10
20. As noted in the introduction to this opinion, Mr Morrison's letter to the Governor-General on 12 April 2021 recommended that the Governor-General appoint him, "as Prime Minister, to administer [DISER]", in order to allow him "to be the responsible Minister for matters within that Portfolio, if and when required". Mr Morrison did not advise the Governor-General to direct him to hold a new office under s 65. He sought only to be appointed "as Prime Minister" to administer DISER so that he could exercise the powers of "the Minister"[1] under any legislation administered by DISER, without the need for one of the other Ministers administering DISER to authorise Mr Morrison to act on his or her behalf.[2]
21. Notwithstanding the above, the Instrument of Appointment stated:
I, DAVID JOHN HURLEY, Governor-General of the Commonwealth of Australia, pursuant to sections 64 and 65 of the Constitution, hereby direct and appoint [Mr Morrison], a member of the Federal Executive Council, to administer the DEPARTMENT OF INDUSTRY, SCIENCE, ENERGY AND RESOURCES.
(underlined emphasis added)
22. The reference to s 65 of the Constitution in the Instrument of Appointment, and the use of the word "direct", were inapposite. The instrument did not in fact direct Mr Morrison to hold any office (unlike the instrument quoted in paragraph 18 above, in which he was directed to hold the offices of "Prime Minister" and "Minister for the Public Service"). It therefore did not involve any exercise of power pursuant to s 65. In my view, however, the unnecessary reference to s 65 has no effect on the validity of the appointment under s 64. The instrument contained all the wording necessary to "appoint" Mr Morrison to "administer" DISER under s 64. The inclusion of superfluous words does not cast doubt on the legal efficacy of that appointment.
