Review into Morrison’s pandemic actions – a storm in a saucer, not even a teacup

Last week the Albanese Federal Labor Government released the report of its Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments by former High Court Judge the Honourable Virginia Bell AC (henceforth the Bell Inquiry).

This inquiry was appointed by the Albanese Government following an earlier review it had requested to be done by the Commonwealth Solicitor General (a public servant) into the "validity of the appointment of Mr Morrison to administer the Department of Industry, Science, Energy and Resources" (DISER).

The Solicitor General's review had been initiated following the publication of Plagued in August by two Canberra journalists, Simon Benson and Geoff Chambers, which included revelations by the former prime minister that he had taken on several major portfolio powers of his Cabinet ministers during the pandemic crisis. That these were not known publicly including by most of his Cabinet at the time, provoked outrage and condemnation that Morrison had acted unconstitutionally, and therefore unlawfully.

The Solicitor General report released later in August found that the exercise of these powers in relation to DISER by Morrison was constitutionally legal and had been correctly approved by the Governor-General. However, the Solicitor General suggested that the secrecy of the appointment "fundamentally undermined" responsible government as Parliament had not been informed. It confirmed that Morrison had exercised similar powers over other portfolios including: Finance, Treasury, Home Affairs and Health.

On release of the Solicitor General's report Prime Minister Albanese concluded that the seriousness of these findings was "something that goes to our very system of government" and cannot be dismissed and thus necessitated a further inquiry. Consequently, the Bell Inquiry was quickly established in late August.

The Bell Inquiry's terms of reference was to: report on the facts and circumstances surrounding the appointments; their implications; the practices; and to propose "procedural or legislative changes" to enhance "transparency and accountability" in the future. The Bell Inquiry was not required to test the constitutional validity of Morrison's actions as this had already been resolved by the Solicitor General in relation to DISER and would apply to all other cases.

What is a public inquiry?

Now, let's be clear what these two reviews were.

The Solicitor General is a Commonwealth official, a public servant, who gives legal advice to the government of the day and represents it in legal proceedings. Solicitor Generals are often asked by governments to give an opinion on some legal issue. They are just that, opinions. They are not binding enforceable decisions and can be challenged.

The Bell Review is a public inquiry with membership from outside of government and some level of public processes – seeking submissions and releasing its report. However, such public inquiries are instruments of executive government – appointed by executive government to meet the needs of executive government, which determines its membership, terms of reference, timeframes, resources and what to do with its recommendations. This public inquiry is a non-statutory body. Unlike a royal commission appointed under the Royal Commission Act, it has no coercive statutory powers of investigation, to call witnesses, procure files, take evidence under oath or to provide legal protection to witnesses. Nor is it a court of law. It does not make 'judgements' just recommendations.

What did the Bell Inquiry do and say?

The Bell Inquiry confirmed that except for the Health Minister, Greg Hunt, a few senior officials in Health and staff in the Prime Minister's Office and PM Department, these arrangements were unknown to most other departments and ministers. It seems that even Josh Frydenberg, the then Treasurer was unaware of Morrison's actions.