Jack Waterford: Were Scott Morrison's secret ministerial appointments actually valid

But this invites the question whether the GG's automatic assent, because it has come from the PM in proper form, should be assumed to be valid on that ground alone, even if it has obvious bad effects and undermines the very nature of constitutional government. I asked Tom Brennan, SC, about this, and he pointed out that advocates representing the Commonwealth are hardly ever likely to agree with any proposition entrenching some limitation on Commonwealth power.

"Consequently, it was to be expected that the Solicitor-General would conclude that there is no implication to be found in the constitution which requires disclosure of the fact of appointment of a minister to administer a department pursuant to section 64 of the constitution.

"I have no doubt a court would agree with the Solicitor-General that the failure to disclose an appointment under section 64 is inconsistent with the constitutionally entrenched system of responsible government: by which ministers must account to both houses of Parliament for their administration of departments which they are appointed to administer.

"There is a fair chance that the courts would take the next logical step - and find that the valid exercise of the power to appoint a minister to administer a department under section 64 requires a disclosure sufficient to enable the operation of the constitutionally entrenched system of responsible government. That would be completely consistent with the High Court's reasoning in Lange v ABC which is the basis of the modern freedom of political communication.

"If the courts were to do that, they would conclude that Mr Morrison's undisclosed appointments to administer Departments were invalid and that the Solicitor-General was wrong to conclude that they were valid,'' Brennan said.

Hurley has implied that he did not know that Morrison had no intention of letting the world know that he held this reserve appointment. But that must have been obvious after the first appointment, which was one to which he could have returned. There was no precedent for a secret appointment. The practical and constitutional difficulties it would cause were fairly obvious.

He could have taken this up by exercising his rights - as many GGs before him have done - to ask questions, to suggest publicity, and to warn of the consequences of the public (and even the relevant minister) not knowing of the new top dog.

Earlier GGs such as Paul Hasluck, Zelman Cowen, Ninian Stephen, Bill Hayden, William Deane or Quentin Bryce would have been hyper-alert once they saw formal advice of the sort Hurley did. They asked questions, and sometimes returned materials so that work they regarded as being essential was done.

The advice recommended to Hurley that he "appoint me, as prime minister, to administer" the particular department. It said that this appointment would allow him "to be the responsible minister for matters within that portfolio as and when required". It was peculiar even before it emerged that the project was to be shrouded in secrecy.

But the explanation raises the suggestion that Morrison had no immediate intention of taking up the appointment until he perceived the need to do so. That was the case. The power was there from the moment Hurley signed it but did not become operative until Morrison perceived that undescribed circumstances had arisen, or unannounced conditions had been fulfilled, to make it appropriate that he begin personally to exercise his functions of administering the department. Given that each of these departments already had ministers, they would continue to be administered by others. Once the PM wanted to take over, it was clear that his decisions overruled those of other ministers, even if those decisions had already been made. Once Morrison took up the job, he was top dog.

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That seems to me to be a dormant or conditional appointment, which is not an appointment of a type that section 64 of the constitution authorises. It is arguable, indeed, that section 64 only authorises appointments which provide both a power and a duty to administer a particular department immediately. An instrument appointing Morrison to administer the Treasury "if and when required" would probably not be valid.

Prime Minister Anthony Albanese has announced an inquiry but appears to have accepted as a working principle that there are no issues about the validity of the appointment, or about how Hurley saw his role. There are, and they are bound to emerge, if only because the validity of Morrison's powers will come up in court during the gas producer's appeal about the loss of rights.

Even if the PM does not want an open-ended inquiry, possibly continuing forever, he would be wise to consider the possibilities of the inquiry's looking at the whole pattern of lawlessness in the Morrison government. A pattern of avoiding accountability. A pattern of ministers, led by the PM, taking charge of grant programs for partisan purposes. The PM has already announced a royal commission into Robodebt, which this inquiry should not duplicate. But it would not be doing that if it merely contrasted the mean, suspicious and coercive regime ministers (including Morrison) imposed on poor Australians with the open hand shown to cronies.

It's not merely a matter of taking every opportunity to make political capital at the expense of Morrison and ministers in his government, such as Peter Dutton and Sussan Ley. It's a matter of helping the public service re-learn the rules of good government and recovering from the systemic debauching it has been through. The new head of PM&C, Glynn Davis has to focus on restoring the thinking part of the service. But he needs to give equal attention to its moral part.

This is part two of Jack Waterford's weekly column. Part one was published on Friday.