Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Hansard source

There has been considerable misunderstanding, even ignorance, of proper process exhibited by those who have contributed to this debate from that side of the chamber and I want to touch a number of those matters. First of all, it is important to remember that the Attorney-General, not just of the Commonwealth but of any jurisdiction, holds a particular place within the legal system. The Attorney-General holds a place which is not akin to any other role played by any other minister in a government. The Attorney-General is described as the first law officer of a jurisdiction and has special responsibilities, usually as an officer of the chief court of a jurisdiction, towards the good functioning of the court system of that particular jurisdiction.

No doubt Ms Roxon is a registered or enrolled legal practitioner of the High Court of Australia, as indeed many other legal practitioners in this chamber would be, notwithstanding that they are now politicians, and as such they have obligations towards the good functioning of the legal system. Particularly as Attorney-General, Ms Roxon has responsibilities towards the functioning of that system, but in what she had to say on litigation involving the Commonwealth she went far beyond and outside the role that she has as a protector of that system. The comments she has made about the litigation initiated by Mr Ashby were quite inappropriate, given the circumstances of that litigation and her obligation towards the court system. She described his case as 'vexatious' and an 'abuse of process' which had an 'ulterior motive'. She said:

The Commonwealth strongly believes that this process has been one which is really for an ulterior purpose, not for the purposes of an ordinary workplace complaint.

And, as Senator Brandis has pointed out, when other members of the government made even more injudicious remarks about this litigation—such as the remarks of Senator Carr that have been referred to—as chief officer responsible for defending the court within the parliament Ms Roxon fell silent and refused to defend the proper processes and to ask her colleagues to refrain from commenting on these matters.

Putting to one side for the moment the fact that these are matters involving allegations of sexual harassment—and we have had a lot of lecturing from those opposite about the importance of respecting people's right to pursue matters of sexual harassment in appropriate circumstances—I want to contrast those comments by the Attorney-General with the obligations of the government and particularly the Attorney-General under the government's own guidelines for litigation. These are the Legal Services Directions, which govern the way in which the Commonwealth acts as a party to litigation. Those obligations are quite clear. They indicate, for example, that in the case of major claims—that is, claims above $25,000—in which the Commonwealth is involved, they are to be settled only if:

… written advice is received from the Australian Government Solicitor or other legal adviser external to the agency that the settlement is in accordance with legal principle and practice.

What is legal principle and practice? It is set out in the same Legal Services Directions, in appendix C, item 2, where it says:

Monetary claims covered by this policy are to be settled in accordance with legal principle and practice, whatever the amount of the claim or proposed settlement. A settlement on the basis of legal principle and practice requires the existence of at least a meaningful prospect of liability being established.

And it goes on to say:

In particular, settlement is not to be effected merely because of the cost of defending what is clearly a spurious claim.

How is that obligation on Ms Roxon, as the Attorney-General, not to settle matters which are spurious in nature consistent with her claims made earlier in the litigation that the claim brought by Mr Ashby was 'vexatious', an 'abuse of process', had an 'ulterior motive' and was executed with the 'clear intent of publicising it before it was filed'? You cannot have it both ways: a matter which is so flawed and so unworthy of consideration and then the government proceeds to put $50,000 of taxpayers' money into ending the litigation against the Commonwealth. Under the Legal Services Directions that govern the actions of the Commonwealth as a litigant, it was not open to Ms Roxon to settle this matter if it was indeed without merit. It clearly must have had merit for the claim to be settled in that way. There is no other interpretation of what has been done consistent with the Legal Services Directions.

If the government maintain otherwise, let them table the advice of respect to this matter. Why don't we see the advice? The matter has been settled; we do not need to worry about interfering with litigation. Let us see what the advice actually has to say. We have meetings of the estimates committees next week where I am sure that opportunity could be furnished by the government if they wished to do so.

The fact is this has been politicised from day one. This has been handled in a way most designed to defend this government's shaky hold on power by defending its special relationship with the Speaker of the House of Representatives, Mr Slipper, even to the point of allowing the judgement of individual members of the government to be clouded to the extent that a judge of the Federal Court had to say the other day that the behaviour of the Attorney-General, the first law officer of the Commonwealth, 'undermines public confidence in the courts'. I repeat: 'undermines public confidence in the courts'.

This has been yet another indication of how this Attorney-General has failed to understand her obligations towards the administration of justice in this country. She was quite prepared to make public prejudicial comment repeatedly when this litigation was at an early stage. But now when she has been humiliatingly forced to acknowledge that a settlement of $50,000 has been made towards Mr Ashby on that part of the litigation that she was directly involved with, she says that she does not wish to make further comment because the matter is before the courts. It was before the courts before when she said it was vexatious and an abuse of process and had an ulterior motive. It was before the courts then but there was nothing that the Attorney-General saw fit to do to prevent that kind of prejudicial comment going forward.

The comment of Senator Carr that 'this Ashby seems more rehearsed than a kabuki actor' is highly prejudicial, is highly inappropriate. Senator Carr went on to say: 'In Australia and around the world there are a lot more serious cases of infringement of human rights than this.'