Linda Reynolds (WA, Liberal Party) Share this | Hansard source

I too rise to speak with respect to the urgency motion put by Senator Gallagher regarding the 'alleged' failure of the Attorney-General, Senator the Hon. George Brandis, to uphold the standards expected of the first law officer of the Commonwealth.

As Senator Watt just noted, the Legal and Constitutional Affairs References Committee is still conducting an inquiry into this matter. This issue not only dominated question time; it is now subject to this urgency motion. As a member of the committee, as well, I think it is entirely inappropriate that we are here being forced to debate an issue that is still before the committee and before the Attorney-General has even had the opportunity, this Friday, to present his testimony to the committee.

Senator Watt also said that it was not about the Solicitor-General; it was about him being attacked by the Attorney-General. There was a lot of commentary about the Attorney-General, but there were few, if any, facts of the matter that were actually addressed in his speech just then. He also talked about this being a serious attack on the rule of law. Well, nothing I have seen as a committee member and nothing that I have seen so far in this chamber, in terms of the debate today, give any evidence of that. The Attorney-General is the first law officer of Australia, and, accordingly, he is the decision-maker. The second legal officer of Australia is the Solicitor-General, and his role is clearly advisory.

So, what is the context to this? On 4 May this year the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 and the associated changes to the guidance notice were signed off by the Attorney-General. Not only was I surprised to find that we are debating this here today, but I was also most surprised to see that the chair of the Legal and Constitutional Affairs References Committee had not even invited the Attorney-General to put in a submission. After the Attorney-General had, on his own initiative, I understand, put a submission to the committee, it is no wonder to me at all that the Labor Party did not ask the Attorney-General, the subject of this, to put a submission in in the first place.

Even just listening to the debate and the discussions earlier, it is very clear that consultation occurred. What is happening here is that the Labor Party is running what I think can only be described as a pedant's argument on the definition of consultation, because even they have to admit consultation occurred. The only real question is whether it satisfied the test, because ultimately the Attorney-General, as the decision-maker, takes advice from the Solicitor-General, and then he makes his own determination, as it should be.

So, far from any evidence I have seen so far, this is not an attack at all on the Solicitor-General. But, as Senator Watt and previous Labor speakers in motions to take note of answers suggested, it is more about not taking the full Solicitor-General's advice word for word. That is not unusual. It is certainly appropriate for him to be consulted on the advice, for the advice to be considered and then for the Attorney-General to take the final decision.

Let's have a look at the definition, if the pedants on the other side really want to have a discussion about consultation and what it actually means. The Macquarie Dictionary provides the meaning of consultation as the 'act of consulting' or 'a meeting for deliberation'. Clearly, the evidence shows that occurred between both parties. The Oxford Dictionary defines consultation as 'seeking information or advice from someone, or to have discussions with someone'.

Again, the advice, which even those opposite have conceded today, clearly shows there was extensive and longstanding discussions and consultations between both parties. Now those opposite and the Solicitor-General may not like the final decision the Attorney-General made, but that is really, as far as I can see, not relevant, because it was done in accordance with procedures.

The matters in relation to the requirement to amend the direction and guidance note were raised formally. I have heard almost nothing from those opposite about the substantive issue at hand and what is in the guidance directive. The Solicitor-General himself, in a letter dated 12 November last year, requested to meet the Attorney-General to discuss issues in the current direction and guidance note, specifically in relation to the requirement that any request for advice to the Solicitor-General must go through the Attorney-General. Other ministers and their departments had been going directly through to the Solicitor-General. So he asked the Attorney-General to discuss it with him and the Attorney-General did. That request was on 12 November last year. The Attorney-General met with the Solicitor-General on 30 November to discuss the very issues raised by the Solicitor-General. Already this is sounding to me like consultation. On 11 March, 14 weeks after that meeting, at the request of the Attorney-General the Solicitor-General provided his feedback on the issues to hand. These matters were considered by the Attorney-General.

In the Attorney-General's submission he noted that he considered that 'this consultation was appropriate and sufficient for the purposes of section 17 of the Legislation Act.' So, not only can it be demonstrated that they had two-way consultation over an extended period of time on this issue but also the Attorney-General said that he believed that the consultation was appropriate to meet his requirements under section 17 of the Legislation Act. Notwithstanding the Attorney-General's own interpretation—that he acted in accordance with section 17—the Attorney-General's Department also confirmed that the Attorney-General had met that requirement to consult under section 17. In fact, the department made the following statement in their own submission to the inquiry. I will read it word for word, because it gives the complete lie to everything those opposite have said so far:

Section 17 provides that before a rule-maker makes a legislative instrument, the rule-maker must be satisfied that any consultation that is considered to be appropriate and is reasonably practicable to undertake, has been undertaken.

That is what the Attorney-General said that he believed had occurred. The department goes on:

Due to the nature of the power exercised by you [the Attorney-General] under s 55ZF of the Judiciary Act 1903 and the subject matter of the instrument, [the department] considers that your [the Attorney-General's] consultation with the Solicitor General would meet this obligation.

So, not only is there evidence of consultation on matters raised by the Solicitor-General and submissions backwards and forwards and discussions backwards and forwards; you also have the Attorney-General believing that he has consulted in accordance with his legal requirements and the Attorney-General's Department also confirming that that consultation occurred.

It was only after this confirmation from the Attorney-General's Department that the Attorney-General issued the direction, explanatory statement and guidance note which, according to his evidence and the evidence from the department, was almost identical—or very, very similar—to the suggestions received by the Attorney-General from the Solicitor-General. Again, coming back to the substance of this issue, nobody, but nobody, in this chamber—or, I believe, in the inquiry—has said that the direction is necessary. It resulted from the Solicitor-General himself, who said, 'Attorney-General, we need to fix this. This is what I believe needs to be done.' That is what the Attorney-General did. That may not have been word for word what the Solicitor-General advised, but, as the Attorney-General, it is his decision—if he wants to make some amendments to the advice he got, that is his right as the first law officer and decision maker of this nation.

Some of the suggestions from those over in the east, made in rather florid and colourful language, are that the Attorney-General is deliberately subverting the rule of law in this matter and is trying to undercut the Solicitor-General. They provided not a shred of evidence to support that case. Let us have a look at some of the facts. Neither the direction nor the guidance note changes the Law Officers Act 1964, which is the law setting out the Solicitor-General's role and functions. It changes nothing in relation to the Solicitor-General's role. Section 12 of the act sets out the statutory functions of the Solicitor-General. Paragraph 12(b) provides that one of the Solicitor-General's three functions is 'to furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General.' Except where the Solicitor-General is acting as counsel under paragraph 12(a) of the act, which is irrelevant to the legal services direction, the Law Officers Act explicitly provides only one circumstance in which the Solicitor-General may provide an opinion to the government on a question of law, and that is where the Attorney-General refers that question to him. That is exactly the issue the Solicitor-General asked the Attorney-General to look at, because ministers, or departments on behalf of ministers, were going directly to the Solicitor-General, which is specifically against his charter in the Law Officers Act 1964.

The office of Solicitor-General was created in 1916 for the very purpose of assisting the Attorney-General in the performance of his duties, including his role as the principal legal adviser to government. However, over the years a practice developed across government whereby briefs were being sent directly to the Solicitor-General in contravention, as I have said, of the Law Officers Act. This new direction establishes a whole-of-government procedure that gives effect to paragraph 12(b) of the Law Officers Act. Nobody in the committee, and certainly nobody opposite, has addressed the substance of the issue: this direction was at the request of the Solicitor-General. He wanted this issue raised because he was having issues and requests for legal opinion referred to him by other ministers, which is in contravention of his requirements under the Law Officers Act. That is very, very clear.

These arrangements that have been introduced do not limit the independence of the Solicitor-General in any way. They do nothing to change the effect of the Law Officers Act at all. Not one speaker on the other side—apart from attacking the Attorney-General and using this as an opportunity to bring up other issues where they have a bit of bile on their liver about the Attorney General—has provided one shred of evidence about how these arrangements limit the independence of the Solicitor-General. They do absolutely nothing to change the effect of the Law Officers Act. They simply establish a procedure that allows government bodies and agencies to refer questions through the Attorney-General. (Time expired)