Are Scott Morrison’s actions understandable? A constitutional expert weighs in

Scott Morrison’s various attempts to explain his multiple ministries have left more questions than answers. Here constitutional expert Professor Rosalind Dixon seeks to explain the ex-PM’s possible motivations.

Fear and felt necessity

One possibility is that Morrison genuinely felt afraid of what COVID might bring — and the capacity of the cabinet to step up to the challenge of managing the pandemic.

Many of us in February and March 2020 experienced something like this feeling. I certainly bought a lot of (though not more than my fair share of) groceries, toilet paper and even an industrial freezer to store groceries for my immuno-compromised parents. And to the consternation of colleagues, in February I started wearing an N95 mask.

This might also help explain Morrison’s first overlapping ministerial appointment — i.e. his decision to appoint himself backup health minister in March 2020.

Morrison may not have needed to make this appointment. There are already well-established paths for ministers to delegate their power to colleagues, in the event of illness or absence. And this is clearly what should have happened in this case.

But he might have genuinely felt panicked, and acted in good faith in making this appointment. We are also told that he informed Greg Hunt about the decision. This is also why, earlier this week, I wrote an opinion piece that tried to credit the good faith of at least part of this version of events. 

But for most subsequent appointments, the timing and secrecy of Morrison’s multiple roles just don’t fit with this account. At a stretch, this might explain his decision to appoint himself as backup finance and trade minister at the end of March 2020. But it is a real stretch.

You do not order emergency groceries and forget to tell the people they are designed to help.

And it simply does not explain the actions he took in April and May 2021, with the benefit of 12 months of pandemic management behind him.

Presidentialisation

The more likely explanation is that Morrison sought these appointments because he had a misguided view of how our constitutional system is supposed to operate: he saw the prime minister’s role as equivalent to the role of an executive president.

His statement at his press conference yesterday was consistent with this view: he suggested that he was ultimately responsible to the Australian people for all aspects of pandemic management.

That may be true politically. But it is not true legally. 

Our system of responsible government depends on individual and collective responsibility on the part of members of cabinet: ministers are individually responsible to Parliament for the performance of their ministries. And cabinet is responsible collectively for the performance of the government and maintaining the confidence of Parliament and the public.

Morrison, therefore, may simply have been spending a bit too much time talking to other presidents — and prime ministers with presidential tendencies.

In isolation, Morrison’s relationship with the likes of Narendra Modi, Shinzo Abe and Boris Johnson may have been good for Australia. But the downside is that some of their centralising, presidentialist — indeed proto-authoritarian and nationalist — tendencies may have rubbed off on Morrison. 

And that is before he spent time with former US president Donald Trump.

Personalisation 

Trump was not only an executive president. He was someone who equated public, institutional power with personal power.

He saw no distinction between the White House and Mar-a-Lago, and classified public documents and his own tax returns. Both were his personal enclaves. And it seems there is a good chance he squirrelled away or shredded both.

He also had no compunction inciting violence against members of Congress or his vice president to save his own position. Institutions did not matter, only his own personal brand mattered.

Morrison was a lot more restrained and pro-institutions than this. 

But he still had a strong personalist, ant-institutional vein. He dismantled the Council of Australian Governments (COAG) in favour of a highly presidential form of national “cabinet” or committee that excluded many key cabinet colleagues at a state and federal level.

He downgraded the importance of institutions such as the Australian Public Service, and independent institutions such as the Administrative Appeals Tribunal.

And he thought it was enough to take the word of ministers such as Alan Tudge and Christian Porter about their conduct, rather than insist on an independent institutional response and investigation, and the importance of preserving public confidence in institutions such as the attorney-general.

Why this was so is anyone’s guess. Maybe Morrison’s remarkable success at the 2019 election, seizing victory from the jaws of defeat, went to his head. Perhaps being a Pentecostalist, a religion that emphasises individual charismatic authority, played some role.

Or maybe Morrison is just something of a megalomaniac.

Lessons going forward 

Whatever the explanation, Australian voters cannot accept Morrison’s attempt to justify his actions as necessary and appropriate.

They were unnecessary, secretive and in breach of basic commitments to responsible government and institutional checks and balances in our democracy.

And we need consensus on that before we can move forward — because our system works well when these norms are upheld, but quite poorly otherwise.

Modest reforms should be adopted in Parliament to mandate that all ministries go on the legislative register, no matter how temporary.

But the biggest change we need is in how we talk about Morrison’s actions. If not unconstitutional, they were certainly against the spirit of our constitutional system. 

And there is simply no good reason for them ever to be repeated.