Jenny McAllister (NSW, Australian Labor Party) Share this | Hansard source

I rise on this matter of public importance because I have grave concerns, as have other speakers, about the situation that we find ourselves in arising from the actions of the Attorney-General. My concern is that by his actions he is undermining public confidence in legal administration and in the relationships between some of the most senior law officers in our system.

I want to talk a little as I begin about what is at stake, because there has been a suggestion in some of the remarks today from the Attorney-General that these matters are trifling, that they are insignificant and that they go to mere formalities rather than questions of substance. I want to put it to you, Mr Acting Deputy President, that that is not the evidence that is before us. There are quite significant disagreements and significant questions of a legal principle at stake in the matters that are before the Attorney-General, and in his attempt to gloss over those and to cast them simply as formalities he does no service to public debate in this country.

The first question I wish to address is this idea propagated by the Attorney-General that in issuing this directive he is simply codifying long-standing arrangements and indeed requirements of the legislation. In fact, the requirements of the legislation are not straightforward and there are many who will contend that they are not met by the directive that has been issued by the Attorney-General. In fact, the Solicitor-General is amongst those who dispute that. In his submission to the inquiry he makes the point that section 12 of the Law Officers Act sets out the roles of the Solicitor General:

They are that the Solicitor-General "act as counsel" for a range of persons and bodies, including the Crown in the right of the Commonwealth, the Commonwealth, a Minister and an officer of the Commonwealth—

That is in section 12(a). Also, that the Solicitor-General:

… furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General;

That is in section 12(b).

What is important is that in many of the opinions that have been issued over the years about the interaction between these two provisions, there is a clear sense that section 12(b) does not limit section 12(a). That is to say that whilst section 12(b) provides that the Attorney-General may refer matters to the Solicitor-General, it does not limit the Solicitor-General's obligations under section 12(a) to act as the counsel for a range of entities within the framework of the Commonwealth. It is not the case that what is under discussion is a mere codifying of the legislation, and it is not the case that this is a settled question. Indeed, Sir Anthony Mason has written:

It is not to be implied from this qualification—

section 12(b)—

that the Solicitor-General cannot furnish an opinion to the Commonwealth or its emanations without a request from the Attorney-General. As Solicitor-General I was instructed by the Crown Solicitor and the Attorney-General's Department to advise departments and other Commonwealth agencies without any express approval by the Attorney-General being communicated to me.

There are a range of views about this question and it ought not to be taken as given that the direction that has been issued is in accordance with the legislation.

Similarly, there have been assertions in the discussions in this chamber today that the guidance note and the direction are essentially the same thing. As the Solicitor-General's evidence points out, they are not the same thing. The reason that they are not is because they have a very different standing and a very different status in the way that they function. The guidance note is essentially a policy document prepared by the Office of Legal Services Coordination. It is flexible. It can be amended at any time by the Office of Legal Services Coordination, and that is historically done in close consultation with the Solicitor-General of the day. It need not be strictly followed if circumstances require, and indeed there are no penalties available for a failure to follow the procedures set out in the guidance note. By contrast, a legal direction is a very different beast. It is a legislative instrument, it is made under the Judiciary Act 1903 and it forms part of the Legal Services Directions 2005. The direction is binding. It is binding on those who perform Commonwealth legal work, and the Attorney-General may impose sanctions for noncompliance. It is one thing to set out a set of preferred practices in a guidance note. It is quite another to codify them in a legal instrument that emanates under a piece of legislation against which sanctions are attached.

I say this: I do not come to this chamber with a background in the law, and I am perfectly willing to concede that there are minds much finer than mine that could address themselves to these questions. There are plainly differences about the interpretation of the legal services act, and they are manifest in the way that these issues have been presented in the public debate. But I will say this: on a question where there is controversy, where there is so significant a difference between the different people involved in the conversation, I would have thought that that was an occasion when the Attorney-General might have engaged in meaningful consultation. He might have meaningfully engaged, for example, the Solicitor-General about the consequences of issuing a direction in the way that he did. He might have gone to others in the profession and sought their counsel about what the consequences would be of codifying the practices around obtaining legal advice from the Solicitor-General in this way. But what is very clear is that that meaningful, substantial consultation has not taken place.

I note that in all his remarks the Attorney-General has sought to narrow down the idea of consultation to some sort of formal procedure, a tick and flick—'Tick the box, and then we can say, "Oh, yes, we did the consultation within the narrow confines of the act."' Well, consultation, when we are talking about good government and good administration, is not simply a tick and flick. It is a process of obtaining meaningful advice to allow you to make good law, to make good legislation and to act in the best interests of the Commonwealth in pursuing your duties—in this case, as the Attorney-General.

It is most disappointing to see that the consultation around this question has been desultory, because, despite the Attorney's protestations, we have the Solicitor-General saying quite plainly, in no uncertain terms, that he has not been consulted. The Attorney-General has maintained publicly that he did consult the Solicitor-General regarding the making of the directive, and that statement has been vehemently denied by the Solicitor-General. When we look at what the Attorney relies on, he relies on the fact that at some point back in November last year it appears a meeting took place to discuss the arrangements by which legal questions would be referred to the Solicitor-General. The way the Attorney has approached this is very curious to me, because he really does not maintain a consistent story, I believe, about what happened. He, of course, maintains that there was consultation at the meeting on 30 November, but in the parliament today, when asked about it, he said, 'I did not approach the meeting of 30 November 2015 with any preformed view as to how the issue which had been raised with me by the Solicitor-General should be dealt with. The purpose of that meeting'—and these are his words—'was to listen to what the Solicitor-General had to say to me and have a discussion with him so that we could proceed to fix the problem he had identified.' I do not understand how that can possibly be consistent with the other story, which is that the purpose of that meeting was to consult on the issuing of a legal services directive. These are two entirely different ideas.

We have also heard evidence from a range of departmental figures that what was discussed at that meeting in no way went to an issuing of a binding directive which would significantly constrain the activities of the Solicitor-General. I am most concerned about where we find ourselves. I think the Attorney-General has done himself no good service and has done no service to our Commonwealth.