In a statement yesterday, a spokesperson for His Excellency the Governor-General of Australia David Hurley confirmed reports that, during the height of the response to the COVID pandemic in 2020, he had accepted advice from then-Prime Minister Scott Morrison to secretly appoint him to various ministerial portfolios.
This post discusses the legal provisions and political conventions governing appointments in situations like the one that has come to light, the usual procedure for this situation available under federal law, and international comparisons for a Minister acting for another Minister. The post concludes with a normative discussion about what should have been done instead.
NB: This post is not legal advice and should not be relied upon as such. If you require legal advice, contact a lawyer in your jurisdiction.
The specific appointments that have generated considerable discussion involve Morrison being authorised to act for the Health Minister and, at a later time, being formally sworn by the Governor-General to at least four portfolios including the finance and resources portfolios. The latter arrangements were apparently made by Morrison without his cabinet colleagues’ knowledge.
Reportedly, the appointment to the health portfolio was to ensure that Morrison could potentially deputise for the then-Health minister, Greg Hunt, in the exercise of the extraordinary emergency powers created by the Biosecurity Act 2015. The media reports suggest that this was done with Mr Hunt’s approval and suggest that it was done by an administrative instrument under a plan devised by Christian Porter, the then-Attorney-General. (This plan was possibly achieved under the Acts Interpretation Act 1901, detailed later).
Morrison was appointed into the finance portfolio, at that time controlled by Finance Minister Mathias Cormann, but so far there have been no reports that Morrison used any of the powers that such an appointment would make available to him.
It was reported that Morrison had himself appointed into the resources portfolio in order overrule Pitt on a decision relating to a controversial and politically risky gas exploration project off the New South Wales coast called PEP-11.
Has this ever happened before?
No. But there have been comparable situations in both Australia and other Westminster system countries.
As briefly mentioned in a previous post, while serving as the Resident Minister in London in 1932, Stanley Bruce was given the title minister without portfolio by then-Prime Minister Joseph Lyons. Despite the title, the press at the time saw it as a promotion that would see Bruce serve as “second in charge for every Commonwealth department” despite Bruce having taken up residence in the United Kingdom. This appointment was no secret and was made before the events of 1975 after which the Governor-General’s powers would be more closely scrutinised and considered.
In Canada, various ministers throughout the ages have become known jocularly as the “minister for everything” because they have been given wide-reaching responsibilities. This includes current deputy prime minister Christiya Freeland and former railways minister Clarence Howe, both of whom accumulated significant power during national crises (COVID and WWII respectively). However, Howe only ever held his singular portfolio for railways and Freeland’s appointments to new portfolios were made very publicly. Her appointment as Finance Minister came in the aftermath of her predecessor’s involvement in a bizarre ethics scandal.
Ministers in Australia and elsewhere routinely ask each other to act in their place when they go overseas or on leave. One legal mechanism for this available in Australian federal law is outlined later in this post.
What about other jurisdictions?
Australia is seemingly unique amongst the Westminster-system countries as legally and constitutionally requiring Ministers to be appointed to administer specific departments. For the most part, in the other jurisdictions, the division of responsibilities between departments and their ministers is left to convention.
British law and the New Zealand constitution provide that Ministers in those jurisdictions can, in almost all situations, act for each other without a formal appointment as a Minister in a given portfolio.
British ministers, who are mostly appointed as Secretaries of State, Ministers of State or Lords of the Treasury, can (with limited exceptions) act on behalf of each other without needing to hold an official appointment because most laws grant powers to “the Secretary of State”, “the Minister”, or “the Treasury” without specifically naming a minister. (see schedule 1 of the Legislation Act 1978 (UK) and the Cabinet Manual, page 24).
Section 7 of the Constitution Act 1986 (NZ) authorises any Executive Councillor (effectively, any Minister) to perform any function, duty, or power of a Minister of the Crown, whether or not the law creating the power is in their portfolio.
In Canada, the Prime Minister can already act on behalf of any minister and would not need to be appointed into their other ministers’ portfolios, secretly or otherwise. Though, normally the Prime Minister has a set list of acting ministers to turn to. (Privy Council Office of Canada, page 5)
The usual practice in Australia
Ministers are appointed by the Governor-General, on the advice of the Prime Minister, under section 64 of the Constitution to “administer such departments of State of the Commonwealth the Governor-General may establish”. The text of the section does not provide for what happens if someone else needs to act for a minister temporarily, that is left to Parliament.
The Governor-General creates government departments by means of an Administrative Arrangements Order (or the “AAO”) issued on the advice of the Prime Minister of the day. The AAO lists which laws and policy matters each department is responsible for.
As in Britain, most Commonwealth legislation confers power on “the Minister” rather than a specific minister listed by title. Where this is the case, item 1 of the table in section 19 of the Acts Interpretation Act 1901 (Cth) (“AIA”) provides that all of the Ministers administering the department which is responsible for the law in question, as listed in the AAO, has the power conferred by that law.
Unlike Canada’s prime minister, and like every other Australian minister, the Australian Prime Minister only has power (in that capacity) over the portfolio of laws and policy matters assigned to their own department, the Department of Prime Minister and Cabinet (“PM&C”).
The power they hold outside of this portfolio, and their mandate to hold office and advise the Governor-General in the first place, largely comes from their leadership of the government parties in parliament rather than from legal authority.
As mentioned in the first section, Australian government ministers frequently take leave, go overseas, or otherwise become unavailable to carry out their functions or use their powers. The AIA provides a mechanism, at section 34AAB, which allows Ministers to authorise another Minister or executive councillor to carry out their duties. An excerpt from the section is set out below.
34AAB Minister may authorise others to perform functions or duties or exercise powers on his or her behalf
(1) A Minister (the authorising minister) who administers […] an Act or a provision of an Act may authorise:
(a) a Minister who does not administer the Act or provision; or
(b) a member of the Executive Council who is not a Minister;
to act on behalf of the authorising Minister in the performance of functions, duties, or the exercise of powers, that the authorising Minister may perform or exercise under the Act or provision.
[Subsection (2) clarifies that an authorisation allows the Minister to exercise all the powers, functions, duties, etc of the authorising Minister.]
[Subsection (3) allows the authorising Minister to either choose a time period for the authorisation to have effect or to leave it in effect until they leave office.]
[Subsections (4) and (5) provide for how the authorisation can be revoked.]
[Subsection (6) states that the authorisation power created by this section does not affect similar powers that might be available under other laws.]Acts Interpretation Act 1901 (Cth), s 34AAB.
As then-Attorney General Christian Porter no doubt pointed out, these authorisations can be made without the Governor-General’s intervention.
The documents produced under this section are not statutory instruments and, as a result, s 34AAB does not require the authorisation document’s publication in the Gazette or Federal Register of Legislation. However, in many cases where a Minister is acting for another, some kind of public statement is made at some point (see here for an example). These documents could also fall within the scope of a request under the Freedom of Information Act 1982 (Cth) and would be discoverable in a court case where the acting Minister’s powers were questioned.
An example of an AIA s 34AAB authorisation that has been published in the Federal Register of Legislation is displayed below.
It needs to be stressed here that the AIA s 34AAB power is only available where the authorising Minister explicitly writes a document authorising the other Minister to carry out their functions. This power would be inapplicable to the instances where Morrison was appointed minister for finance and resources without the ministers’ knowledge. In those instances, it was confirmed that he sought an official appointment from the Governor-General.
Can the Governor-General secretly appoint Ministers?
Yes, though as mentioned it seems to be entirely unprecedented.
Contrary to popular belief, the text of section 64 of the Constitution, does not require that appointments be gazetted or otherwise announced to the public. Where a Gazette notice is published announcing appointments, it is done so explicitly “for general information” purposes rather than by lawful requirement.
Most swearing-in ceremonies in recent years have been accompanied by (at the very least) the publication of a Ministry List or similar document by PM&C. The List clusters the Ministers into rows on a table based on what department they are responsible for.
Concerns over conventions
It is the fact that Mr Morrison opted to be substantively appointed by the Governor-General in secret, rather than simply requesting that his peers authorise him to act on their behalf, that is so strange. It is strange because it defies all known conventions and norms as to how a responsible ministry should work.
While Hurley could argue that he was bound by convention to accept Morrison’s advice as prime minister to make the appointments, it could equally be argued that he was entitled to deny Morrison’s request, at least until he could get his own legal advice as to alternative, more conventional options.
There is a risk that Morrison’s behaviour, and Hurley’s acceptance of it, could be relied upon by a future government to justify previously unjustifiable behaviour. These appointments themselves becoming a convention in crises comparable to the COVID pandemic or controversies like the PEP-11 project.
Consider for a moment that Sir John Kerr’s dismissal of the Whitlam government and appointment of Malcolm Fraser in 1975, while extremely controversial, was not unprecedented. In 1932, the same year Lyons appointed Bruce as minister without portfolio, New South Wales Governor Philip Game suddenly dismissed the state premier Jack Lang.
Ministers are supposed to be responsible to parliament and the public, both collectively and for their individual executive actions. Secret appointments like this undermine that convention, since they create uncertainty as to who is responsible for a decision.
The PEP-11 decision is a prime example. In 2021, Morrison publicly said he made the decision to kill PEP-11 “as the Prime Minister”, not in his hitherto unknown capacity as one of the Resources Ministers. The Prime Minister’s department does not ordinary have power over resources projects and his appointment to the resources portfolio was not yet publicly known.
What ought to have been done?
At the time Morrison advised the Governor-General to secretly appoint him to the portfolios, the Australian system already had remedies for the issues which Morrison sought to resolve by these unusual appointments. There was no reason to create a new solution, especially one which risked undermining public confidence and bringing the Governor-General into disrepute.
If Morrison had concerns about Ministers’ availability if they fell ill with COVID, Cabinet could have agreed on the use of the section 34AAB method to create a buddy system of sorts.
If Morrison disagreed with Pitt’s decision on PEP-11, he should have sacked him or, at the very least, brought it to Cabinet to discuss. If the Cabinet adopted Morrison’s position, Pitt would then be required to follow the cabinet solidarity convention, resign, or be sacked.
If Morrison believed that decisions under the biosecurity powers should be exercised with consultation amongst his ministry, he should have convened Cabinet to enable that consultation rather than going around it and having the Governor-General install him as the Minister for Everything.