Constitutional shenanigans Down Under
I’ve sometimes observed in the past that the Canadian press does not follow political affairs in Canada’s sister Dominions as closely as we ought. But I don’t think I have ever felt this as strongly as I do now — thanks to this month’s controversy in Australia over incredible constitutional shenanigans perpetrated by Scott Morrison, the country’s Liberal prime minister from 2018 until May of this year. A couple of weeks ago, it was revealed that PM Morrison had, on a series of occasions between March 2020 and May 2021, asked the governor general to appoint him co-minister for several portfolios, including health, finance, and resources.
What’s extraordinary about this is that the appointments were carried out in secret and never gazetted; even the person who was pretty sure he was Australia’s (only) finance minister throughout the period, Mathias Cormann, was never told. Morrison says he had a need to centralize power during the COVID-19 pandemic, but he did use his position as secret co-minister of resources to thwart a controversial offshore oil project that the department was going to wave through.
Your reaction to reading the phrase “secret co-minister” should be the same as mine in typing it: doubt about your sanity! Yet it is all real. The new Labor government of Australia asked its solicitor-general, constitutional lawyer Stephen Donaghue, for an initial legal opinion on Morrison’s creative multiplication of a first minister’s powers. Donaghue’s opinion was released to the Australian public on Tuesday; it ought, indeed, to be of interest to the whole of the Commonwealth.
Donaghue had to admit that no explicit provision of the Australian constitution had been touched by Morrison’s bizarre activity. Morrison had already been formally sworn into cabinet as prime minister, so there was no technical need for him to repeat the necessary oaths. The G-G merely had to create a written “Instrument of Appointment,” which he was not obliged to gazette. Or tell anybody about.
An official “Ministry List” of cabinet duties had been supplied to parliament, and it was never updated to reflect Morrison’s intrusions into his colleagues’ departments. This would raise the question of whether Morrison had actively misled Parliament … but it turns out that when Morrison became prime minister in 2018, a textual footnote at the bottom of the printed list had been updated immediately to read “Ministers are sworn to administer the portfolio in which they are listed under the ‘Minister’ column and may also be sworn to administer other portfolios in which they are not listed.” This is interesting because it suggests Morrison had thought of the Morrison Strategy before COVID-19 existed on Earth. But it lets him off the hook for actually fibbing to Parliament.
Donaghue, having covered all this ground, concludes that Morrison’s secret appointments were legally valid. The only tiny problem with them is that they totally annihilate the core principle of responsible government. Parliament and the people cannot very well hold ministers to account if they are not told, and have no way of finding out, who the ministers are.
Donaghue is careful not to suggest any wrongdoing on the part of the governor general, who must always act on ministerial advice, but he never wrestles with the question whether the G-G had the option of defying the secrecy requested by Morrison. The scandal has helped give Labor an especially sweet honeymoon in office, if pollsters are to be believed, and Aussie republicans are trying to make the fanciful argument that an elected Australian president would never allow such a thing. (You know how it goes. When a viceroy acts against the politicians, republicans say he’s an undemocratic tyrant; when he behaves like their house pet, republicans whimper for a strong, independent president.) There are suggestions that Morrison should resign the parliamentary seat he still holds.
So could something of the sort happen here? Our layman’s impression, we regret to say, is that the answer is “Yes, obviously.” The written part of Australia’s constitution actually has specifications for the existence of a national cabinet and the requirements for the creation of ministers. Ours doesn’t: it invests the bossing of Canada in a governor general who has a Privy Council to “aid and advise,” and is silent on such hypothetical fauna as “ministers” or “cabinets.”
This implies that even the bare explicit protections that Morrison was able to slalom around are weaker here. Only our strong common commitment to the concept of “responsible government,” pioneered by Canadians through strife and bloodshed, protects us from such an unfathomable seizure of power. How, indeed, can anyone aware of the Morrison scandal help asking the question … has it already happened here on some occasion of which we weren’t informed?
THEY TOTALLY ANNIHILATE THE CORE PRINCIPLE OF RESPONSIBLE GOVERNMENT.