Scott Morrison’s actions during COVID are being scrutinised. Photo: Screenshot.
Very few public servants knew about Scott Morrison’s power grab when he secretly appointed himself the minister over five departments in 2020 and 2021, but among those who did there was little pushback.
One senior lawyer in the Attorney-General’s department, however, raised concerns when the then prime minister sought power over the health portfolio.
David Lewis, a general counsel in the A-G’s department, described the move as ‘overkill’ when he was made aware of the plan in March 2020.
He was addressing Mr Morrison’s intention to become health minister to be able to exercise powers under the Biosecurity Act in the event the actual heath minister Greg Hunt became incapacitated or out of control at the height of the COVID pandemic.
“It does seem a bit like overkill as any Health portfolio minister will, under the protocol, need to consult the [Prime Minister] and other relevant ministers,” Mr Lewis wrote at the time.
“I don’t really see why we are trying to reinvent the process under the Act and usual cabinet government, but there you are.”
He subsequently repeated his concerns directly to the department head Chris Moraitis.
“The idea of having the [prime minister] exercise the emergency biosecurity powers seems unnecessary to me,” Lewis wrote.
“A junior health minister could exercise the powers if Mr Hunt were incapacitated. Under the protocols proposed, that junior minister would need to consult other relevant ministers including the [prime minister] before exercising the powers.
“In any case, I don’t imagine any junior minister would exercise these powers without consulting the [prime minister].”
The concerns were dismissed without the prime minister’s office being made aware of them.
They have been brought to light with the release of former High Court justice Virginia Bell’s report into the scandal, which saw Morrison take the reins of five portfolios – health, finance, home affairs, treasury, and resources – in most cases without the ministers holding offices aware of the move.
“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,” Ms Bell wrote.
Mr Morrison had alerted Mr Hunt and the chief medical officer Brendan Murphy to his intentions over the Health ministry, but neither was informed when the PM was actually sworn in as minister.
Then, it seems the power grab spiralled out of control, Morrison even contemplating a sixth ministry for himself (Environment), before deciding against it.
“The lack of disclosure of the appointments to the public was apt to undermine public confidence in government,” Justice Bell wrote in her report.
“Once the appointments became known, the secrecy with which they had been surrounded was corrosive of trust in government.”
The head of the prime minister’s department at the time, Phil Gaetjens, thought it appropriate for Mr Morrison to be appointed as health and finance ministers, but thought the other three appointments to be unusual.
Ms Bell regarded it as troubling that Mr Gaetjens did not resist the secrecy surrounding those appointments.
Mr Morrison continues to stand by his decision, saying the nation was in unchartered territory and extraordinary times.
But his successor Anthony Albanese, who instigated the Bell inquiry into the matter, has accepted all recommendations of the report.
“Where’s the apology to the Australian people who were clearly misled and weren’t told about the structure of their government?” the Prime Minister said.
“That is who we are accountable to.”
The Federal Government will now move a censure motion against Mr Morrison, after Cabinet agreed to take the action in this final sitting week of Parliament.
List of recommendations from Bell Report
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:
i. the swearing of an Executive Councillor under section 62 of the Constitution;
ii. the appointment of an officer to administer a department of State under section 64 of the Constitution;
iii. the direction to a Minister of State to hold an office under section 65 of the Constitution; and
iv. 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:
i. the ministers appointed to administer each department of State;
ii. the offices the ministers are directed to hold;
iii. 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.
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