Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I rise to close the debate on this disallowance motion. I just want to make a number of comments, although I suspect mine will not be as amusing as Senator Watts'. Let's just recap what we are dealing with here. I moved this disallowance motion on Thursday, 10 November 2016. I did that in the context of the registration of the Legal Services Amendment (Repeal of Solicitor-General Opinions) Direction 2016 the very same day. That was Senator Brandis, the Attorney-General, putting in place an instrument which had the effect of repealing the amendment to the legal services direction that he previously had made and that I was moving to disallow. I observed then that, after all of the blustering, posturing and, frankly, mendacity of the Attorney-General, it had come to this: the Attorney-General reversing his own direction. He had been defending it for months. This is the direction he had been defending for months, the direction limiting the role of the Solicitor-General, a direction that I think on any fair reading has forced an honourable man, Mr Justin Gleeson, to resign from the position of Solicitor-General. Senator Brandis defended the direction for months but hours before it was set to be disallowed by the Senate he backed down and removed it himself to avoid embarrassment. It is really quite an extraordinary set of events. It has shown us a number of things, but it has certainly shown us one thing very clearly—that this direction was only ever about getting rid of Mr Justin Gleeson.

However, notwithstanding the repeal instrument registered by the Senator Brandis, I proceeded to move this disallowance motion—and I did so, as I have previously explained, in order to ensure that the Senate could protect its right to prevent the previous instrument being remade without its consent. So I am putting the motion to the Senate this evening in order to protect the rights of the Senate and to prevent an identical regulation being made by this Attorney-General within the next six months.

I just want to make a few comments about the substance. First, it is fundamental to our system of government that, when ministers exercise powers delegated to them by the parliament, they do so with integrity. Parliament empowers the executive to make regulations and other legislative instruments, but those powers should be exercised both in accordance with the law and not for improper purposes. I put it to the Senate that this Attorney-General's conduct in making this direction failed to meet those requirements and standards. It is a direction that undermined the independence of the office of the Solicitor-General, the second law officer of the Commonwealth. It curtailed the ability of ministers, departments, agencies, and office holders to seek legal advice from the Solicitor-General. It risked jeopardising the Commonwealth's ability to defend its interests in domestic courts, to protect the interests of taxpayers and to pursue Australia's national interests in international tribunals.

There are compelling policy reasons for the disallowance of this direction. But the problems with the direction lie not only in policy; there are legal flaws in the direction. Prior to its repeal, experts told the Senate Legal and Constitutional Affairs References Committee, the committee that considered this matter, that the direction was legally void and invalid.

There were also profound flaws in the process the Attorney-General had followed in making the direction. The failure to consult is one that has had a significant amount of attention. It ought be condemned not only because of the poor outcome it produced but also because it is demonstrably a breach of the law and a breach of the requirements under the Legislation Act for ministers to consult when making legislative instruments. Not only did we see the Attorney-General fail to consult before he made this direction; he then misled the Senate, because he told the Senate that he had consulted, when it is clear that he did nothing of the sort. In fact, he sought to hide, from the Solicitor-General, his plans for the direction.

In summary, the direction should be disallowed, even though it has effectively been repealed by the Attorney's backdown, to ensure it is not remade, because it is bad public policy; it undermined the independence of the office of Solicitor-General; it has adverse impacts on policy, legislation and litigation involving the Commonwealth; fundamental doubts have been raised before a Senate committee about its legal validity; it has been marred by the Attorney-General's failure to consult; and, frankly, the Attorney-General has misled the Senate over the direction. There are just a few of the substantive issues—