There was a clue to Scott Morrison’s secret prime ministerial incursion into government portfolios beyond his own, hiding in plain sight.
Along with past hints from Morrison himself, it floated to the surface this week in the wake of revelations the then prime minister arranged to be appointed to five other portfolios – in secret – through 2020 and 2021.
When Morrison reshuffled his ministry in December 2020, the explanatory fine print on the published ministerial list contained one new sentence among the usual footnotes.
“Ministers are sworn to administer the portfolio in which they are listed under the ‘Minister’ column,” it says, “and may also be sworn to administer other portfolios in which they are not listed.”
That extra information wasn’t on the list template for either the Turnbull ministry or the first Morrison ministry. It changed in 2020, after Morrison had moved to claim secret ministerial authority in the portfolios of both Health and Finance.
It is now public knowledge that Morrison got himself authorised as a minister-equivalent in five portfolios, beginning with those two. It was done under section 64 of the constitution and has been declared lawful, something on which the solicitor-general will expand in advice to the government this coming week.
What everyone in politics is still asking – even after a lengthy press conference from Morrison himself – is why?
The initial basics were outlined in a report in The Australian last Saturday – followed swiftly on the website news.com.au by the revelation that Morrison had also given himself authority over the umbrella department of Industry, Science, Energy and Resources.
With that power he had controversially overruled his Resources minister, the Nationals’ Keith Pitt, last year to block Pitt’s planned approval of the PEP 11 gas exploration project off the New South Wales Central Coast, a decision now subject to legal challenge. Morrison says it was the only time he exercised any of his extra authority.
On Monday, Albanese confirmed Hurley had signed the third appointment letter, for Industry and Resources, on April 15, 2021, and a final one for both Home Affairs and Treasury the following month, on May 6. Morrison was not paid extra for any of these positions.
After a Tuesday morning interview on Nine Radio and then a lengthy post on his Facebook page apologising to dismayed and angry colleagues, Morrison gave a long news conference on Wednesday, saying he had only made the extraordinary intrusion into portfolios that provided ministers with unique unilateral decision-making powers.
“With an understanding of the expectation of public responsibility singularly directed at the prime minister, I believed it was necessary to have authority – to have what were effectively emergency powers, to exercise in extreme situations that would be unforeseen – that would enable me to act in the national interest,” Morrison said. “And that is what I did in a crisis.”
The sequence of events began in mid-March 2020. The government was preparing to activate emergency powers in the face of the Covid-19 virus, and cabinet’s National Security Committee discussed an unprecedented move – closing Australia’s borders to travellers, in and out.
It required invoking the extraordinarily far-reaching emergency ministerial powers in the Biosecurity Act, which had lain dormant since the act was passed in 2015. As the small group of senior ministers focused on the immense authority it would bestow on then minister for Health Greg Hunt, Scott Morrison made a telling remark: “We’re making Greg the most powerful man in Australia.”
Within days, Morrison had quietly bestowed that same power on himself. With the pandemic taking off, it was thought important to have a back-up minister with the same powers. As a slew of lawyers have since pointed out, it could have been done using existing deputising arrangements.
That is one of the key questions for Sydney University constitutional law professor Anne Twomey. “I don’t think that you needed extra backup ministers simply because there wasn’t extreme power,” Twomey says. “That’s the strange thing. I don’t understand the logical connection between the two.”
Hunt was involved in the decision, as was then attorney-general Christian Porter, who gave the legal advice on how to do it. They drafted a protocol that placed checks and balances on Hunt’s power.
The plan was explained to some other National Security Committee colleagues but not to the rest of cabinet, the wider ministry or the backbench. When Morrison then used that template to seize authority in four other portfolios over the course of the next year, he told none of them.
Former Finance minister Mathias Cormann first knew the prime minister had ghosted his then portfolio when he read it in The Australian last Saturday. The story – contained in a new book on the pandemic, Plagued, by two of the newspaper’s journalists and apparently communicated to them two years ago – explained how Morrison took the power in Health. It wasn’t plastered across the front page but tucked away on page two.
Now heading up the Organisation for Economic Co-operation and Development in Paris, Cormann phoned Morrison immediately, seeking an explanation. Morrison apologised. He later said on radio he had assumed the information had been shared between their “offices”.
On Tuesday afternoon, after the issue exploded, Morrison phoned his former treasurer, Josh Frydenberg, and apologised personally. By Thursday, former Home Affairs minister Karen Andrews revealed she still hadn’t heard from him. Soon after, he picked up the phone.
The day before, Scott Morrison defended his actions. He insisted he had not actually used the powers – other than for the Resources veto – and was acting variously in response to the pandemic and “in the national interest”.
There were many contradictions in Morrison’s explanations. He suggested the powers were supposed to protect against “unforeseen circumstances”, initially describing a minister becoming ill or otherwise unable to perform their duties.
But his own past actions undermined that argument. When Immigration minister David Coleman took a year of personal leave from parliament for reasons that were never fully explained and when Defence minister Linda Reynolds took sick leave for a heart condition and when Alan Tudge stood aside from Education, he appointed other ministers to stand in for them. He did not appoint himself.
When Peter Dutton, as Home Affairs minister, was hospitalised with Covid-19, nothing special was done.
Twomey suggests he could have used existing powers and says his argument doesn’t make sense. “If you’re the prime minister, and you think that the most important role is that of prime minister, then why weren’t you doing anything to ensure that there was someone else who was able to exercise your powers? Because what if you get sick and you die…? A rational way of doing it would be make sure that there was an available pool of ministers in relation to each different portfolio area and including backing up your own. But that’s not what he did.”
Morrison also offered an alternative explanation – that ministers might take a decision he didn’t like. Along with incapacitation, he said he feared “some threat to the national interest as a result of unilateral action by an individual”.
He said the secrecy was so as not to disrupt ministers’ daily work, or be “misconstrued and misunderstood”, cause “unnecessary angst” or undermine ministers’ “confidence in the performance of their duties”.
Morrison said everybody had blamed him for everything that was going on, “every drop of rain, every strain of the virus, everything that occurred over that period of time”.
He suggested he took extra powers because everyone expected him to have the power to fix everything. As such, public expectations had forced him to do it. “You’re standing on the shore in the middle of a pandemic,” he told journalists. “I was steering the ship in the middle of the tempest.”
His successor Anthony Albanese called those decisions “an unprecedented trashing of our democracy”.
“This has been government by deception,” Albanese said. “Government in secret. The appointment of not a shadow ministry by the leader of the opposition but a shadow government by the prime minister.”
After initially defending Morrison, Opposition Leader Peter Dutton later changed position. “Scott obviously has done the wrong thing here – he’s admitted that, he’s provided an apology to his colleagues, which I think is appropriate. It’s certainly not something I would do if I was prime minister.”
Neither Dutton nor Albanese blamed the governor-general. But others across politics privately query the way Hurley handled the affair and whether he asked enough questions.
In a statement, Government House said Hurley had acted on government advice and in accordance with the “principle of responsible government”, which says ministers are accountable to parliament and the people for the advice they provide.
The statement suggested Hurley did not know about the secrecy, although some think – given the unorthodox nature of the move – he should have checked.
Morrison explained that Hurley had conferred the power not in person but by vice-regal letters of appointment, based on his department’s advice. Some departmental officials knew what the prime minister was doing, along with some in his own office, even if cabinet ministers and the secretaries of the departments in question – beyond Health – did not.
The Saturday Paper understands departmental officials raised concerns, particularly about resolving clashing ministerial powers in relation to the Resources portfolio.
University of Canberra constitutional law professor Kim Rubenstein suggests the department’s involvement “would have put public servants in a situation of conflict”.
She also says the lack of transparency – including the failure to publish details of the ministerial changes – was the greatest concern.
“It would’ve had to go up online at least, even if you’re not trumpeting to the world,” Rubenstein says. “Who was asked not to follow the normal procedures of putting that material up in a public framework?”
Ministerial changes are normally published on the Federal Register of Legislation but haven’t been updated since February 2020 – a month before the saga began.
When The Saturday Paper asked the prime minister’s department this week why updates hadn’t been published, it replied “no comment”.
There were some other undetected signs that the usual rules were not being applied.
On March 18, 2020, just days after Morrison secretly took joint custody of Health, he referred obliquely at a news conference to the need for both Hunt and him “as prime minister” to take action under the Biosecurity Act.
This week, Morrison suggested journalists should have realised when he intervened to overturn Keith Pitt’s Resources decision that he could only do so if he’d assumed special ministerial powers.
Many of Morrison’s colleagues are stunned by his arguments. Aside from Hunt, none of the ministers directly affected knew the prime minister had done this. A handful had been advised about Health but not the rest of it.
Christian Porter, who had given the initial legal advice greenlighting the Health move, as attorney-general, was kept in the dark. After Porter moved to Industry, Morrison encroached on that department without telling him.
Adding insult to insult, Morrison initially suggested that he couldn’t recall if he had taken on portfolios other than Health, Finance, and Industry and Resources. “There were a number that we considered at the time for safeguard reasons but I don’t recall any others being actioned.”
He promised to check and was “happy for that to be disclosed”.
Albanese disclosed the full picture the next morning. He is now considering whether legislative change is needed to stop it happening again.
Griffith University adjunct professor of government Anne Tiernan says leaders having substantial experience with parliament and its conventions – and a willingness to respect them – is also key. “There has to be more attention paid to the attitudes and habits that people bring with them to these roles of public trust.”
The former prime minister’s explanations have not satisfied his colleagues, either. Across the former cabinet and beyond, they are incredulous.
Those whose portfolios Morrison intruded on without their knowledge are incandescent. Frydenberg has told colleagues he was “surprised and disappointed”, although they suggest he was a lot more than that.
Andrews is the only one, so far, to call for Morrison to quit.
One former minister was relieved that he appeared not to have exercised the powers any further. “To do this in the circumstances – in secret – is very bad,” they said.
Another agreed about the secrecy: “It’s always the cover-up that’s the problem.”
Another suggested there was a pattern: “On one hand I’m surprised – gobsmacked. On the other hand, when I sit back and look at it, I’m not surprised.”
There is now some soul-searching around Morrison’s autocratic tendencies and what he was allowed to get away with, including establishing a cabinet office policy committee with himself as its only member, a device he used to cover meetings with “cabinet-in-confidence” secrecy.
Some say Frydenberg, in particular, should have pushed back and has paid a high political price. “He let Morrison run him,” one Liberal says, adding that Morrison’s political decisions had effectively “pushed him out of parliament”. “He took over his portfolio. And [Frydenberg] let him get away with it.”
Theories abound as to what might really have prompted Morrison’s move, beyond the plausible pandemic arguments around Health.
Morrison noted the move in Finance related to “additional spending powers that were allocated to the Finance Minister at the time”.
In March 2020, as the pandemic took off, Mathias Cormann had organised a large temporary increase in his ministerial appropriations power to pay for emergency measures – something he negotiated with the opposition and published in parliament.
It may have been this huge power to appropriate – and spend – money that prompted Morrison to take that next step.
Morrison has acknowledged that the Resources decision was political. There is some speculation that the rest – with the possible exception of Health – may have been the same, which would explain the secrecy surrounding them.
In Treasury, the move was made just six days before the budget was to be brought down by the colleague who posed the greatest threat to Morrison’s leadership – Frydenberg.
Home Affairs carries the powers of border protection, one of the most politically volatile issues of the past two decades. Morrison’s activities on election day highlighted the point, pressing his minister to publicise the interception of asylum-seeker boats against all protocols, ahead of the Liberal Party strafing marginal-seat voters with text messages to make sure they knew.
Had Andrews not agreed to press her department to issue a statement, Morrison might have activated his personal power to do so instead.
As the theories fly, none of the explanations to date have satisfied his key former cabinet colleagues. Their faith in him has been shattered.
Long before now, some had trouble trusting their prime minister. The leaked text message from Barnaby Joyce last year calling him a “hypocrite and a liar” was just the tip of that iceberg.
But with these revelations and his illogical explanations, the good ship Morrison is in a new tempest. It has struck what lay beneath. And it’s taking on water.
This article was first published in the print edition of The Saturday Paper on August 20, 2022 as "Inside Scott Morrison’s shadow government ".
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