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

Right through this sorry saga the Attorney-General's behaviour has been rife with evasion, with obfuscation, with delay and in fact with arrogance. He has arrogantly refused to answer questions, he has arrogantly failed to respond to questions on notice within the time frame set by the Legal and Constitutional Affairs References Committee, and that arrogance has been topped off today by the Attorney-General telling the Senate that he knows better than that massive body of work, put together by a rank of experts in Senate practice, contained in Odgers'. I want to be clear about this: I have seen strongmen rip up phone books in my time, but to see an Attorney-General come in here and basically rip up Odgers' this morning is something I never thought I would see.

I want to say to the Attorney that my experience in parliaments is that when a stoush emerges or differences emerge between parliaments and executive governments, parliaments tend to win. When you think about it, that is logical, because it is executive government that flows from parliament, not the other way around. The pre-eminent institution in our democracy is this parliament. It is not the cabinet, it is not the office of the Prime Minister and it is certainly not the office of the Attorney-General. We are debating right now in the pre-eminent institution of our democracy, the Commonwealth Parliament of Australia, and what we say goes, not what the Attorney-General, Senator Brandis, says.

I want to address now the issue of legal privilege. The first point to make is the obvious point that the Attorney-General has continually missed in this debate—that is, that legal privilege is his to waive. Governments right through Australia's history have from time to time chosen to waive legal privilege and provide matters that otherwise would have been covered by legal privilege, because it was in their political interests to do so. I have seen it on many occasions, both in the Tasmanian parliament and, before I was a senator in this place, through the media in relation to governments at a national level in this country. Make no mistake: the Attorney-General could right now waive legal privilege and provide the information that the Senate is asking for. The fact that he is not doing that shows that he has something to hide here. It is not good enough to him to rely on what he describes as a 'lengthy precedent of governments of all stripes in this country'. The Attorney could waive legal privilege, if he wanted to, and he could provide that advice to the Senate right now. It is his gift to give, but he is not giving the gift, presumably because he has something to hide. This is why we need to see the advice that this motion or the motion previously passed by the Senate refers to.

The second point to make—and this the question I put to the Attorney that he did not go to in his answer—is that clearly the precedent of this Senate is not to accept a simple claim of legal privilege as grounds for a successful claim of public interest immunity. That is the long precedent of this place. We need from the Attorney a proper claim of public interest immunity that outlines in detail the public harm that he claims would flow from releasing the legal advice. That is certainly what the Australian Greens expect from the Attorney-General.

The third point to make, and I go to the specific matter of the Attorney's awareness of the ATO's decision to seek legal advice on what their position would be, is should the Attorney issue a direction that the ATO not intervene in the Bell Group matter in the High Court. He has taken that on notice, and I hope that he does a better job of meeting the requirements of matters on notice than has been his unfortunate track record in the past, where we have seen many dozens of failures from this Attorney to respond within the appropriate time frames to questions put on notice.

It is important that we all understand that the ATO heard what they described as bureaucratic whispers that the Attorney was considering issuing a direction that the ATO not intervene in the Bell Group matter in the High Court. So clearly this was the discussion at senior levels of the Commonwealth bureaucracy—and so it should have been, because it would have been almost unprecedented had the Attorney decided to issue a direction to effectively prevent the ATO from maximising its opportunities to recover the moneys it believed were owed to Commonwealth coffers as a result of the matters in Western Australia, with the winding up of the Bell group of companies.

We need to know what the Attorney knew and when—and when I say 'the Attorney' I include all of his staff. I have been a minister in the Tasmanian government, and we all know what your staff do is in effect what you do. When a staff member tells someone something, it is as if the minister told them himself or herself. So we need to know what the Attorney and his staff knew about the ATO seeking legal advice on their position should the Attorney have directed them not to intervene, when he became aware of it, and what happened either in his office or from his office out into any part of the bureaucracy in this country, including the Solicitor-General's office, once he became aware of that fact.