Elasticity of a PM’S powers

Scott Morrison secretly expanded his ministerial powers. Would Jacinda Ardern follow his example, asks Brigitte Morten?

It has emerged that over the last year of the Australian Liberal Government’s reign, then Prime Minister Scott Morrison was secretly dashing off to the governor-general to have ministerial portfolios assigned to him.

Australia and New Zealand share similar systems of government based in the Westminster tradition of a balance of power. So Morrison’s behaviour raises the question: could or would it happen here?

Morrison explained in a statement that his secretive swearing-in was, in the case of the key portfolios of health and finance, for Covid reasons; and separately, for the energy and resources portfolio, because he wanted a decision that legislation required to be made by the minister, not by Cabinet.

He was correct. Covid did present new challenges for governing and required innovation from those in charge, including contingencies if key political leaders were incapacitated by the virus.

But it would not have been the first time a minister got sick. In 2016, in New Zealand, Cabinet minister Nikki Kaye was diagnosed with cancer. She took leave but did not surrender her warrant. Similarly for minister Kiritapu Allan in early 2021.

Section 7 of the Constitution Act 1986 provides for this. It essentially says that if you hold aministerial warrant for one portfolio, you can be the minister in another. So you do not need to get instruments signed by the governor-general as Morrison did.

His decision to hold such portfolios could be seen as prudent emergency management, to ensure they would not fall to a junior minister if the senior minister became ill. But in reality, that would never happen.

During at least the first Covid outbreak here, the prime minister and finance minister assumed political responsibility for most, if not all, portfolios. Ministerial warrants were not handed back, but there was no need to. THEPM governed with the support of Cabinet, caucus and most of NZ.

Individual ministers may have been required to sign off on funding decisions or regulation, but this was a rubber stamp on work that the leadership team had dictated.

Nor were individual ministers accountable through the same mechanisms. Parliament’s suspension meant no Question Time, the epidemic response committee was limited in scope, and almost all media inquiries went through the 1pm press conference. Jacinda Ardern simply did not need to ask the governor-general for authority to take action she deemed necessary.

The real issue with Morrison’s actions was the secrecy. Other than the energy and resources minister, he did not tell any of his colleagues he had these powers.

In New Zealand, there are safeguards that discourage secrecy. Clause 5.11 of the Cabinet Manual requires that ministers keep each other informed, all ministerial warrants are publicised through gazetting, and the Cabinet Office keep a public schedule of all responsibilities.

But really this all relies on a respect from our government for the rule of law – the institutions, processes and conventions that uphold the notion we are all equal citizens before the law. There is no fine or penalty if you don’t adhere to the Cabinet Manual.

Covid presented a number of challenges to the Government where it has not demonstrated it has this respect.

Key legislation, especially that curtailing rights, was pushed through under urgency. Labour select committee chairpeople have continually ignored normal processes for inquiry and questioning by the Opposition.

Accountability and transparency measures, such as adherence to the Official Information Act, have also diminished.

Majority government is a tool the Labour Government has used with little restraint. Nominally, the powers of the executive are vested in the governor-general. But in reality they exercise these in accordance with the advice of the government.

And as Australian Governor-general David Hurley confirmed, he signed the administrative instruments allowing Morrison to take on the secret portfolios in accordance with s64 of their constitution.

It would be hard to see how our governorgeneral could refuse a similar request from Ardern. And it was not for the Australian governor-general to require Morrison to make such an instrument public.

The Office of the Prime Minister has a legal and constitutional status, but the prime minister acts only to the extent that the will of their Cabinet colleagues allows.

It was clear that Morrison’s internal party support was fragile. It is possible he felt he had to take on the extra powers in secret as he could not risk upsetting his colleagues.

Ardern’s popularity is still one of Labour’s greatest assets. If she wanted to take a decision off aminister, she would likely have the support of her colleagues to do so. This means, in reality, Ardern has much more power to act unilaterally than Morrison’s secret dealings ever gave him.

Brigitte Morten is a Wellington lawyer and political commentator. She is amember of the National Party.