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

I move:

That the Senate take note of the answers given by the Attorney-General (Senator Brandis) to questions without notice asked by Opposition senators today relating to the Solicitor-General.

Today we saw the same old George on display—the same slipperiness, the same word games and the same fundamental lack of decency. Yet again, we have seen that this Attorney-General is one who fails to meet the fundamental obligations of his office. He is a serial offender. On so many occasions, over an extended period of time, he has demonstrated to the Senate his arrogance, his contempt and his failure to be upfront and clear and honest with this chamber. Senator Brandis's latest effort is an attempt to undermine the independence of a senior statutory office holder, the Solicitor-General, and then mislead the parliament about his conduct. Let's have a look at the facts.

On 4 May 2016, three days before the last parliament was dissolved, Senator Brandis issued a direction amending the Legal Services Directions. His amendment bars the Solicitor-General from providing legal opinions or advice to anyone in government without the Attorney's permission. This is nothing more than a power grab by Senator Brandis. It is a bid to control the flow of legal advice from the Solicitor-General to government departments and to other senior figures in the government—even to the Prime Minister or the Governor General. The Solicitor-General has said he is not aware of any time in Australia's history where the Solicitor-General has been prohibited or prevented from giving legal advice without the Attorney-General's approval.

The substance of the changes to the Legal Services Directions is bad enough—and the Senate will have an opportunity to take a view about that—but Senator Brandis has made matters worse by tabling a misleading explanatory statement about his amending direction. His statement said:

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.

This was a mislead of the Senate. And on 12 September 2016 in this place, in answer to a question in question time, there was a second mislead of the Senate when Senator Brandis was asked whether or not he stood by that previous assurance. He was then asked about when and how the Solicitor-General had been consulted. He replied:

During the course of a meeting in my office on 30 November 2015.

This was a third mislead of the Senate. How do we know this? Because the Solicitor-General, the very person who was supposed to have been consulted, has said he was not. In his submission to the Legal and Constitutional Affairs References Committee, the Solicitor-General says:

... there was no consultation with me at any time.

This could not be clearer. He is being very clear that the Attorney-General has misled the Senate, because the two answers cannot simultaneously stand. The Solicitor-General goes on to say:

Significantly, neither the making of a Direction nor the requirement for pre-approval from the Attorney-General before a Solicitor-General could provide advice was discussed at the meeting of 30 November 2015, at any subsequent meetings, or in any subsequent correspondence.

This is an open-and-shut case—a clear example of a minister misleading the Senate.

In fact, we saw today Senator Brandis's defence. His defence was: 'We had a general chat. We had a chat in November', and somehow, 'If we had a chat about the law or Lionel Murphy or perhaps even the weather and our families, that constitutes sufficient consultation for me, as a minister in this chamber, to put it into an explanatory memorandum and to answer questions in question time about it.' It is outrageous and it is being done for this reason: the Attorney wants to shut down the Solicitor-General as a source of independent advice. He sought to achieve this through underhanded conduct. He tried to sneak the direction through just before parliament was dissolved. He told parliament he had consulted. It was a clear attempt to deceive the parliament into thinking the Solicitor-General was on board with the changes. He tried unsuccessfully to stop the committee inquiring into this and, when he was caught out, he misled the parliament again.

This is not the first time we have seen this behaviour from the minister. He has previously misled the parliament. He has certainly failed to maintain the standards required of the Attorney-General. He should resign. (Time expired)

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

It is disappointing in this place when you see people of the apparent status of the shadow Attorney-General, Mr Dreyfus QC, and indeed the Leader of the Opposition in the Senate, herself a solicitor, lowering themselves to the level that we have just heard from Senator Wong on a matter which is of itself relatively straightforward. I intend to explain how it is. The Attorney-General was in consultation with the Solicitor-General, at the request of the Solicitor-General, on the practice of briefing the Solicitor-General on questions of law, and here is what happened. On 12 November, the Solicitor-General raised the issue with Attorney-General Brandis. It resulted in a meeting on 30 November 2015 in which the Attorney-General asked the Solicitor-General to come to his office to have a discussion about the concerns the Solicitor-General had raised. There is no question about that. There were two solicitors in the office at the time, both of whom have provided notes of that meeting. I have not heard that Mr Gleeson has refuted or challenged the contents of the notes that were provided. What followed was the fact that the Attorney-General, as a result of that meeting in which he inquired further the details of concern by the Solicitor-General, asked Mr Gleeson to respond to him in writing. Isn't that an amazing process? The Solicitor-General asked for a meeting, the Attorney-General agreed to it and the Attorney-General said, 'So that I'm clear, will you put your note in writing?' which he did by March this year.

We then move from March to 20 April, all of which has been confirmed by the wasteful questions by the opposition today, and it was then that the Attorney-General, Senator Brandis QC, sought from his department to prepare a draft which would be a response to the Solicitor-General. Let's examine that a little bit further, if we may. This happened on 20 April this year. I now want to advise the chamber and anyone who might be listening what followed as a result. The department advised the Attorney-General on 29 April, recommending that the Attorney-General put into place the rule change upon which he had consulted with Solicitor-General Gleeson. The department told the Attorney-General that, to comply with the law, he would need to be satisfied that any consultation he considered to be appropriate and reasonably practical had been undertaken. In recommending that the rule should go ahead, the Attorney-General's Department head said:

We consider that your consultation with the Solicitor-General would meet this obligation.

Why have we had the waste of time in this place today? Why has Mr Dreyfus QC made a fool of himself in the other place when this was the advice of the department to the Attorney-General:

We consider that your consultation with the Solicitor-General would meet this obligation.

It is the case, as reported on the weekend by the legal affairs editor of one of the major newspapers, that Mr Gleeson SC is annoyed because he was not consulted about the final wording of the rule change. I quote:

But, with the greatest of respect to the Solicitor-General, so what?

I ask with the same level of respect to my colleagues on the other side: so what?

The Solicitor-General is a legal adviser to the government and to the Attorney-General. He has no power of veto over the government. Section 17 of the legislation act makes it clear that 'the consultation must be to the satisfaction of the rule-maker'. As I recall, the rule-maker is the Attorney-General, Senator Brandis. It is not the Solicitor-General, Mr Gleeson. He has badly overextended.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I too would like to reflect on the discussion of this matter of this direction, which ultimately the Senate will have an opportunity to address again once we hear the report of the committee. I would like to take this chance to remind senators that what we are dealing with here is a matter of form. This is the form of the Attorney-General. This is important because, if you listen to his answer today and indeed the comments of Senator Back and the interjections from Senator Macdonald in question time, Senator Brandis would have us believe that this is just a small difference of interpretation over section 17. When he is challenged on this point he takes his next usual step, which is to blame the department. We have been down this path before. We went down this path with Man Monis and we have gone down it several other times.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Senator Collins, please resume your seat. Senator Brandis, a point of order?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am not blaming the department or anyone. I am merely quoting them.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

I think that is a debating point, thank you, Senator Brandis.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Senator Brandis does indeed know that is a debating point. He has been around this place long enough not to intrude in remarks in that way. The point that was highlighted—this is as I go back three years from now—in a feature on Senator Brandis I think quite captures what occurred here today, and I will quote that feature. It was in The Sydney Morning Herald in July 2013, which said:

Brandis is a master of the art of being economical with the truth.

And that is the truth. It might be described more nicely than what Senator Gallagher said in her earlier comments, but perhaps the President will accept that quote as an example of what has occurred here today.

On the issues of form, let us look at the details of what the Solicitor-General was concerned about, because it is not only the Attorney-General's representation that appropriate consultation occurred it is also what was in his letter. He was concerned about the accurate public representation of Solicitor-General advice in relation to three matters: the citizenship laws for dual citizenship—I find that very important, given the debates that the parliament dealt with in the last parliament; the issue of same sex marriage; and the issue of correspondence between Sir John Kerr and the Queen in 1975.

These are all very important issues, and they again highlight that if the Solicitor-General is concerned about how this Attorney-General represents his advice we here would not be surprised. This is why the Attorney-General suffered the censure motion back in March 2015. I remind the Senate that on that occasion the motion declared that the Attorney-General was unfit to hold office, based on his bullying statements and endless attacks on the President of the Australian Human Rights Commission, Gillian Triggs.

Reporting on this particular matter highlights the core issue here and the core issue with the conduct of the Attorney-General. A headline in The Australian Financial Review on 6 October said, 'Solicitor-General says A-G Brandis verballed him'—verballed him. And that is what has occurred time and time and time again. This is why he suffered that censure motion in relation to his conduct with respect to the Australian Human Rights Commission. This is why he feels he can just be rhetorical about comments about how we should deal with the conduct of bigots. This is how he manages his bookshelves in the way that he does, because he thinks he is above the rest of us. This is why the department conducted the issues around the Man Monis case so poorly: because their minister is not getting on and appropriately dealing with his role as Attorney-General.

That this situation is untenable is highlighted by the interjections coming from government senators during question time. It was not only, as was highlighted by Senator Wong and by Senator Macdonald's interjection that the Solicitor-General was a Labor appointment, it was also that he was precious. If you look at the comments from Senator Back, his concerns, 'So what? They don't matter.' This is why this situation between the first and the second law officers of the land is untenable, and why Senator Brandis should take into account censures that have occurred in the past in relation to his pattern of behaviour and resign. (Time expired)

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I too rise to take note of the Attorney-General's answer in relation to this matter. As a member of the Senate Standing Committees on Legal and Constitutional Affairs, when I first saw the terms of reference and who was appearing at the first inquiry I was somewhat surprised that the Attorney-General had not been called to provide any evidence. After reading the Attorney-General's evidence that he provided to the committee, I can see why the Labor chair did not initially ask the Attorney-General for his side of the argument.

I think once you strip away all of the highly personal and overblown rhetoric against the Attorney-General himself—when you actually have a look at the facts of the matter—I think it does show everything that I think is wrong with the standard of debate in this chamber today. Clearly, the questions and the acknowledgements by those opposite that consultation did occur show that this argument is nothing more than another political witch-hunt about the Attorney-General. But it is also, I would characterise, a penance debate on the definition of consultation, because even Senator Gallagher in her question acknowledged that consultation had occurred. If anybody goes through and reads the Attorney-General's submission and also the attachments to that submission, I believe that they can come to no other conclusion than that significant consultation did occur throughout the process of putting this Legal Service Direction and associated guidance note together.

Let us have a look at what consultation did actually occur. The Solicitor-General wrote formally to the Attorney-General on 12 November last year, saying that there were inadequate provisions for the referral to seek legal advice from the Solicitor-General from anybody but the Attorney-General, and that the issue needed to be addressed. The meeting that discussed that issue was held between the Solicitor-General and the Attorney-General on 30 November, and the Solicitor-General was invited by the Attorney-General to provide additional information and submission. The Solicitor-General did so; 14 weeks later he provided a draft copy of the Solicitor-General's written suggestions, which the Attorney-General took into account in finalising the new legal services direction and guidance.

The Attorney-General himself is the first law officer and he is the decision maker. The second legal adviser—it is my understanding the Solicitor-General is an adviser. The Attorney-General is required to take into account that advice but, as one of the last Labor speakers tried to conflate, the Solicitor-General does not have to be on board with every single word of any determination the Attorney-General makes. On 11 March we had the information provided by the Solicitor-General, and then on 23 March the Attorney-General and the Solicitor-General met again and the Solicitor-General in fact was thanked by the Attorney-General for his comments that had been provided. From the information provided by the Attorney-General it was clear that he had said that he had taken into consideration the Solicitor-General's advice. On 4 May the direction and guidance note was issued.

So we have several months of personal and written contact between the Attorney-General and the Solicitor-General on this matter—and on a matter that nobody, including those opposite, have said at any point in time in this debate, that I am aware of, that the legal service direction and guidance notice needed updating. In terms of the substance of what was decided, nobody on the other side has actually addressed the substance that this was something that was required, that the department themselves had actually confirmed did constitute the legal consideration and guidance that the Attorney-General took from this.

It really does come down to a quite disgraceful attempt by those opposite to conflate a whole range of issues on this matter. On my reading of the evidence it is very, very clear: the Attorney-General was required to consult on a matter raised by the Solicitor-General to him on multiple occasions, and that advice was taken into consideration in the preparation of the new legal service direction and the guidance. I am quite disappointed in the approach taken by those opposite— (Time expired)

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

As we all know in this chamber there is no greater fear, for want of a better word, than of being accused of misleading the Senate. It is a very serious accusation. But what we have here is that the Attorney-General, Senator Brandis, has had his own legal adviser accuse him of doing such a thing, of misleading the parliament.

The Sydney Morning Herald reported on 5 October that the Solicitor-General:

Mr Gleeson, the government's top legal adviser—

as we all know—

said in an explosive submission to the inquiry that he had not been consulted about a change requiring all ministers - including the prime minister - to obtain the written approval of Senator Brandis before seeking his advice.

This has never happened before.

Days before the federal election, we have been told and we know, the Attorney-General issued a directive instructing that no minister—including the Prime Minister—can seek advice from Mr Gleeson 'except with the consent of the Attorney-General'. Legal experts have expressed concern that this directive is a power grab that restricts the independence—and this is the key word—of the Solicitor-General. Further, legal experts have expressed concern the move could mean Mr Gleeson, an apolitical legal adviser on major issues, who appears in high profile cases on behalf of the government of the Commonwealth, is 'frozen out' of advising the government.

Let us just have a proper look at the role of the Solicitor-General. This is taken directly from the Attorney-General's website.

The Solicitor-General is the second law officer of the Commonwealth of Australia—

behind the Attorney General. The Sydney Morning Herald says:

Their role is to provide independent—

here it is again—

apolitical advice to government on matters of national significance and appear in high-profile court cases on behalf of the Commonwealth.

Back to the Attorney-General's website:

The function of the Solicitor-General under s 12 of the Law Officer's Act 1964 (Cth) is to act as counsel for the Commonwealth and its emanations, to furnish opinions on questions of law on referral by the Attorney-General and to perform such other functions ordinarily performed by counsel as the Attorney directs.

In the role as counsel, the Solicitor-General will ordinarily appear as one of the counsel representing the Commonwealth in all matters before international judicial and arbitral tribunals.

The Solicitor-General also appears in most matters in the High Court of Australia involving the Commonwealth and its emanations and in select matters of importance in the intermediate appellate courts of Australia. In 2013 and 2014, the Solicitor-General appeared in matters involving constitutional law, extradition, migration, native title, trade practices, taxation, corporations, customs, international arbitration and criminal law.

The Solicitor-General also provides a substantial number of opinions each year in Commonwealth matters.

The Solicitor-General is assisted by two counsel assisting and also works in close collaboration with senior officers of the Attorney-General's Department, Australian Government Solicitor, other key departments and agencies and with leading counsel from the private bar.

What I want to get to, and I think this is very important—it brings it into perspective—is an article in today's Canberra Times that I read with interest, which drew an interesting point of view on this matter. It said that despite the Attorney-General saying otherwise:

Mr Gleeson said he was not consulted and released a letter he had written to the attorney general which appeared to support his claim. Senator Brandis released the same letter but in much more highly redacted form.

Mr Gleeson's version indicated he had not been consulted on issues such as the revocation of Australian citizenship, marriage equality and the release of Sir John Kerr's correspondence with the Queen.

If this was because the government did not want to hear what he had to say, we all have a problem. A regime that is afraid to listen to independent, and authoritative, advice is only interested in ruling for itself, not for the broader community it is meant to represent.

To make this point a bit more finite, I would like to expand by saying that an Attorney-General who is afraid to listen to independent and authoritative advice, who restricts access to that advice and who seeks that advice from someone who is not the Solicitor-General is only interested in ruling for himself and not for the broader community.

I will leave this thought with the Senate. Someone is not telling the truth. It is either the top lawman, or his offsider. Someone has to come out and tell the truth— (Time expired)

Question agreed to.