Scott Morrison scandal a chance to improve our system

Chris Merritt 18 August 2022

Published in the Australian Newspaper

On Monday, when Solicitor-General Stephen Donoghue QC is due to produce his opinion on Scott Morrison’s conduct, here’s what to look for.

The real issue is whether the former prime minister’s secret changes to ministerial arrangements during the pandemic breached constitutional conventions that support the doctrine of responsible government.

This is the doctrine that enables parliament to prevent government excesses by holding all ministers to account for their actions.

This principle is crucial to democratic governance in this country and sets the Westminster system apart from US-style republics in which the president is accountable directly to the people, not the congress.

This affair goes right to the heart of the Australian system of governance. To dismiss it as merely a political scandal would be a mistake.

Morrison’s conduct has revealed a constitutional weakness. It has shown that responsible government can be defeated merely by keeping parliament in the dark. That flaw needs to be remedied.

The conventions that give meaning to responsible government, while immensely important, are not set down in law, so it would be a mistake to focus only on whether Morrison’s secret changes were lawful.

They might well be, but parliament was misled about the true state of the executive branch of government. So how could it discharge its constitutional duty if it did not know the identity of all those holding ministerial office?

Regardless of what the Solicitor-General says on Monday, the threat to constitutional conventions and the doctrine of responsible government should be the first item of business for a royal commission.

Morrison’s conduct is merely the latest and most bizarre example of the transfer of power from parliament to the executive branch of government that took place during the pandemic.

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Last week in this space it was pointed out that a Senate select committee on Covid-19 found in April that emergency lawmaking during the pandemic “challenged the Australian parliament’s capacity to provide meaningful scrutiny of proposed laws”.

That committee, chaired by Katy Gallagher, produced a report that provides a sound basis for a royal commission. It needs to be broad enough to cover Morrison’s erosion of constitutional conventions and the flawed nature of lawmaking during then pandemic.

This country’s leaders have been unrestrained in congratulating themselves for achieving a relatively low death rate from Covid-19.

But it is also clear that authoritarian measures, when coupled with minimal parliamentary oversight, have undermined public trust in governments. That trust needs to be restored.

Morrison has correctly observed that the nation was looking to him to address the dangers of the pandemic. But that could have been done while respecting the fact that he was, at all times, answerable to parliament.

Ignoring that reality is the sort of conduct that led to the downfall of King James II of England, the 1688 English Bill of Rights and the Glorious Revolution in which parliament installed new sovereigns on terms set by parliament.

To a nation that came into existence in 1901, these events might seem like ancient history. But they established the principle, inherited by this country, that the real power in the land is held by parliament.

By secretly changing ministerial arrangements, Morrison prevented parliament from discharging its constitutional responsibility of holding the executive branch of government to account.

He also embroiled Governor-General David Hurley in controversy that seems to have no basis in fact. Hurley was duty-bound to act on the advice of the prime minister.

Morrison’s actions, as well as his motivations, are a legitimate cause for inquiry by a future royal commission – not to exact retribution, but to address a vulnerability in our system.

Morrison initially embarked on this course in order to gain access to the immense powers that are vested in the health minister by the Biosecurity Act. This statute enables the health minister to bypass democratic oversight.

In May, 2020, soon after the pandemic took hold, a team of academics from the University of South Australia warned that this Act makes provision for determinations by the minister to prevail over any other law.

That team, led by Professor Eileen Webb, gave Gallagher’s Senate select committee a reform agenda for this statute that deserves another look. Its focus is on democratic checks on power – not a free for all.

Morrison’s conduct during the pandemic has lessons for the future of lawmaking during emergencies, but so does the executive overreach in the Biosecurity Act.

They are both symptoms of the same malaise: the move to sideline parliament and give the executive branch a free hand.

As well as overriding all other laws, ministerial determinations under the Biosecurity Act have coercive force that can send people to jail. These determinations cannot be disallowed by parliament. They are not placed before the Senate scrutiny of a delegated legislation committee and they are not accompanied by a statement of compatibility under the Human Rights (Parliamentary Scrutiny) Act on their proportionate compliance with human rights standards.

According to Webb’s team, the lack of full parliamentary oversight of these determinations, combined with the relatively low standard by which the health minister determines the necessity of issuing the determinations, “significantly reduced the capacity to provide oversight and test the limits of these executive powers”.

The challenge for the Albanese government is to rise above the urge to destroy Morrison’s legacy. The way forward is to seize the opportunity for a Glorious Revolution of our own to protect responsible government. Autocratic rule has no place in modern Australia.