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

This disallowance before us today in this place is a matter of great gravity. In May this year the Attorney-General, Senator Brandis, tabled the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 in this place. The direction meant that no-one could refer a question of law to the Solicitor-General without the consent of the Attorney-General—not his most senior ministers, not even the Prime Minister. That was the intent of the legal services direction which the Attorney-General implemented. It was an extraordinary act, an act that put at risk the integrity of our legal system, and, indeed, I think, the integrity of this parliament. We have seen in this direction the undermining of the separation of government and the independence of our legal system. It is clear to us that Senator Brandis implemented the legal services direction in an attempt to undermine the independence of a statutory officer, the Solicitor-General, and he then went on to mislead the parliament about his conduct. The Attorney-General of our nation—the most senior law officer of our nation—did not comply with his obligation to consult on this matter.

After the damning inquiry into the legal services amendment direction, Senator Brandis went about to withdraw his direction. He did so in accordance with the recommendations of the committee report, I guess to avoid the embarrassment of having it disallowed in this chamber. And while I am pleased with the fact that Senator Brandis has complied with the recommendations of the committee report, the way he went about it in a somewhat sneaky manner without telling anybody demonstrates again his disregard for consultation, as he has never sort to explain his actions to this place. Despite the fact that the legal services direction has been withdrawn, it is critically important that this matter still be disallowed by the Senate, because the Senate must express its view and opinion on the matter of law at the heart of this matter, in terms of how opinions are sought from the Solicitor-General, so that it cannot happen again. It is why this disallowance is proceeding today.

If you look at the very problematic things about the legal services direction as it was tabled, there are some very significant issues with it that really demonstrate the Attorney-General's poor judgement. I refer to some of the evidence that Gavan Griffith QC gave to our committee. He was, in fact, the Solicitor-General for some 14 years from 1984 to 1997 under both Labor and Liberal governments. He construed the direction was in fact ultra vires and of no effect as a lawful direction in terms of its capacity to direct the Solicitor-General. Notwithstanding this, the intent of the direction is to withhold the Solicitor-General from being able to provide advice. Again, the direction is wrong on the basis of law.

Notwithstanding the fact that the direction is wrong on the basis of law, both Gavan Griffith and Ms Appleby talked to the committee about the chilling effect of this direction in creating roadblocks to appropriate, authoritative, welcome or unwelcome advice from the peak level of the second law officer, who, within the Commonwealth, is the leading counsel to the Commonwealth. In other words, it would keep government departments and agencies from seeking the proper advice through the proper channels of government.

Gavan Griffiths went on to say that one of the effects of the legal services direction is that it creates a propensity for government to shop around for advice. Indeed, this is what our current Attorney-General has done on a number of significant matters. This has also been highlighted in evidence to our committee. Gavan Griffiths gave some examples of that.

Lastly, the particularly problematic nature of this legal services direction and why it must be disallowed is that it highlights how the differences between the Attorney-General and the Solicitor-General should not be resolved during their continued incumbency by what Gavan Griffiths calls:

… inappropriate and destructive legislative or administrative measures being imposed which have the effect of destroying the independent office of SG—

that is, the Solicitor-General. These are incredibly important reasons as to why this place must look to supporting this disallowance so that the practice of the Attorney-General can no longer continue to pollute the way in which advice is sought from the Solicitor-General.

I want to highlight some other issues to do with the conduct of the Attorney-General when it comes to this disallowance. The failure of the Attorney-General to consult the Solicitor-General is one of the reasons why the incredibly problematic and wrong nature of the legal services direction was never brought to the attention of this place. It was never highlighted. That meant that the problems with the legal services direction never saw the light of day until it was implemented, which is an incredibly damning thing. The Attorney-General's conduct and his failure to meet his obligation to consult is why we have found ourselves in this place discussing this, as it would have been pointed out that the legal services direction is wrong in law and unimplementable.

But these kinds of actions are entirely consistent with a great many other issues with recent actions of our Attorney-General. We have a claim from the Attorney-General that he consulted the Solicitor-General. It is a blatant falsehood. This consultation never, ever occurred. Indeed, the Attorney-General made what are very clearly false and misleading statements to this place. For the statement that the Attorney-General had consulted the Solicitor-General to be true, the Attorney-General would at a minimum have needed to advise the Solicitor-General of his intention to introduce a new instrument and provide him with the opportunity to comment on its content. At no stage did the Attorney-General do this. Indeed, the only person who Senator Brandis consulted with in large part, it appears, was himself.

Senator Brandis has been caught out on this issue—and not for the first time—breaching one of the most fundamental requirements of our democratic system of government, and that is the principle of ministerial accountability to the parliament. He failed in this instance and in many other instances to meet the fundamental obligations of his office as our nation's Attorney-General—the protection of the independence of our courts and senior statutory office holders and the promotion of proper standards of conduct and the very basic fundamentals of ethical standards and integrity. You can see in this statement that I made that when you reflect on proper conduct he has failed to consult and he has undermined the rule of law in his relationship with this very important statutory office. And he continues to deceive and mislead this place.

He displays, I think, a glittering indifference to the truth of this matter. It is a very serious matter and one that the government and the Senate must also take very seriously. The Senate cannot and should not accept what Senator Brandis has put forward as an explanation. He has failed to meet his most basic responsibilities time and time again, and I think he is behaving in a way that demonstrates complete arrogance and disrespect for this place.

We should not allow this to happen again. Again, that brings me specifically to this disallowance motion. While the direction has indeed been withdrawn, it is important that we prevent this from happening again. It is important that we prevent this from happening again, because the Attorney-General has form on this matter. We know that he tried to interfere with the practice of the independence of the Solicitor-General and we must ensure that this cannot happen again.

While we cannot trust Senator Brandis to act with integrity on this issue, we therefore must take precautions to ensure that the integrity and the independence of our legal system is not further undermined by his actions. He does not have a great track record on these issues, and I would like to remind us of Senator Brandis's other poor pieces of judgement.

This is not the first time we have seen sneaky and misleading tactics from the Attorney-General. I will only have time today to outline just a few of them. Recently, the Attorney-General misled the Senate by claiming that Australia had the highest rate of economic growth of any G20 nation. This was indeed a falsehood. He claimed to have consulted the Aboriginal and Torres Strait Islander Justice Commissioner, Mick Gooda, before establishing the Don Dale royal commission, when no such consultation had occurred. He failed to consult the Solicitor-General about amendments to citizenship legislation concerning foreign fighters, then claimed publicly that he had consulted—yet again another falsehood: a glittering indifference to the truth. He is also refusing to answer important questions about this conduct.

He refused to answer questions in this place about his appointment of a Liberal donor and lawyer for a family member to the Administrative Appeals Tribunal. Again, I think this is disgraceful. He has breached cabinet rules by disclosing publicly the contents of confidential cabinet debate on national security legislation.

In estimates in May this year Senator Brandis gave evidence that his correspondence with the Lindt Cafe siege terrorist, Man Monis, had been provided to the Thawley-Comley review. He and foreign minister, Julie Bishop, followed up on this, saying that the review had assessed the Attorney's handling of that correspondence and found it did not give rise to any adverse findings. But, senators and Madam Acting Deputy President—guess what? This is another untruth from the Attorney-General. The review had never assessed that correspondence from Senator Brandis because Senator Brandis had not even provided that review with his correspondence. Can you believe it? Unfortunately, I can.

In 2002, Senator Brandis claimed that the Navy was in possession of statements which proved that an asylum seeker aboard an Indonesian vessel, the Sinar Bontang had tried to strangle his daughter. He claimed that statements were made by the crew of the Navy vessel HMAS Arunta, which intercepted the Indonesian vessel. However, what we know is that maritime commander Rear Admiral Geoff Smith later discredited Senator Brandis's claims, saying that no such statements existed. This did not stop Senator Brandis from peddling this story in the press gallery to get a front page in The Australianagain, a glittering indifference to the truth from Senator Brandis.

Senator Brandis, our Attorney-General, has also been interfering in police investigations. He has attempted to interfere in the conduct of an investigation into the Health Services Union. This included calling the New South Wales Attorney-General to pressure him into having the DPP investigate the matter and calling the New South Wales police minister to pressure him into having the police investigate and charge people as well. He also arranged for the New South Wales police minister to call and apply pressure to the police commissioner. All of those people should and have been properly prosecuted. However, it is not the place of our Attorney-General to interfere in those matters in terms of them needing to be politically independent police and investigative matters.

We also have examples of prejudice against international court cases. We know that in 2013 Senator Brandis, our Attorney-General, authorised an ASIO raid on the offices of a lawyer representing East Timor, and this happened just days before an arbitration with Australia in relation to a dispute over oil and gas reserves in the Timor Sea was due to commence at the International Court of Justice. The International Court of Justice subsequently ordered Australia to stop spying on East Timor and seal all the documents that had been seized in the raid to avoid prejudice to the arbitration. At the time, shadow Attorney-General Mark Dreyfus said that the international court orders damaged Australia's international reputation and were the direct result of Senator Brandis's inept handling of this matter.

It is these kinds of interfering acts that truly demonstrate why we cannot allow the prospect of another legal services direction to arise. We have here an Attorney-General who is completely out of touch with the standards that are expected from him in this role. He has misled the Senate and acted, I believe, without integrity. He has displayed a glittering indifference to the truth, not only on this matter but on a great many other important matters. He has demonstrated over and over again that he is not fit to hold his high office. It is mind blowing to me, and unacceptable, that Senator Brandis has been allowed to remain in his position. However, that is not the matter before us today. The matter before us is the disallowance, and I commend the disallowance to the Senate.