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

We have a situation where the Attorney-General has sought to establish himself as a gatekeeper to the Solicitor-General, and, extraordinarily, this would extend to such circumstances as the Governor-General seeking legal advice from the Solicitor-General. The Governor-General could seek legal advice from the Solicitor-General in a range of areas and for a range of reasons, but it is not difficult for us to apply our minds and think about some of the circumstances in which the Governor-General would seek advice from the Solicitor-General. Those could include, but not be limited to, such circumstances as the Australian people electing a balance of power House of Representatives, for example. A situation where the Governor-General needs to go through an Attorney-General to seek advice from the Solicitor-General is quite extraordinary when you think about the implications that may exist if in fact there is no party elected to a majority in the House of Assembly—sorry, the House of Representatives. I was back in Tasmania there briefly! Seeking to establish himself as a gatekeeper to the Solicitor-General is no doubt part of the reasons that the Attorney tabled this Legal Services Direction into the Senate, and it is part of the reason that the Greens support this disallowance motion that we are currently debating.

It is worth pointing out that this Legal Services Direction was tabled on 4 May this year, which was the last sitting day before the election was ultimately called. This was a last-minute attempt by the Attorney-General, presumably in the full knowledge that an election was about to be called, to establish himself as a gatekeeper to the Solicitor-General. And of course that matter—that is, the intent to establish himself as a gatekeeper—was the subject of a number of submissions and a number of pieces of evidence to the committee that inquired into this matter and that I was a member of. It is worth quoting Associate Professor Gabrielle Appleby from the University of New South Wales, who is the author of The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest.Associate Professor Appleby stated that 'there could be a chilling effect on ministers wanting the Solicitor-General's advice' if they have to get the Attorney's approval and signature to do so. She also said it:

… is an assertion of control by the Attorney-General over the Solicitor-General for no immediately perceptible reason.

Other expert opinions have been offered to the committee, including one from former Queensland Solicitor-General Mr Walter Sofronoff QC, who went so far as to say that what the Attorney-General has done is invalid. He said, 'His reliance on the Judiciary Act 1903 is misconceived and wrong in law.'

We also heard from Professor Appleby in the evidence that she provided to the committee:

The issue of the direction, in my view, demonstrates a serious incursion by the Attorney-General into the Solicitor-General's role, and the process that preceded the issue of the direction demonstrates a lack of trust and a lack of respect by the Attorney-General for the office of the Solicitor-General, particularly in respect of the function, the status and the independence of that office. This raises, in my mind, serious concerns for the rule of law.

So we have Associate Professor Appleby, who is widely acknowledged as one of the foremost experts, if not the foremost expert, in the country on the role of solicitors-general, saying that in her mind the Legal Services Direction raises serious concerns for the rule of law.

We have heard from former Solicitor-General Dr Gavan Griffith QC, who was very critical of the Legal Services Direction and stated that he regards it as 'effecting the practical destruction of the independent office of the second law officer'. I will reflect there personally that by referring to the second law officer he is referring to the Solicitor-General or the office of the Solicitor-General. Dr Griffith also stated that the Legal Services Direction led to:

… perceptions as to the integrity of the continuing office. The uncomfortable image of a dog on a lead comes to mind.

So we have here a former Solicitor-General calling to mind what he describes as the uncomfortable image of a dog on a lead. I think that is useful imagery for the Senate in regard to this direction, because it very graphically outlines the effect of this direction and the fact that undoubtedly it seeks to position the Attorney-General as a gatekeeper to the services of the Solicitor-General. Dr Griffith also commented on the legality of the direction and said, 'The direction is void and of no legal effect.' His argument was that the legislation providing the basis for the direction was not intended to apply to work undertaken by the Solicitor-General. According to Dr Griffith, it is untenable to argue that the reach of section 55ZF of the Judiciary Act 1903 extends to the Solicitor-General.

We come to the evidence of the Solicitor-General himself as presented at the inquiry, and he said:

… it is critically important that persons such as the Governor-General, Prime Minister and officers of Parliament are able to approach the Solicitor-General for advice in an uninhibited fashion and in respect to questions framed by them and not by others. They should be able to do so not just where litigation is before a court or anticipated but whenever it is necessary to ensure the law, including the Constitution, is complied with.'

And I can place on the record that the Australian Greens agree entirely with that comment from the former Solicitor-General, Mr Justin Gleeson.

The direction clearly, in the view of the Greens, undermines the role of Solicitor-General insofar as it permits an Attorney-General to deny access to a Solicitor-General and has the potential to discourage people and bodies from seeking the Solicitor-General's advice. That is one of our core concerns with this legal services direction. It is certainly not apparent that the direction is supported by section 55ZF of the Judiciary Act, because the legislative history and the context of 55ZF indicate that it was not intended to empower the Attorney-General to make directions with respect to the Solicitor-General.

While the legality of this instrument is certainly in question, what is not in question is the Attorney's claim that he consulted the Solicitor-General on the matter. The explanatory memorandum to this direction clearly stated:

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.

As we heard in evidence to the committee, the Attorney relied on a fanciful definition of 'consultation'. At the end of the day, the dispute over whether or not the Attorney had actually consulted pivoted on what a reasonable interpretation is of what the word 'consulted' or 'consultation' actually means. That has led us to the Humpty Dumpty quote that has been well aired in this chamber and was included in the committee's report.

In this place we are entitled to interpret words reasonably. In fact, we ought to interpret words reasonably. Even on the most favourable interpretation of the interaction between the Attorney and the Solicitor-General on this matter—the most favourable interpretation for the Attorney, that is, which is that it was raised, as supported by the note from his adviser that contained the initials 'LSD'—even on the most favourable interpretation, that, on no reasonable definition of the word 'consultation', actually satisfies what I think an average Australian would take to be a genuine consultation.

So even if you provide the Attorney-General with the benefit of the doubt—that the initials LSD actually did mean 'legal services direction', and I think we can all agree that that benefit should be given to the Attorney—that does not constitute a genuine consultation. The view of the Greens is to support Mr Gleeson's contention that he was not consulted on this matter. So we reject the Attorney's frankly pathetic argument that he did engage in a consultation, and the Australian Greens accept the view of Mr Gleeson that in fact he was not consulted.

It is worth noting that, when asked if any officers in the Attorney-General's Department had consulted him on the direction, the Solicitor-General replied:

… I said to them, 'In the period leading up to 4 May, you must have known about this direction. You were helping draft it. The Parliamentary Counsel knew about it. The Attorney knew about it. His staff knew about it. How on earth could it have been that the one person who needed to know was not told?'

I will repeat that. This is the former Solicitor-General, Mr Gleeson: 'How on earth could it have been that the one person who needed to know was not told?' That is a question that the Attorney has not adequately responded to and that the government has not adequately responded to.

From the Australian Greens' point of view, that is a question that demands an answer. How on earth could it have been that the Attorney-General knew what was going on; the Attorney-General's staff knew what was going on; the Attorney-General's Department knew what was going on—as Mr Gleeson points out, they were helping to draft it—Parliamentary Counsel knew what was going on, as they were drafting it; but nobody told the Solicitor-General? This is extraordinary stuff. It is further evidence that the Attorney was not treating the Solicitor-General with the respect that he deserved.

I say 'further' evidence because the letter that was provided to the Legal and Constitutional Affairs References Committee by both Mr Gleeson and the Attorney, which is a letter dated 12 November 2015 to the Attorney-General from Mr Gleeson, the then Solicitor-General, copied to Mr Moraitis, the Secretary of the Attorney-General's Department—we know from that letter that in fact there were issues with the way the Attorney was relating to the office of the Solicitor-General well before this matter arose. To substantiate that statement I rely on parts of that letter which make it clear that, in regard to a proposal from government to suspend or revoke a person's Australians citizenship, advice was initially sought and provided from the Solicitor-General's office; but then, as the Solicitor-General notes in that letter:

In March 2015, as I learned much later, the proposal was significantly revised within the Department of Immigration and Border Protection. For the next three months, the proponents of the Bill obtained various advices from the Australian Government Solicitor on the revised proposals. Almost by accident, the matter came to my attention again in June 2015. At that point, on request, I advised (SG No 10 of 2015)—

And there is a redaction that covers what the advice actually was. Then, subsequent to another iteration of advice from the Solicitor-General, which is SG No. 14 of 2015, the bill which was introduced into the parliament, as the Solicitor-General says in the letter:

… some 24 hours later reflected new changes that were made without seeking my further advice.

What this letter exposes, not only in regard to proposals to strip citizenship from certain people, but also in regard to a proposal relating to marriage equality, is that the Attorney-General, Senator Brandis, has been caught out shopping around for politically convenient legal advice. He has gone to the Australian Government Solicitor for constitutional advice. We know he has recently even gone to the private bar for constitutional advice on the Migration Act bill which is currently before this parliament. What is stopping the Attorney-General from going to the office which was established in part to provide constitutional advice for the government? It is open to us in this place to assume that Senator Brandis was shopping around for politically convenient legal advice because he did not believe he was going to get the advice he wanted from Mr Gleeson or Mr Gleeson's office, and therefore he went to the Australian Government Solicitor and—on more than one occasion, we believe—to the private bar. That is one of the problems we have that has been exposed by this entire sorry saga.

I only have a few moments left, and I want to say—to my great regret and the great regret of many—this saga has led to the resignation of Mr Gleeson. I believe Mr Gleeson did the right thing in resigning, because, as he said in his resignation letter, the relationship between him and the Attorney had become untenable. I believe that that is true and accurate. It had become untenable, but I want to place on the record that it became untenable because of the actions of the Attorney-General, not the actions of Mr Gleeson, the former Solicitor-General. The legal services direction disallowance motion that we are currently debating has the strong support of the Greens. This sorry saga has exposed the Attorney as not having the capacities to adequately fulfil that role. (Time expired)