Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Hansard source

The Senate agreed to an order on 5 February 2020 which requires the Minister representing the Attorney-General to table advice provided to the Attorney-General, including by the Australian Government Solicitor, in relation to the legal authority of the Minister for Sport to undertake an approval role for funding decisions under the Community Sport Infrastructure Program. The Attorney-General wrote to me providing advice in relation to this order, which I have accordingly tabled.

It is a longstanding practice of successive Australian governments not to disclose privileged legal advice. Australian governments not disclosing privileged legal advice is a well-established convention and one that has been reiterated on a number of occasions. Notably, former Labor government Attorney-General the Hon. Gareth Evans AC QC, in 1995 said:

Nor is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle.

More recently, in 2011, another former Labor minister, the Hon. Joe Ludwig, put the position as follows:

To the extent that we are now going to go to the content of the advice, can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.

I also note that, in the correspondence provided to the Senate, the Attorney-General has reiterated the advice of former Attorneys as well as Gareth Evans AC, QC: the Hon. Daryl Williams QC and the Hon. Philip Ruddock MP. The government maintains that it is not in the public interest to depart from this established position which has been maintained over many years by successive governments. It is essential that privileged legal advice provided to the Commonwealth remains confidential. Access by government to such confidential advice is in practical terms critical to the development of sound Commonwealth policy and robust lawmaking.