Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I had a very measured start to my contribution planned, but it has been sidetracked somewhat by the latter part of the contribution from the member who has just resumed her seat, Senator Reynolds, because she has said words to the effect that this instrument, the Legal Services Amendment (Solicitor-General Opinions) Direction 2016, has come about as a result of a request that the Solicitor-General made. That is an outrageous characterisation of the Solicitor-General's actions with regard to this matter, which began on 12 November when the Solicitor-General wrote to the Attorney-General to raise concerns regarding what he, the Solicitor-General, believed to be insufficient procedures in place around how and on what basis the Solicitor-General was briefed. That letter makes it very clear that the Solicitor-General had concerns that:

… insufficient procedures are in place to ensure, first, appropriate coordination within Commonwealth agencies, and between agencies and my office, in matters of high legal importance—

and, secondly, concerns about the accurate public representation of the Solicitor-General's advice. This second matter has not been discussed at length during a lot of the conversation on this matter but if I have time I will go to it, because I do believe that it is strongly arguable that the Prime Minister has deliberately misrepresented, publicly, advice that the government received from the Solicitor-General. Of course, that is a very serious accusation and one that demands a response from the Prime Minister.

In the Solicitor-General's letter of 12 November he goes on to discuss Guidance Note 11, which in effect sets out the manner in which the Solicitor-General is to be briefed. That is all reasonably unremarkable in terms of the Solicitor-General raising his concerns and discussing the guidance note, but the Solicitor-General in that letter then gives examples that show clearly that the government, through the Attorney-General, is shopping around for legal advice. I am going to come back to that later, because it is a really serious matter, but first I want to go to the matter of consultation.

I do agree with something that the previous speaker said, which is that there is little doubt, there is no contention, that a consultation did occur between the Attorney-General and the Solicitor-General. The question that needs to exercise the mind of every senator and the mind of every member of the Legal and Constitutional Affairs References Committee—and I am one of the members of that committee—is: what was the subject of the consultation that occurred? There is little or no doubt that consultation occurred around a guidance note. Where there is an issue of concern for the Attorney-General, and where arguably he has a problem, is on the question of whether there was consultation on the Legal Services Amendment (Solicitor-General Opinions) Direction 2016, a statutory instrument. The Attorney, in the explanatory memorandum that went with that statutory instrument, said:

As the Direction relates to the process for referring a question of law to the Solicitor-General, the Attorney-General has consulted the Solicitor-General.

My reading of those words leads me to form, I think quite reasonably, the view that the Attorney is suggesting in his explanatory memorandum that he has consulted the Solicitor-General on the direction—that is, on the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. One issue that the Attorney has is that the general obligation to consult, which is contained in section 17 of the Legislation Act, specifically references legislative instruments. The guidance note is not a legislative instrument. What is a legislative instrument is the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. Section 17 of the Legislation Act says:

Rule-makers should consult before making legislative instruments

(1) Before a legislative instrument is made, the rule-maker must be satisfied that there has been undertaken any consultation that is:

(a) considered by the rule-maker to be appropriate; and

(b) reasonably practicable to undertake.

Again, on face value that relates to consultation around a legislative instrument—in other words, the direction. It does not relate to consultation around the guidance note. In any event, I believe it is known publicly that both the Attorney and the Solicitor-General will be appearing before the committee on Friday of this week, and that issue will no doubt be discussed at some length with both of them.

I want to go now to the issue of shopping around for legal advice. As I have said publicly, seeking legal advice is not like using a dating app. The Attorney-General has a solicitor-general in place to assist him in one of his primary functions, which is providing legal advice to government, to cabinet, in particular on whether or not a piece of legislation is likely to be in accordance with the Constitution. I will be clear here: there are circumstances where it would be appropriate for the Attorney-General not to seek advice from the Solicitor-General—for example, when the Solicitor-General has a conflict or when there is a legitimate perception that the Solicitor-General may have a conflict. But what we know, because of this letter that the Solicitor-General sent the Attorney-General, is that on areas of extreme legal significance and importance, such as the legislation that proposes stripping citizenship from some Australian citizens, and on issues that are so important to the fabric of our community, such as marriage equality, the Attorney-General has been shopping around for legal advice, presumably because he knew that he would not like the advice he got from the Solicitor-General.

So what he did was not go to the Solicitor-General and take advice from the Solicitor-General and then if he did not agree with it go out to market and get advice from somewhere else. That would be problematic, but not as problematic as what the Attorney-General did. What the Attorney-General has done is to ignore the Solicitor-General, presumably because he thought he would not like the advice, and go out to the private bar and to the Australian Government Solicitor for legal advice, particularly around citizenship and marriage equality—two extremely important pieces of legislation that the Attorney-General effectively sidelined the Solicitor-General on. How do we know that? Because the Solicitor-General wrote to the Attorney-General complaining about what had happened, and that letter has been sent by the Solicitor-General to the Legal and Constitutional Affairs Committee.

It is quite outrageous that something as serious and as drastic as removing citizenship from an Australian citizen was not, in the final form it was put in before this parliament, based on legal advice from the Solicitor-General. When the Attorney-General goes to the Australian Government Solicitor—let's be clear here—he is effectively seeking advice from his department, because the AGS is part of the Attorney-General's Department. Why would this parliament bother to create the statutorily independent office of the Solicitor-General if it intended that the Attorney-General should just work around it?