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| Mr Morrison's Multiple Ministries Meme by Mr Morrison |
Below is my recent submission to the Inquiry into Mr Morrison's Multiple Ministries.
Submission to the Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments
Dr Michael de Percy
30th September 2022
Introduction
Thank you for the opportunity to provide comments to the Inquiry. My submission addresses two key issues as per the Terms of Reference, specifically:
b. examine and report on the implications arising from the appointments, including on: (iv) public confidence in government, and
d. recommend any procedural or legislative changes which would provide greater transparency and accountability.
Background
Former Prime Minister the Hon Mr Scott Morrison MP was governing during a period of unprecedented turmoil resulting from the COVID-19 pandemic. Australia’s circumstances required coordination between the Commonwealth and the state governments given the division of powers and often competing agendas in relation to the Commonwealth’s specific powers under s 51 for quarantine (ix) and immigration (xvii) and concurrent powers with the States for health, in particular. However, exclusive powers under s 52 allow the Commonwealth to make laws for the ‘peace, order and good government of Australia’ that technically override the States (for example, in NSW) to ‘make laws for the peace, welfare, and good government of New South Wales’ (s 5 of the Constitution Act 1902). The informal and imprecisely named National Cabinet established a public mechanism for ameliorating the political responsibilities for governing during the pandemic, resulting in different responses by state governments in relation to lockdowns and travel restrictions.
Nevertheless, unequal treatment of citizens on the basis of State of residency (s 117) was not pursued by the federal government. Mr Morrison navigated numerous constitutional, political, and electoral challenges through a nationally coordinated response using informal arrangements to suit the conditions of a global pandemic. In this regard, governing during a global pandemic calls for extraordinary measures not unlike those exercised during times of war. In previous wars, the Commonwealth’s defence powers under s 51(vi) have been applied broadly and even during peace time to include domestic matters vaguely related to defence such as the Snowy Hydro-Electric Power Act 1949. Mr Morrison’s decision to recommend the Governor-General to appoint Morrison to several ministries during a time of national emergency may be without precedent in procedure, but it is not without precedent in intent. Appleby (2014), for example, argues that the Rudd government’s response to the economic emergency created by the 2008 global financial crisis drew on the ‘nationhood’ executive powers (s 61) to implement unprecedented economic stimulus packages to address the challenges of the crisis.
The Solicitor-General’s (2022) legal advice to Prime Minister the Hon Anthony Albanese MP confirmed that Mr Morrison’s ministerial appointments were valid and there was no constitutional or legal requirement to publicise these appointments by either the Governor-General or the Department of the Prime Minister and Cabinet. However, the Solicitor-General went on to state that the ‘existing practices by which appointments under s 64 of the Constitution are notified to the Parliament and the public are deficient’ (Solicitor-General, 2022, p. 4). The Solicitor-General also stated that the ‘broad architecture or framework’ for exercising executive power outlined in Ch II enables a level of flexibility to ensure the constitution does not constrain the executive’s ability to govern, especially in unusual circumstances. My point is that during emergency situations, conventions and other ways of exercising executive powers are prioritised on the basis of the national interest and the political mood of the day. The Solicitor-General’s (2022, p. 12) opinion confirms the need for flexibility in practising responsible government while at the same time pointing out the inadequacies of the convention relating to the timely publishing of valid ministerial appointments.
Public confidence in government
Rather than rehash the key issues raised by the Solicitor-General (2022, pp. 14-18) in relation to responsible government and current practices in gazetting ministerial appointments, I suggest that the broader issue of public confidence in government is unlikely to reside in the minutiae of constitutional legal opinion. Studies (see for example Biddle and Gray, 2022) have indicated a trend of declining trust in government in Australia over the last several years and particularly during the pandemic. Yet comparative empirical research conducted by Grimmelikhuijsen et al. (2013) challenges the assumption that transparency necessarily leads to more trust in government. In particular, their research found that national cultural differences are an important independent variable in assessing whether transparency leads to increased trust, but also that ‘trust’ is a nebulous concept (Grimmelikhuijsen et al., 2013, p. 577), much like the concept of ‘public confidence’ as outlined in the terms of reference.
One commonly identified symbol of Australian political culture is the proverbial ‘pub test’, where Australian voters in conversation might consider the merits of a particular political action to be right or wrong or fair or not.
Given the current cost of living pressures in Australia, holding inquiries into past governments that have been duly defeated at an election is an emerging trend (by governments of all persuasions) that ignores the power of voters’ intentions. Mr Morrison’s government was defeated at the 2022 election in accordance with the intentions of Australian voters (within the bounds of the Australian electoral system) and to have the new government ‘throw salt on the wounds’ of the previous government, especially where nothing illegal has occurred, smacks of ‘sour grapes’ and a waste of time and taxpayers’ money while cost of living pressures are rising sharply with no realistic relief in sight. On balance, the Morrison government was removed by the people at an election, so to conduct an inquiry into a problem that has a readily available legislative remedy is more likely to reduce public trust in the new government than to affect public confidence in a government that had already lost the public’s confidence and was duly removed by voters at the ballot box.
Recommendations for procedural or legislative changes which would provide greater transparency and accountability
The federal executive has the ability to propose legislation to address the shortcomings of the ministerial appointment process, particularly in relation to publishing details of ministerial appointments by the Governor-General. To suggest that the position of the Governor-General have responsibility for publishing ministerial appointments unnecessarily politicises the position. To be sure, responsible government requires ministerial appointments to be publicised in a timely fashion, but the extraordinary circumstances in which the ‘nationhood’ powers were exercised in a time of unprecedented crisis hardly warrant the expense of an inquiry that will make recommendations that could have been reached by the government performing the normal role of governing in the public interest. The political nature of the inquiry process into previous governments concerning issues that were not illegal is more likely to damage public confidence than any act of a previous prime minister in contravening conventions that, particularly in this case, have no legal compulsion. The issue of governments overturning conventions provides the flexibility necessary for governing during extraordinary circumstances. At the same time, the 1975 constitutional crisis demonstrated that constitutional changes were necessary to ensure the convention of appointing stand-in senators was enshrined in constitutional law. Otherwise, and given the precedent established by governments of all political persuasions using the ‘nationhood’ powers to address the challenges of governing during times of crisis, the relatively minor detail of Mr Morrison’s unorthodox ministerial self-appointments, along with other issues, have already been redressed by voters at the ballot box.
To suggest that somehow the bureaucracy can instil public confidence by ‘flogging a dead horse’ is to devalue voters’ intentions and to mistrust the democratic process where the majority of voters, having lost confidence in the Morrison government and electing a new government, is not enough. Indeed, emergency situations provide legitimacy to the suspension of normal conventions, although the emergency powers of government and its impact on democratic practice is a contested space (Maclean and Huf, 2020, pp. 4-5). Given that nothing illegal occurred, Australian voters might rightly wonder whether every new government will hold inquiries into the otherwise legal actions of previous governments. Surely such a trend would damage public confidence in government more than past unorthodox and otherwise bizarre ministerial self-appointments by a prime minister who is no longer in power. The new government has the ability to legislate to ensure the convention is enshrined in law and it should do so, rather than continuing to focus on the previous government while citizens are grappling with rapidly rising costs of living. Ultimately, the people, and not the bureaucracy, hold the government to account. This point is often lost on the government of the day, but to the detriment of the democratic process and the sovereignty of the parliament, and therefore the people.
Recommendations
The unnecessary use of formal inquiries into previous governments does more to reduce confidence in government than a prime minister not following an otherwise reasonable convention in the midst of an emergency situation. Where nothing illegal has been found to have been committed, the problem is systemic and can be addressed by various measures. Given the precedent of not following a particular convention during extraordinary times of national turmoil, where that convention is designed to support responsible government, then the most rational solution is to regulate the convention, in this case, by legislation to formalise the convention as law. Alternatives such as developing regulations to make it the responsibility of (for example) the Department of Prime Minister and Cabinet to publish ministerial appointments creates a ‘grey area’ that relies on (in the case at hand) the prime minister to advise the department. Legislating a statutory requirement for the government of the day to advise the public of ministerial appointments is therefore the most adequate measure to ensure the recent situation does not occur again.
As with all legislation, the challenge is to ensure that the initial bill will receive bipartisan support to become law. Given the situation where ministers of the previous government were not aware that their portfolios were shared with Mr Morrison, the simplest solution to enshrine the convention in law would be best. This might be done as a bipartisan drafting committee or other mechanism that is focused on improving the procedure for ministerial appointments, as opposed to a political move to discredit the previous government that has already been removed by Australian citizens.
References
Appleby, G. (2014, 14 September). Explainer: Australia’s war powers and the role of parliament. The Conversation. <https://theconversation.com/explainer-australias-war-powers-and-the-role-of-parliament-31112>
Biddle, N. and Gray, M. (2022). Tracking wellbeing outcomes during the COVID-19 pandemic (January 2022): Riding the Omicron wave. Canberra: ANU Centre for Social Research and Methods. <https://csrm.cass.anu.edu.au/sites/default/files/docs/2022/2/Tracking_paper_-_January_2022.pdf>
Grimmelikhuijsen, S., Porumbescu, G., Hong, B., and Im, T. (2013). The Effect of Transparency on Trust in Government: A Cross-National Comparative Experiment. Public Administration Review. 73(4), pp. 575-586.
Hains, T. G., Smith, C., and East, R. (2021). MBS taskforce fails the pub test. Acorn, 34(1), E1-E3.
Mclean, H. and Huf, B. (2020). Emergency Powers, Public Health and COVID-19, Research Paper No. 2, August. Melbourne: Parliamentary Library & Information Service, Victorian Parliament.
Solicitor-General (2022). In the matter of the validity of the appointment of Mr Morrison to administer the Department of Industry, Science, Energy and Resources. SG No. 12 of 2022. <https://www.pmc.gov.au/sites/default/files/sg-no-12-of-2022.pdf>