In a report just released by the Department of Prime Minister and Cabinet, Stephen Donaghue found the then-prime minister had the power to appoint himself to a portfolio.
However, keeping this appointment secret “fundamentally undermined” the principles of a responsible government.
The report concluded changes needed to be made to ensure it does not take place again.
“Neither the people nor the Parliament can hold a Minister accountable for the exercise (or, just as importantly, for the non-exercise) of particular statutory powers if they are not aware that the Minister has those powers,” the report read.
“Nor can they hold the correct Ministers accountable for any other actions, or inactions, of departments.”
Morrison “could not be held accountable” for his actions by being sworn in secretly.
Prime Minister Anthony Albanese said the report is a “very clear critique” of the Morrison government. But he conceded there were limits to the legal advice.
“The solicitor-general obviously was not in a position to go through all of the history of this because evidence obviously wasn’t taken,” he said.
“This was just an opinion based upon the known details which are out there very publicly.”
Albanese said the release of the solicitor-general’s report should be considered a “one-off”.
Normally legal advice from the solicitor-general is kept private.
Albanese is now considering any future legislative changes to make sure ministers are no longer sworn in secretly.
“There is a need to ensure there is absolute confidence in our political system,” he said.
“We have a Westminster system of parliamentary democracy that relies upon conventions, it relies upon accountability and checks and balances in the system.
“Those checks and balances have been thrown out by the former government.”
All ministerial appointments will be published from now on, Albanese said.
There will also be an independent inquiry into the matter.
Governor-General had no discretion
The opinion also ruled that Governor-General David Hurley was not in a position to refuse to appoint the prime minister.
“The Governor-General has no discretion to refuse to accept the Prime Minister’s advice in relation to such an appointment,” he advised.
“Nor is there any constitutional or legislative requirement for notification of such an appointment as a condition of its validity, or for the Minister to subscribe another oath or affirmation following such an appointment.”
But Donaghue said the secrecy with which Morrison went about this was “inconsistent with the conventions and practices that form an essential part of the system of responsible government”.
Last week Morrison defended his actions in a 1300-word Facebook post, after it was revealed he had secretly sworn himself in as treasurer, health minister, home affairs minister, finance minister and energy and resources minister.
“The risk of ministers becoming incapacitated, sick, hospitalised, incapable of doing their work at a critical hour or even fatality was very real,” he wrote.
“As Prime Minister I considered it necessary to put in place safeguards, redundancies and contingencies to ensure the continuity and effective operation of Government during this crisis period, which extended for the full period of my term.”
Most of the ministers had no idea Morrison was shadowing them in the role.
“Ministerial briefs were not copied to me as Prime Minister in a co-Minister capacity, as this was not the nature of the arrangement,” he said.
“I also did not wish Ministers to be second guessing themselves or for there to be the appearance to be a right of appeal or any diminishing of their authority to exercise their responsibilities, as this was not the intention of putting these arrangements in place.
“I simply wanted them to get on with their job, which they did admirably and I am grateful for their service.”
Morrison has thus far refused to resign from his seat as the member for Cook.
- Scott Morrison appointments lawful, the Solicitor-General ruled, but actions “fundamentally undermined” the democratic system.
- The Solicitor-General has called for changes to stop this happening again.
- Anthony Albanese has announced a further inquiry into Morrison’s actions.
- The governor-general has been instructed to announce all ministerial appointments from now on.