Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Hansard source

I present the report of the Legal and Constitutional Affairs References Committee on the consultations prior to the making of directions concerning opinions of the Solicitor-General, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

It gives me no pleasure to affirm to the Senate chamber today that this inquiry has clearly demonstrated the unfitness of the Attorney-General to hold his high office and to affirm that he has misled the Senate with his statement in the explanatory memorandum to the Legal Services Directions and in answers to questions that he has 'consulted' the Solicitor-General. The A-G's claims to have consulted the Solicitor-General are so obviously misleading that they defy logic and show a complete disregard for any sense of proper process. This is not a finding I make lightly. It is formed after looking very carefully at the evidence provided to the committee. It includes the evidence from Senator Brandis, Mr Gleeson and other well-qualified witnesses.

The evidence also demonstrates that the failure to consult has had a serious impact on the confidence that we should have as a nation in the rule of law. The evidence further demonstrates that the failure to consult means that the Attorney-General was not in fact informed that the instrument that he implemented was wrong in law. As the committee has shown, the A-G has tried to use a completely fanciful definition of 'consultation' when interpreting the requirements of section 17 of the Legislation Act 2003. Senator Brandis himself in evidence said to the committee:

Let me address, or get to the heart of, what appears to be the real issue being considered by this committee, which is the question of what constitutes consultation for the purposes of section 17 of the Legislation Act ... The issue underlying this committee's inquiry boils down to a difference of opinion about the meaning of a word.

Senator Brandis provided a definition of 'consultation' to the committee. He said:

When I use the word 'consult' what I mean is to confer about, deliberate upon, debate, discuss ... a matter. When one consults someone, one asks their advice, seeks their counsel, has recourse to that person for instruction, guidance or professional advice. That is what I mean when I use the word 'consult' and it is clearly what my department considered the word meant when they drafted the explanatory statement. These are not some sort of idiosyncratic understandings of the word. They are ... the way the word is defined by the Oxford English Dictionary ...

Indeed, Senator Brandis handed to us in the committee his definition. I note that the definition handed to the committee included 'a person deliberating with himself'. Perhaps that is what the Attorney-General had in mind. However, Senator Brandis said very explicitly not merely that he had consulted but that he had consulted the Solicitor-General. It is clear that at no stage with respect to the Solicitor-General did the A-G ask the Solicitor-General's advice, seek his council or utilise recourse to the Solicitor-General for instruction, guidance or professional advice with respect to the new legal services direction. The facts speak for themselves. Let me briefly outline them.

The A-G argues that he undertook appropriate consultation at a meeting in November 2015 when considering suggestions on a draft guidance note. However, section 17 of the Legislation Act refers to consultation in relation to a proposed instrument. There was no proposed instrument at that point in time. Neither the Australian Government Solicitor nor the Secretary of the Attorney-General's Department made any reference to a new legal services direction in any record of that meeting. On 12 April, the Solicitor-General's office, on behalf of the Solicitor-General, made an inquiry of the Attorney-General's Department asking for updates on guidance note 11. That same day the department replied saying they would follow up with the A-G's office, but that they would not be able to respond immediately.

In giving evidence, Mr Iain Anderson, Deputy Secretary of the Attorney-General's Department, said they were aware of the new direction on 20 April 2016, and on 27 April and 28 April the department and the Office of Parliamentary Counsel liaised on the content of the draft direction. On 29 April the Solicitor-General's office again emailed the department inquiring about an update on guidance note 11. The department did not advise the Solicitor-General about the work undertaken, instead advising:

I understand the AG is writing directly to the SG about this.

We know from evidence that the Attorney-General substituted the guidance note to become the new legal services direction, but the fact is there was no liaison on either matter, despite the Solicitor-General's active inquiry. The first time the Solicitor-General was advised about the direction was when it was issued on 4 May 2016.

It is clear from the evidence provided by both the Solicitor-General and the Attorney-General that the Solicitor-General was not consulted on the direction, he was afforded no opportunity to comment on the specific content of the proposed direction and he was not informed of its development, or any intent to develop it. The Senate must take account of these facts, just as the committee has, when considering the ramifications of this report. In fact, as the committee highlights, it brings to mind the quote by Lord Atkin in the case of Liversidge v Anderson, where he says:

I know of only one authority which might justify the suggested method of construction. 'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean, neither more nor less'.

That is a quote, of course, from Alice in Wonderland. The report also says:

For the statement that the 'Attorney-General has consulted the Solicitor-General' to be true, the Attorney-General would have needed, at a minimum, to have advised the Solicitor-General of his intention to introduce a new instrument and provide him an opportunity to comment on its content.

He has therefore made what are very clearly false and misleading statements to this place.

I am not going to have time to go into the very clear undermining of the rule of law that arises from this legal services direction, but what I can say is that because of the failure to consult the Solicitor-General was deprived of an opportunity to highlight the ramifications of the instrument that was introduced, which are significant indeed, because they are 'a radical change in how Solicitors-General have acted since 1964 under the Law Officers Act'. That in fact means that the instrument itself is wrong in law. Indeed, what is also included in the instrument is the fact that the Solicitor-General is required to go through the Attorney-General before giving any advice. That is the nature of the substantive change and it has significant ramifications for the rule of law in our country, because the office of the Solicitor-General should be an independent one.

So in tabling this report today I affirm our recommendations:

That the Senate disallow the amendment to the Direction or the Attorney-General withdraw it immediately, and that the Guidance Note be revised accordingly.

  …   …   …

That the Attorney-General provide, within three sitting days, an explanation to the Senate responding to the matters raised in this report.

  …   …   …

That the Senate censure the Attorney-General for misleading the parliament and failing to discharge his duties as Attorney-General appropriately.