ABC Radio National – Richard Aedy

E&OE

Subjects: Solicitor General’s Advice regarding Scott Morrison’s Ministerial Appointments; National Anti-Corruption Commission

RICHARD AEDY: The Prime Minister says Scott Morrison owes the Australian people an apology and will set up a broader inquiry into how the former Prime Minister secretly appointed himself to five portfolios. Mark Dreyfus is the Attorney-General. Welcome to RN Drive.

ATTORNEY-GENERAL MARK DREYFUS: Thanks very much for having me, Richard. Good evening to you and your listeners.

AEDY: Good evening. You were briefed on this advice, and you're the nation's first law officer, what did you make of it? Do you agree with the findings?

ATTORNEY-GENERAL: The advice is an extraordinary advice by the nation's second law officer, as the Solicitor-General is sometimes known. It's filled with really alarming findings where he said things like the “principles of responsible government are fundamentally undermined”. Where he's described Mr Morrison appointing himself to five departments as, and I'll read it out, “inconsistent with the conventions and practices that form an essential part of the system of responsible government”. And the Solicitor-General explains why. He says, and again, I'll quote from his advice, he says, “it's impossible for the Parliament to hold ministers to account for the administration of departments if it does not know which ministers are responsible for which departments.” I think that I've never seen such an extraordinary advice by the Solicitor-General about Prime Ministerial behaviour, and that's why the Government and the Prime Minister have released, very unusually, the advice of the Solicitor-General.

AEDY: I’ll come back to that releasing shortly but the former Prime Minister Scott Morrison has, of course, released a statement as well this afternoon. He doesn't apologise for the decisions he took. He argues the decisions were made in the face of a pandemic to protect Australians’ health and homes and businesses. He says he's proud and thankful for what he was able to achieve in the circumstances. And he notes that he didn't break the law or any constitutional convention, nor did he use ministerial powers, except that one time. What do you make of that statement?

ATTORNEY-GENERAL: He's still showing a failure to understand what it is that he's done and he's still trying to falsely hide behind the pandemic. The former Prime Minister has not explained or given any coherent reason for doing what he did and that's why he's kept this all secret. It's because he can't explain it. And he's ignoring the fact that we've got perfectly standard, acceptable means of replacing ministers when they fall ill or when they go on leave. We've got perfectly standard means of appointing temporary ministers when that is necessary. What we haven't ever seen is a Prime Minister appointing himself to five ministries - and only a couple of them were at the start of the pandemic, the other three were much later - and some of them as late as May 2021. He's just ignored that and that's why it is an extraordinary set of conclusions from the Solicitor-General. And I find it extraordinary that Mr Morrison, even now, with all of the criticism and all of the outrage that his conduct caused, cannot bring himself to apologise or even acknowledge that what he did was wrong. And it I'm waiting for the Leader of the Opposition to respond to this advice from the Solicitor-General. I'm waiting for the Leader of the Opposition to say that he will cooperate fully and that all of the former ministers in the government, most of whom apparently weren't told about this, will cooperate with any inquiry that the Government starts.

AEDY: Let's move on. The Prime Minister has announced a broader review will be sought. He says it won't be a political inquiry. How can it not be?

ATTORNEY-GENERAL: In the sense that everything concerning a Prime Minister looked at in one way can be seen as political. Everything about the Parliament of Australia can be seen as political at one level, but what the Prime Minister is there saying is that this is an absolutely appropriate inquiry by the current government of Australia into the way in which the processes of our government, the constitutional procedures, were apparently misused by the former Prime Minister. I think any right-thinking Australian would want to see the current government of Australia not only investigating to find out exactly what went on, but making sure that this can't happen again. That's why the Prime Minister said, in clear terms in his press conference today, that he's put in place clear processes to make sure that all future appointments of ministers to administer departments will be made public and that's something that we can do straight away. The inquiry will go to, not only what happened, but what we can do to make sure that no future government, we need to put this in the law, that no future government can engage in the kind of conduct that Mr Morrison engaged him.

AEDY: So the Greens would like the inquiry to have the powers of the Royal Commission. Is that something you'd consider?

ATTORNEY-GENERAL: We're still discussing what form this inquiry will take and I won't be drawn on the details. It's a matter that we're still discussing.

AEDY: The Prime Minister has said that he wants the inquiry to be expeditious, so when can we expect to hear some details on it?

ATTORNEY-GENERAL: Soon. Richard, I know that everyone's keen to know the details just like we were keen to know all of the details and they've dribbled out over the course of the last week. Mr Morrison originally couldn't even remember that he appointed himself to administer departments of state. Now, this is a matter that requires proper investigation. The Solicitor-General has provided legal advice to say that it's not a breach of the Constitution, in its terms,  for the Prime Minister to have been appointed to administer these five departments but then goes on to say that it is an appalling breach of conventions and practices. And that's why we need to not only make sure that we've investigated all of the aspects of this, but we need the inquirer to also make recommendations as to how the law needs to be changed as to what we can do to put in place proper protections for our system of parliamentary democracy.

AEDY: The Prime Minister Anthony Albanese has called for a broader inquiry into Scott Morrison’s secret ministries, which the Solicitor-General says undermined principles of responsible government. Mark Dreyfus is the Attorney-General. He's with us here on RN Drive, Richard Aedy with you today. The Prime Minister was quick to point out that releasing the Solicitor-General's advice is a one off. You were elected on a transparency ticket. Would you expect to see more of these sorts of rulings made public though?

ATTORNEY-GENERAL: Very occasionally, governments of both political persuasions have chosen to release advice from the Solicitor-General. It's very, very, very unusual and that's because legal advice, by and large, is kept confidential. It often goes to the protection of the Commonwealth interests in litigation, which of course means the protection of the interests of the whole of the Australian community. And by and large, legal advice in the private sector is not made public. Equally, legal advice in the public sector, government legal advice, is not made public. But this needed to be made public simply because of the extraordinary nature of these actions by Mr Morrison.

AEDY: If we're to look at the recent Resolve polling, which puts Anthony Albanese well ahead as preferred Prime Minister, and Labor's primary vote is well up on what you got at the election. This is why I asked how could it not be a political inquiry because this is the biggest political free kick you could possibly receive coming into government, isn't it?

ATTORNEY-GENERAL: You can look at it that way, but I'm someone that spent a lifetime in the law, a lifetime looking at our principles of government, arguing cases in the High Court. I find this conduct by Mr Morrison, of having himself appointed to no less than five departments of state, and then keeping it secret, including from the ministers themselves, an extraordinary act by any Prime Minister. It is unprecedented in Australian political history that a Prime Minister would have himself appointed to five departments and kept it secret. He kept it secret because he knows that he can't properly explain it. And the potential for harm to our system of government is obvious. It may be that Mr Morrison didn't use these powers, it may be that. But the potential for them to be used is obvious, and in the hands of someone else at some future time, if this goes unchecked or if it remains possible to keep secret, the appointment of ministers, the potential for harm to our parliamentary democracy, is absolutely obvious.

AEDY: Just briefly, Attorney-General, are you still expecting to introduce ICAC legislation, or something what will be a future ICAC, upon Parliament's return?

ATTORNEY-GENERAL: I'm hoping to introduce legislation to establish a powerful, independent, National anti-Corruption Commission at the earliest possible opportunity. Whether it's on the first day that Parliament returns, which is the fifth of September, I'm not sure at this point, but it's going to be soon thereafter.

AEDY: All right. Well, thank you very much for joining us this evening.

ATTORNEY-GENERAL: Thank you very much, Richard.

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