Attention surrounds the actions of Scott Morrison in appointing himself to extra ministries, unbeknown to the nation, even colleagues. But this is not the only area where the Coalition played fast and loose with our governing conventions. And in doing so it has opened the office of the Governor-General to another controversy, writes #Mate.
It wasn’t illegal, but it undermined good and responsible government. That in a nutshell is how the nation’s second law officer, Solicitor-General Stephen Donoghue, assessed the conduct of Scott Morrison in having Governor-General, David Hurley, secretly swear him in to five extra portfolios.
Anthony Albanese released the advice on Tuesday, confirming that the actions of Morrison and Hurley were legal. The matter immediately returned to the realm of politics, as the Prime Minister announced an inquiry headed by ”an eminent person with a legal background to consider all the implications”. With the Coalition already being smashed in the polls, this show is likely to run and run.
While there has been no finding of illegality about Morrison’s power grab, it has shone an unwelcome spotlight on the Governor-General. The holder of this office is at pains to avoid even the sniff of controversy. By convention, he or she acts on the advice of the government (with the notable exception of the Whitlam dismissal in 1975). But Morrison’s foolhardy behaviour has embroiled the office in an unlikely controversy.
There is another issue stemming from the unorthodox methods of governance pursued by the Morrison government, and it may ensnare Hurley too. It concerns the Morrison government’s use of a legislative instrument that dodges accountability. Under that instrument, the Governor-General may have acted outside the governing conventions through his involvement in a taxpayer-funded body known as the Governor-General’s Australian Future Leaders Foundation. The foundation’s executive director is Chris Hartley.
Mr Hartley and the GG
Who is Chris Hartley? For a person who is being provided $18 million and the endorsement of the Governor-General, little is known, except that he is a businessman. Beyond his connection with the Queen’s representative, an ABC report in April noted his ”connections to the royal family”. The ABC reported:
“A mystery foundation established less than a year ago by a businessman with connections to the royal family has managed to secure more than $18 million in federal funding, but the man behind it is refusing to outline how the program will run or when it will launch.
The Australian Future Leaders Foundation Limited — which appears to have no office, website or staff, apart from three directors — received the five-year cash injection in last week’s budget.
Several sources have told the ABC that its executive officer and director, Chris Hartley, boasted that he secured federal support more than a year before it was publicly announced.
Promotional brochures published early last year, and seen by the ABC, claimed vice-regal and government endorsement of the program.
Mr Hartley titled the program “The Governor-General’s Australian Future Leaders Programme” and asserted to potential supporters that it would complement “the government’s economic recovery plan to catalyse societal cohesion and fairness.”
The Governor-General has hosted Hartley on 11 occasions, according to entries in his calendar. Since September 2021 the Governor-General appears to have anointed the foundation as belonging to and endorsed by the Governor-General. The Governor-General’s official diary records Hartley as being referred to as executive director, Governor-General’s Australian Future Leaders Program.
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Lending the brand of the Queen’s representative and the highest office in the land would usually warrant pomp and ceremony. But public celebration has been replaced with private secrecy.
It is not known how the government was made aware of Hartley or the intention to create the “Governor-General’s Australian Future Leadership Foundation”.
According to the ABC, the Governor-General and his office have confirmed their involvement in the design of the leadership program but his office insists it had no involvement in government funding decisions.
Last-minute flurry of law making
The Commonwealth government has the ability to use a law-making process commonly referred to as delegated legislation or legislative instruments. It is meant to cover unusual situations, but unusual situations don’t include the approach of an election. Yet this process got a massive workout as the May 21 election neared.
Over 200 legislative instruments were made in the final three sitting days of the Morrison government. Add to these more than 300 made on the last sitting day before Christmas and there are 581 legislative instruments soon to become law.
Legislative instruments can be made as either ‘‘disallowable’’ or ‘‘exempt from disallowance’’. We will focus on ‘‘disallowable’’ instruments. Each ‘‘delegated legislation’’ is open to being disallowed within 14 sitting days after submission.
Consequently the Coalition’s choice to have few sitting days prior to the election means the ‘‘delegated legislation’’ submitted prior to Christmas 2021 is still open to being disallowed.
An exemption for GG’s $18m foundation
This brings us back to the Australian Future Leaders Foundation. The usual way to provide money to charities is via grants with criteria set by the government to align with its policies. The process followed here turns it inside out and upside down. Not only is the money provided as a result of the charity pursuing its agenda, it is effectively using our taxes as a form of venture capital.
A curious detail is mentioned at the bottom of the explanatory memorandum, a separate document to the legislation.
In explaining this spending the Morrison government stated: “The program will complement the “Government’s Economic Recovery Plan” and ”will catalyse societal cohesion, fairness and focus on the national interest, issues and opportunities.”
The Morrison government obtained an exemption from using the grants.gov.au website. Instead the government delegated the final funding decision to the Assistant Secretary, Government Division who will use the ‘Commonwealth Grant Agreement’ process.
As part of the justification for the grant, the explanatory memorandum for the legislation states:
The inception of the program is based on broad consultation undertaken by the Foundation. This has included Government representatives including the department’s senior officials, the Australian Public Service Commissioner, and the Office of the Official Secretary to the Governor-General.
This appears at odds with the inability by the government to answer basic questions about the Australian Future Leaders Foundation in Senate estimates. Responses included:
- The government did not believe the foundation has an office, a phone number, website or any staff.
- The government had done due diligence but could not describe what the due diligence process was.
- The office of the Official Secretary of the Governor-General brought the initiative to the government.
- Then finance minister Simon Birmingham conceded it was unusual for proposals to come from the Governor-General.
One thing left to do, how to fund it
Those pesky rules about how taxpayers’ money is spent appear to have made the direct funding of the Governor-General’s foundation through a standard grant process unacceptable. Perhaps this is why it was funded in the 2021-22 budget and again in the 2022-23 budget. The money was budgeted, but getting it out the door was a bit tricky.
Never mind though, a solution was to be found by the Morrison government in the “Delegated Legislation” provisions. By timing the submission of the “Delegated Legislation” for just before the election along with an extraordinary volume of other pieces of “Delegated Legislation” the foundation funding would get lost in the crowd. What chance is there of the committee for scrutinising “Delegated Legislation” being able to gather prior to caretaker commencing?
Shown here is both the Law “Financial Framework (Supplementary Powers) Regulations 1997” that provides for the delegated legislation to fund various government initiatives. In this case it is the innocently named “Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet’s Portfolio Measures No. 2) Regulations 2022 [F2022L00240]”.
The final clause within the Financial Framework law provides some special allowance for the Governor General to use these laws. The writer of this article is unsure whether this provides for the Governor General to administer or direct the funding in some way.
This brings us to today. From the list of 581 delegated legislation awaiting the 14 sitting days period to expire, is (highlighted) is the innocently named “Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet’s Portfolio Measures No. 2) Regulations 2022 [F2022L00240]”. This is the delegated legislation to make law, the granting of $18m for the “Governor-General’s Australian Future Leaders Program”.
With the extraordinary revelations of the former prime minister deceiving parliament and the whole country, there is a significant trust deficit that has enveloped the coalition, knowing this, it would surely be prudent to disallow this legislative instrument until more is known.
Breaking with tradition
More than 250 years ago, the French philosopher Baron de Montesquieu published a book “De L’Esprit des Lois” – The Spirit of the Laws, in which he asserted that liberty existed in England because of the way in which the system of government was organised under the three branches of government, often also referred to as the ‘Three Pillars’. The parliament makes law. The executive government administers and enforces the law. The judiciary adjudicates disputes about the law.
It is for these reasons the power to create ‘delegated legislation’ is so significant. By including a provision in a law allowing amendments to be made by delegation to a minister or in some cases a public servant the three-branch model is being side-stepped.
No one argues that delegated legislation should be prohibited, however the opportunity to abuse the power reinforces the need to have people who appreciate and understand the importance of not abusing the loopholes that exist in a convention-based democracy. The secret swearing into multiple ministries exemplifies this point.
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