In December last year, Morrison used his powers to overrule then-resources minister Keith Pitt, before intervening to stop PEP11, a licence to find oil and gas off the NSW coast including near Sydney that Liberal MPs in nearby seats opposed.
Coalition sources said Morrison believed it was better to use the joint powers than to sack Pitt, who supported the project.
In a filing to the Federal Court on Monday appealing Morrison’s decision last December, Asset Energy, which owns 85 per cent of the permit for PEP11, argued that the former “Prime Minister breached the requirements of procedural fairness in that he predetermined the application and the purported decision was infected by actual bias”.
A spokesman for Governor-General David Hurley confirmed Morrison had been appointed to at least three portfolios – leaving open the possibility that he may have been appointed to more ministries in secret.
“The governor-general, following normal process and acting on the advice of the government of the day, appointed former prime minister Morrison to administer portfolios other than the Department of the Prime Minister and Cabinet,” he said.
“Questions around appointments of this nature are a matter for the government of the day and the Department of the Prime Minister and Cabinet. Similarly, the decision whether to publicise appointments to administer additional portfolios is a matter for the government of the day.”
The Sydney Morning Herald and The Age asked the Department of Prime Minister and Cabinet on Monday what extra portfolios Morrison was appointed to, as well as when and where details were published.
The department did not respond.
‘I’ve never heard of this’
Former prime minister Malcolm Turnbull said the fact the appointments had been kept secret from other members of the cabinet was “utterly at odds with our whole system of government. The public are entitled to know who is responsible for what”.
“I was sworn in as minister for agriculture and water resources when Barnaby Joyce was found to not be a valid member of the parliament because of his New Zealand citizenship. We put out a press release, I went to Government House and was sworn in,” he said.
“I’ve never heard of this, it is completely without precedent, and it’s wrong.”
Pitt told The Sydney Morning Herald and The Age he had found out about the double-up in resources at some point in the middle of 2021.
Former health minister Greg Hunt was aware of the decision and that it was linked to the extraordinary powers the Biosecurity Act 2015 confer on the health minister alone, which allowed him to shut the borders and put in place measures to stop price gouging on personal protective equipment.
On the advice of then-attorney-general Christian Porter, Morrison sought to be able to exercise these powers rather than handing them to junior minister Richard Colbeck if Hunt were to catch the virus. In the end, Hunt used the powers sparingly and Morrison never used them.
Dutton told ABC radio Morrison’s extra powers were assumed as the government was contemplating “all sorts of armageddon scenarios”, but he was never aware of them.
“Obviously, the prime minister or then-prime minister had his reasons, his logic for [it] but not a decision that I was a party to or was aware of. It’s a decision-making process that he’s made,” Dutton told ABC Radio.
Asked whether Morrison had taken on the Defence ministry, Dutton said, “Not to my knowledge.”
Secrets and laws
University of Sydney professor Anne Twomey said there were a number of ways for ministers to take on powers, including that other ministers could temporarily authorise another person to act for them, such as if they were ill or on holidays.
“What’s very, very odd about it is doing it secretly and even odder if you’re doing it secretly without the agreement of your cabinet and without the agreement of the minister concerned. That’s just completely strange,” she said.
She had combed through the administrative arrangements orders – which detail which minister has responsibility for specific pieces of legislation – and the government gazettes for the period and could not find any evidence of Morrison being given extra powers.
“There is a legal trail that needs to follow… Doing things in secret without actually putting them out in the administrative arrangements orders is really problematic,” she said.
Graeme Orr, a University of Queensland public law professor, said the move was “just weird, but I don’t think it’s unlawful”.
“They bypassed a series of mechanisms, some of which would have had to be public or would have had to have had … the existing minister involved.”
Morrison declined to comment.