments out of his wish not to be thought to be second guessing them, with his belief that the appointments had been notified in the Commonwealth Gazette (the “Gazette”). While few members of the public may read the Gazette, any idea that the gazettal of the Prime Minister's appointment to administer the Treasury (or any of the other appointments) would not be picked up and quickly circulated within the public service and the Parliament strikes me as improbable in the extreme. One might have expected Mr Morrison to inform the affected ministers of the appointments had it been his belief at the time that they were being notified in the Gazette. Finally, there is the circumstance that Mr Morrison was repeatedly pressed at his press conference on 17 August 2022 about his failure not only to inform his ministers but also to inform the public of the appointments. The omission to state that he had acted at all times on the assumption that each appointment had been notified to the public in the Gazette is striking.

14. While it is troubling that by the time of the 2021 appointments, Mr Gaetjens did not take up the issue of the secrecy surrounding them with Mr Morrison and firmly argue for their disclosure, the responsibility for that secrecy must reside with Mr Morrison.

15. Each of the appointments was made by the Governor-General acting on the advice of the Prime Minister, consistently with well settled constitutional convention. Some commentators argued that the Governor-General should have warned Mr Morrison that the appointments were unorthodox and encouraged him to make them public. I consider the criticism of the Governor-General to be unwarranted. Until recently, it was not the practice for Government House to arrange for notification in the Gazette of the appointment of an existing minister to administer a department of State when the appointment was made “on the papers” and not in association with a public swearing-in ceremony.

Implications of the appointments

16. Given the appointments were not disclosed to the Parliament or to the public, and that Mr Morrison did not exercise any of the powers he enjoyed by reason of his appointments apart from making the PEP-11 decision, the implications of the appointments are limited.

17. Mr Morrison does not appear to have attached any significance to the fact that, from the time of its making, each appointment operated in law to charge him with responsibility for the administration of the whole department. There was no delineation of responsibilities between Mr Morrison and the other minister or ministers appointed to administer the department. In the absence of such delineation, there was a risk of conflict had Mr Morrison decided to exercise a statutory power inconsistently with the exercise of the power by another minister administering the department. The 2021 appointments were not taken with a view to Mr Morrison having any active part in the administration of the department but rather to give Mr Morrison the capacity to exercise particular statutory power should the minister charged with responsibility for the exercise of that power propose to do so in a manner with which Mr Morrison disagreed, or fail to make a decision that Mr Morrison wanted to be made. In terms of the functioning of the departments this was as Dr Gordon de Brouwer PSM, Secretary for Public Sector Reform, observes “extremely irregular”.

18. As long as the appointments remained secret and Mr Morrison elected not to exercise his powers as the minister administering a department, it is not apparent that there was any impact on the structure of the ministry. Nevertheless, recourse to being appointed to administer multiple departments seems an exorbitant means of addressing Mr Morrison's concern about his ministers' exercise of statutory power in cases that were not subject to Cabinet oversight. Ultimately, he had the power to dismiss a minister if he considered the minister might exercise a power in a way that he, Mr Morrison, considered not to be conducive to the national interest.

19. Given that the Parliament was not informed of any of the appointments, it was unable to hold Mr Morrison to account in his capacity as minister administering any of these five departments. As the Solicitor-General concluded, the principles of responsible government were “fundamentally undermined” because Mr Morrison was not “responsible” to the Parliament, and through the Parliament to the electors, for the departments he was appointed to administer.

20. Finally, the lack of disclosure of the appointments to the public was apt to undermine public confidence in government. Once the appointments became known, the secrecy with which they had been surrounded was corrosive of trust in government.

Process of appointments under sections 64 and 65 of the Constitution

21. Appointments of ministers to administer departments of State under section 64 of the Constitution, and directions that a minister hold a particular office under section 65 of the Constitution, are made by the Governor-General on the advice of the Prime Minister.

22. Since Federation, Government House has arranged for notification in the Gazette of the names of the ministers who have been “sworn in” as members of a ministry at a public ceremony. In recent years, the notification in the Gazette has included the name of the minister and the office the minister has been directed to hold. While the office may serve to indicate the department the minister has been appointed to administer, the fact of the appointment to administer a department of State has not formed part of the notice. Following the “swearing in” ceremony, the Prime Minister will often issue a media release containing the names and offices of the ministers.

23. In some cases, where an existing minister is to be appointed to administer an additional department of State, the appointment will be made “on the papers”. Publication of the appointment in such cases is dependent on the issue of a media release by the Prime Minister.

24. Following the disclosure of Mr Morrison's appointment to administer additional departments of State, at the direction of the Prime Minister, PM&C and the Office of the Official Secretary to the Governor-General have agreed on a new protocol for the publication in the Gazette of all ministerial appointments and directions to hold office.

Recommendation 1

Legislation should be enacted to require publication in the Commonwealth Gazette or in a notifiable instrument registered on the Federal Register of Legislation as soon as reasonably practicable following the fact of:

1. the swearing of an Executive Councillor under section 62 of the Constitution;
2. the appointment of an officer to administer a department of State under section 64 of the Constitution;
3. the direction to a Minister of State to hold an office under section 65 of the Constitution; and
4. the revocation of membership of the Federal Executive Council, an appointment to administer a department, and a direction to hold an office, when effected by an instrument executed by the Governor-General.

The notice or notifiable instrument should include the name of the person and the date that he or she was sworn, appointed and/or directed, or the date that such membership, appointment and/or direction was revoked. It may also be convenient for a copy of the instrument to be included in the notification.

Recommendation 2

The authorisation of an acting minister for a period of two weeks or more should be published as soon as reasonably practicable in the Commonwealth Gazette or in a notifiable instrument on the Federal Register of Legislation.

Recommendation 3

A list of all acting arrangements should be published periodically on the Department of the Prime Minister and Cabinet's or each department's website.

Recommendation 4

A document identifying:

1. the ministers appointed to administer each department of State;
2. the offices the ministers are directed to hold; and
3. in the case of two or more ministers administering the one department, an outline of the division of responsibilities between the ministers

should be published on the Department of the Prime Minister and Cabinet's website.

Recommendation 5

A website concerning ministerial appointments should be established which contains explanatory materials and current and past records to enable the public to readily ascertain which minister is responsible for which particular matters.

Recommendation 6

All departments should publish a list of the ministers appointed to administer them on their website, and include in their annual report the name of all ministers appointed to administer the department in the reporting period.