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

I inform the Senate that the President has received the following letter, dated 10 October, from Senator Gallagher:

Pursuant to standing order 75, I give notice that today I propose to move "That, in the opinion of the Senate, the following is a matter of urgency:

The failure of the Attorney-General, Senator the Honourable George Brandis, QC, to uphold the standards expected of the First Law Officer of the Commonwealth, by his undermining of public confidence in legal administration within the Government.

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

I understand that informal arrangements have been made to allocate specific times to each of the speakers in today’s debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.

Murray Watt (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I should say at the outset of this debate that I am a member of the Legal and Constitutional Affairs Committee, which is the relevant committee to which this matter has been referred, and that we are still in the process of conducting hearings about this very serious matter involving the Attorney-General. Our committee process is ongoing and we are yet to hand down our report, and I do not want to prejudge what that report might say. But I think that it is important as a member of that committee to put on the record what we already know as a result of these hearings.

As I have been reading the material and talking to people about this matter, it has become clear to me that there is some confusion in the community about why this issue really matters. It is all very well for lawyers like myself and other lawyers who are involved in this committee to take for granted that matters around the conduct of the Attorney-General and the Solicitor-General are inherently important things, but I very well understand that for the average person in the street it may not seem, necessarily, to be particularly important. So the first thing I wanted to do is just take a little bit of the Senate's time to explain exactly why it is that these matters involving the Attorney-General really do matter—because, for all that we might be talking about legal directions, guidance notes, legislative instruments, and all sorts of legal jargon, what this really boils down to is what appears to be an unprecedented attack by the Attorney-General on the Solicitor-General of our country. Most of us in this chamber, and most Australians, would accept that matters like the separation of powers, the independence of judicial officials, and the independence of statutory officials like the Solicitor-General—we take for granted that those things are important, and that the independence of officials like the Solicitor-General is absolutely critical to our system of democracy, to making sure that the government of the day receives the best possible independent legal advice. But it appears, unfortunately, that there is one person in this chamber who does not understand and does not accept that the independence of the Solicitor-General is important. And what is even worse is that that person appears to be the first law officer of our country, the Attorney-General, Senator Brandis.

Those of us who have followed the career of Senator Brandis know that he has form in this regard. This is Senator Brandis, of course, who attempted to induce the resignation of the Human Rights Commissioner, Professor Gillian Triggs—again, completely ignoring the need for independence in that official. For those of us from Queensland this is eerily familiar, because we lived through the Newman government, which had a completely out-of-control Premier and Attorney-General who showed their flagrant disregard for the independence of the judiciary and the Solicitor-General on a number of occasions. So there just does seem to be something about Liberal attorneys-general from Queensland that they just do not get things like the separation of powers and the need for the independence of the Solicitor-General.

There are a number of witnesses who have already given evidence to this inquiry who have underlined exactly why this issue matters so much. Professor Appleby from the University of New South Wales said at the inquiry that the issue of the direction that the Attorney-General gave, in her 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.

But in addition to that, we have three current or former solicitors-general of our country who have completely contradicted the argument that Senator Brandis has relied upon to back his actions. The current Solicitor-General, Justin Gleeson, has done so in his submission to the Senate inquiry; a former Solicitor-General, Dr Gavan Griffith, has equally made the point that Senator Brandis's actions are not in line with relevant sections of the legislation; and even Sir Anthony Mason, a former Solicitor-General and former Chief Justice of the Australian High Court, has rejected the argument of Senator Brandis that he has some power to control which ministers—including the Prime Minister—and which departmental officials can obtain independent legal advice from the Solicitor-General. So we have a professor from the University of New South Wales—probably Australia's leading expert on the role of the Solicitor-General, and we have three current or former solicitors-general, one of whom went on to become Chief Justice of the High Court of Australia, who say that what Senator Brandis is attempting to do is not right. Yet Senator Brandis charges on. He is out on his own in this matter. He has no support from a legal point of view for what he is attempting to do.

However, not content with initiating a serious attack on the rule of law, Senator Brandis has gone further. It appears that he has misled the Senate in arguing what the process was that was undertaken in the lead-up to him issuing this direction. Senator Brandis has now said on a number of occasions, including in question time today, that he consulted the Solicitor-General before issuing a direction which controls the independence of the Solicitor-General. But anyone who has paid attention to this Senate inquiry will see that there is no evidence whatsoever to back up what Senator Brandis is saying. And the problem for the Attorney-General is that, as much as he might say that he has consulted the Solicitor-General—and if you look closely at what he says, he is very careful in his answers; he is very careful about saying that he talked to the Solicitor-General about a general process, and about briefing the Solicitor-General, but he is very hard to pin down about whether he consulted the Solicitor-General specifically on the direction that he issued. Yet he was happy to go and tell the Senate that he did so—in the explanatory memorandum for the direction. But when you look at the evidence, there is not one other person who attended the meeting that the Attorney-General had with the Solicitor-General on 30 November last year who backs Senator Brandis up. Senator Brandis is relying on a meeting that he had on 30 November last year with the Solicitor-General as the evidence for him having consulted the Solicitor-General about this direction—this direction which controls, in an unprecedented manner, the independence of the Solicitor-General. After that meeting the Solicitor-General was smart enough to circulate a record of that meeting, outlining the issues that were discussed. There is no mention, whatsoever, in those meeting notes that the Solicitor-General took, that the direction, or any attempt to control his advice, was discussed in that meeting—and that is very easy to explain: because it was not discussed.

The Solicitor-General circulated that meeting record to all of the other attendees at that meeting, which included two other independent people. So, whether you want to say that the Attorney-General and the Solicitor-General are just involved in a fight here—and who do you believe? It is one person's word against another—there are other people, other independent witnesses, who were present at that meeting who not only do not back up the Attorney-General's view of events; they actually back up what the Solicitor-General is saying when he says that he was not consulted about this matter.

The former Australian Government Solicitor, Mr Ian Govey—now retired—was asked for feedback about these meeting notes, and he responded by saying that he was okay with those meeting notes; they were an accurate reflection, apart from one minor unrelated point. He did not make any point about a direction or any control on the Solicitor-General having been discussed at this meeting. That is one independent person who attended this meeting who does not back up Senator Brandis and does not say that this direction was discussed at the meeting.

Not only that, though, Mr Moraitis, the secretary of Senator Brandis's own department, also attended the meeting on 30 November. Mr Moraitis was sent the Solicitor-General's record of what occurred at that meeting. He was asked for feedback: 'Was anything left out? Was anything else discussed?' He responded by saying that he had no issues with those notes. The secretary of Senator Brandis's own department, who attended this meeting where this consultation allegedly occurred, was invited to respond about what was discussed at that meeting, and he says that he has no issue with the Solicitor-General's record of events.

We also obtained evidence from Senator Brandis's own department, which also demonstrates that they were instructed by the Attorney-General to issue this direction well after the meeting occurred in November. It is very clear—we are waiting for more evidence—that Senator Brandis has misled the Senate, and he needs to seriously consider his position. (Time expired)

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

I too rise to speak with respect to the urgency motion put by Senator Gallagher regarding the 'alleged' failure of the Attorney-General, Senator the Hon. George Brandis, to uphold the standards expected of the first law officer of the Commonwealth.

As Senator Watt just noted, the Legal and Constitutional Affairs References Committee is still conducting an inquiry into this matter. This issue not only dominated question time; it is now subject to this urgency motion. As a member of the committee, as well, I think it is entirely inappropriate that we are here being forced to debate an issue that is still before the committee and before the Attorney-General has even had the opportunity, this Friday, to present his testimony to the committee.

Senator Watt also said that it was not about the Solicitor-General; it was about him being attacked by the Attorney-General. There was a lot of commentary about the Attorney-General, but there were few, if any, facts of the matter that were actually addressed in his speech just then. He also talked about this being a serious attack on the rule of law. Well, nothing I have seen as a committee member and nothing that I have seen so far in this chamber, in terms of the debate today, give any evidence of that. The Attorney-General is the first law officer of Australia, and, accordingly, he is the decision-maker. The second legal officer of Australia is the Solicitor-General, and his role is clearly advisory.

So, what is the context to this? On 4 May this year the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 and the associated changes to the guidance notice were signed off by the Attorney-General. Not only was I surprised to find that we are debating this here today, but I was also most surprised to see that the chair of the Legal and Constitutional Affairs References Committee had not even invited the Attorney-General to put in a submission. After the Attorney-General had, on his own initiative, I understand, put a submission to the committee, it is no wonder to me at all that the Labor Party did not ask the Attorney-General, the subject of this, to put a submission in in the first place.

Even just listening to the debate and the discussions earlier, it is very clear that consultation occurred. What is happening here is that the Labor Party is running what I think can only be described as a pedant's argument on the definition of consultation, because even they have to admit consultation occurred. The only real question is whether it satisfied the test, because ultimately the Attorney-General, as the decision-maker, takes advice from the Solicitor-General, and then he makes his own determination, as it should be.

So, far from any evidence I have seen so far, this is not an attack at all on the Solicitor-General. But, as Senator Watt and previous Labor speakers in motions to take note of answers suggested, it is more about not taking the full Solicitor-General's advice word for word. That is not unusual. It is certainly appropriate for him to be consulted on the advice, for the advice to be considered and then for the Attorney-General to take the final decision.

Let's have a look at the definition, if the pedants on the other side really want to have a discussion about consultation and what it actually means. The Macquarie Dictionary provides the meaning of consultation as the 'act of consulting' or 'a meeting for deliberation'. Clearly, the evidence shows that occurred between both parties. The Oxford Dictionary defines consultation as 'seeking information or advice from someone, or to have discussions with someone'.

Again, the advice, which even those opposite have conceded today, clearly shows there was extensive and longstanding discussions and consultations between both parties. Now those opposite and the Solicitor-General may not like the final decision the Attorney-General made, but that is really, as far as I can see, not relevant, because it was done in accordance with procedures.

The matters in relation to the requirement to amend the direction and guidance note were raised formally. I have heard almost nothing from those opposite about the substantive issue at hand and what is in the guidance directive. The Solicitor-General himself, in a letter dated 12 November last year, requested to meet the Attorney-General to discuss issues in the current direction and guidance note, specifically in relation to the requirement that any request for advice to the Solicitor-General must go through the Attorney-General. Other ministers and their departments had been going directly through to the Solicitor-General. So he asked the Attorney-General to discuss it with him and the Attorney-General did. That request was on 12 November last year. The Attorney-General met with the Solicitor-General on 30 November to discuss the very issues raised by the Solicitor-General. Already this is sounding to me like consultation. On 11 March, 14 weeks after that meeting, at the request of the Attorney-General the Solicitor-General provided his feedback on the issues to hand. These matters were considered by the Attorney-General.

In the Attorney-General's submission he noted that he considered that 'this consultation was appropriate and sufficient for the purposes of section 17 of the Legislation Act.' So, not only can it be demonstrated that they had two-way consultation over an extended period of time on this issue but also the Attorney-General said that he believed that the consultation was appropriate to meet his requirements under section 17 of the Legislation Act. Notwithstanding the Attorney-General's own interpretation—that he acted in accordance with section 17—the Attorney-General's Department also confirmed that the Attorney-General had met that requirement to consult under section 17. In fact, the department made the following statement in their own submission to the inquiry. I will read it word for word, because it gives the complete lie to everything those opposite have said so far:

Section 17 provides that before a rule-maker makes a legislative instrument, the rule-maker must be satisfied that any consultation that is considered to be appropriate and is reasonably practicable to undertake, has been undertaken.

That is what the Attorney-General said that he believed had occurred. The department goes on:

Due to the nature of the power exercised by you [the Attorney-General] under s 55ZF of the Judiciary Act 1903 and the subject matter of the instrument, [the department] considers that your [the Attorney-General's] consultation with the Solicitor General would meet this obligation.

So, not only is there evidence of consultation on matters raised by the Solicitor-General and submissions backwards and forwards and discussions backwards and forwards; you also have the Attorney-General believing that he has consulted in accordance with his legal requirements and the Attorney-General's Department also confirming that that consultation occurred.

It was only after this confirmation from the Attorney-General's Department that the Attorney-General issued the direction, explanatory statement and guidance note which, according to his evidence and the evidence from the department, was almost identical—or very, very similar—to the suggestions received by the Attorney-General from the Solicitor-General. Again, coming back to the substance of this issue, nobody, but nobody, in this chamber—or, I believe, in the inquiry—has said that the direction is necessary. It resulted from the Solicitor-General himself, who said, 'Attorney-General, we need to fix this. This is what I believe needs to be done.' That is what the Attorney-General did. That may not have been word for word what the Solicitor-General advised, but, as the Attorney-General, it is his decision—if he wants to make some amendments to the advice he got, that is his right as the first law officer and decision maker of this nation.

Some of the suggestions from those over in the east, made in rather florid and colourful language, are that the Attorney-General is deliberately subverting the rule of law in this matter and is trying to undercut the Solicitor-General. They provided not a shred of evidence to support that case. Let us have a look at some of the facts. Neither the direction nor the guidance note changes the Law Officers Act 1964, which is the law setting out the Solicitor-General's role and functions. It changes nothing in relation to the Solicitor-General's role. Section 12 of the act sets out the statutory functions of the Solicitor-General. Paragraph 12(b) provides that one of the Solicitor-General's three functions is 'to furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General.' Except where the Solicitor-General is acting as counsel under paragraph 12(a) of the act, which is irrelevant to the legal services direction, the Law Officers Act explicitly provides only one circumstance in which the Solicitor-General may provide an opinion to the government on a question of law, and that is where the Attorney-General refers that question to him. That is exactly the issue the Solicitor-General asked the Attorney-General to look at, because ministers, or departments on behalf of ministers, were going directly to the Solicitor-General, which is specifically against his charter in the Law Officers Act 1964.

The office of Solicitor-General was created in 1916 for the very purpose of assisting the Attorney-General in the performance of his duties, including his role as the principal legal adviser to government. However, over the years a practice developed across government whereby briefs were being sent directly to the Solicitor-General in contravention, as I have said, of the Law Officers Act. This new direction establishes a whole-of-government procedure that gives effect to paragraph 12(b) of the Law Officers Act. Nobody in the committee, and certainly nobody opposite, has addressed the substance of the issue: this direction was at the request of the Solicitor-General. He wanted this issue raised because he was having issues and requests for legal opinion referred to him by other ministers, which is in contravention of his requirements under the Law Officers Act. That is very, very clear.

These arrangements that have been introduced do not limit the independence of the Solicitor-General in any way. They do nothing to change the effect of the Law Officers Act at all. Not one speaker on the other side—apart from attacking the Attorney-General and using this as an opportunity to bring up other issues where they have a bit of bile on their liver about the Attorney General—has provided one shred of evidence about how these arrangements limit the independence of the Solicitor-General. They do absolutely nothing to change the effect of the Law Officers Act. They simply establish a procedure that allows government bodies and agencies to refer questions through the Attorney-General. (Time expired)

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

I had a very measured start to my contribution planned, but it has been sidetracked somewhat by the latter part of the contribution from the member who has just resumed her seat, Senator Reynolds, because she has said words to the effect that this instrument, the Legal Services Amendment (Solicitor-General Opinions) Direction 2016, has come about as a result of a request that the Solicitor-General made. That is an outrageous characterisation of the Solicitor-General's actions with regard to this matter, which began on 12 November when the Solicitor-General wrote to the Attorney-General to raise concerns regarding what he, the Solicitor-General, believed to be insufficient procedures in place around how and on what basis the Solicitor-General was briefed. That letter makes it very clear that the Solicitor-General had concerns that:

… insufficient procedures are in place to ensure, first, appropriate coordination within Commonwealth agencies, and between agencies and my office, in matters of high legal importance—

and, secondly, concerns about the accurate public representation of the Solicitor-General's advice. This second matter has not been discussed at length during a lot of the conversation on this matter but if I have time I will go to it, because I do believe that it is strongly arguable that the Prime Minister has deliberately misrepresented, publicly, advice that the government received from the Solicitor-General. Of course, that is a very serious accusation and one that demands a response from the Prime Minister.

In the Solicitor-General's letter of 12 November he goes on to discuss Guidance Note 11, which in effect sets out the manner in which the Solicitor-General is to be briefed. That is all reasonably unremarkable in terms of the Solicitor-General raising his concerns and discussing the guidance note, but the Solicitor-General in that letter then gives examples that show clearly that the government, through the Attorney-General, is shopping around for legal advice. I am going to come back to that later, because it is a really serious matter, but first I want to go to the matter of consultation.

I do agree with something that the previous speaker said, which is that there is little doubt, there is no contention, that a consultation did occur between the Attorney-General and the Solicitor-General. The question that needs to exercise the mind of every senator and the mind of every member of the Legal and Constitutional Affairs References Committee—and I am one of the members of that committee—is: what was the subject of the consultation that occurred? There is little or no doubt that consultation occurred around a guidance note. Where there is an issue of concern for the Attorney-General, and where arguably he has a problem, is on the question of whether there was consultation on the Legal Services Amendment (Solicitor-General Opinions) Direction 2016, a statutory instrument. The Attorney, in the explanatory memorandum that went with that statutory instrument, 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.

My reading of those words leads me to form, I think quite reasonably, the view that the Attorney is suggesting in his explanatory memorandum that he has consulted the Solicitor-General on the direction—that is, on the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. One issue that the Attorney has is that the general obligation to consult, which is contained in section 17 of the Legislation Act, specifically references legislative instruments. The guidance note is not a legislative instrument. What is a legislative instrument is the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. Section 17 of the Legislation Act says:

Rule-makers should consult before making legislative instruments

(1) Before a legislative instrument is made, the rule-maker must be satisfied that there has been undertaken any consultation that is:

(a) considered by the rule-maker to be appropriate; and

(b) reasonably practicable to undertake.

Again, on face value that relates to consultation around a legislative instrument—in other words, the direction. It does not relate to consultation around the guidance note. In any event, I believe it is known publicly that both the Attorney and the Solicitor-General will be appearing before the committee on Friday of this week, and that issue will no doubt be discussed at some length with both of them.

I want to go now to the issue of shopping around for legal advice. As I have said publicly, seeking legal advice is not like using a dating app. The Attorney-General has a solicitor-general in place to assist him in one of his primary functions, which is providing legal advice to government, to cabinet, in particular on whether or not a piece of legislation is likely to be in accordance with the Constitution. I will be clear here: there are circumstances where it would be appropriate for the Attorney-General not to seek advice from the Solicitor-General—for example, when the Solicitor-General has a conflict or when there is a legitimate perception that the Solicitor-General may have a conflict. But what we know, because of this letter that the Solicitor-General sent the Attorney-General, is that on areas of extreme legal significance and importance, such as the legislation that proposes stripping citizenship from some Australian citizens, and on issues that are so important to the fabric of our community, such as marriage equality, the Attorney-General has been shopping around for legal advice, presumably because he knew that he would not like the advice he got from the Solicitor-General.

So what he did was not go to the Solicitor-General and take advice from the Solicitor-General and then if he did not agree with it go out to market and get advice from somewhere else. That would be problematic, but not as problematic as what the Attorney-General did. What the Attorney-General has done is to ignore the Solicitor-General, presumably because he thought he would not like the advice, and go out to the private bar and to the Australian Government Solicitor for legal advice, particularly around citizenship and marriage equality—two extremely important pieces of legislation that the Attorney-General effectively sidelined the Solicitor-General on. How do we know that? Because the Solicitor-General wrote to the Attorney-General complaining about what had happened, and that letter has been sent by the Solicitor-General to the Legal and Constitutional Affairs Committee.

It is quite outrageous that something as serious and as drastic as removing citizenship from an Australian citizen was not, in the final form it was put in before this parliament, based on legal advice from the Solicitor-General. When the Attorney-General goes to the Australian Government Solicitor—let's be clear here—he is effectively seeking advice from his department, because the AGS is part of the Attorney-General's Department. Why would this parliament bother to create the statutorily independent office of the Solicitor-General if it intended that the Attorney-General should just work around it?

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

The Solicitor-General shouldn't get involved in politics, should he?

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

It is not tender, it is seeking incredibly important legal advice, Senator Macdonald. I am astounded that you, as a former minister, would appear to be supporting such a sidelining of the second-most important law officer in this country. (Time expired)

Jenny McAllister (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise on this matter of public importance because I have grave concerns, as have other speakers, about the situation that we find ourselves in arising from the actions of the Attorney-General. My concern is that by his actions he is undermining public confidence in legal administration and in the relationships between some of the most senior law officers in our system.

I want to talk a little as I begin about what is at stake, because there has been a suggestion in some of the remarks today from the Attorney-General that these matters are trifling, that they are insignificant and that they go to mere formalities rather than questions of substance. I want to put it to you, Mr Acting Deputy President, that that is not the evidence that is before us. There are quite significant disagreements and significant questions of a legal principle at stake in the matters that are before the Attorney-General, and in his attempt to gloss over those and to cast them simply as formalities he does no service to public debate in this country.

The first question I wish to address is this idea propagated by the Attorney-General that in issuing this directive he is simply codifying long-standing arrangements and indeed requirements of the legislation. In fact, the requirements of the legislation are not straightforward and there are many who will contend that they are not met by the directive that has been issued by the Attorney-General. In fact, the Solicitor-General is amongst those who dispute that. In his submission to the inquiry he makes the point that section 12 of the Law Officers Act sets out the roles of the Solicitor General:

They are that the Solicitor-General "act as counsel" for a range of persons and bodies, including the Crown in the right of the Commonwealth, the Commonwealth, a Minister and an officer of the Commonwealth—

That is in section 12(a). Also, that the Solicitor-General:

… furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General;

That is in section 12(b).

What is important is that in many of the opinions that have been issued over the years about the interaction between these two provisions, there is a clear sense that section 12(b) does not limit section 12(a). That is to say that whilst section 12(b) provides that the Attorney-General may refer matters to the Solicitor-General, it does not limit the Solicitor-General's obligations under section 12(a) to act as the counsel for a range of entities within the framework of the Commonwealth. It is not the case that what is under discussion is a mere codifying of the legislation, and it is not the case that this is a settled question. Indeed, Sir Anthony Mason has written:

It is not to be implied from this qualification—

section 12(b)—

that the Solicitor-General cannot furnish an opinion to the Commonwealth or its emanations without a request from the Attorney-General. As Solicitor-General I was instructed by the Crown Solicitor and the Attorney-General's Department to advise departments and other Commonwealth agencies without any express approval by the Attorney-General being communicated to me.

There are a range of views about this question and it ought not to be taken as given that the direction that has been issued is in accordance with the legislation.

Similarly, there have been assertions in the discussions in this chamber today that the guidance note and the direction are essentially the same thing. As the Solicitor-General's evidence points out, they are not the same thing. The reason that they are not is because they have a very different standing and a very different status in the way that they function. The guidance note is essentially a policy document prepared by the Office of Legal Services Coordination. It is flexible. It can be amended at any time by the Office of Legal Services Coordination, and that is historically done in close consultation with the Solicitor-General of the day. It need not be strictly followed if circumstances require, and indeed there are no penalties available for a failure to follow the procedures set out in the guidance note. By contrast, a legal direction is a very different beast. It is a legislative instrument, it is made under the Judiciary Act 1903 and it forms part of the Legal Services Directions 2005. The direction is binding. It is binding on those who perform Commonwealth legal work, and the Attorney-General may impose sanctions for noncompliance. It is one thing to set out a set of preferred practices in a guidance note. It is quite another to codify them in a legal instrument that emanates under a piece of legislation against which sanctions are attached.

I say this: I do not come to this chamber with a background in the law, and I am perfectly willing to concede that there are minds much finer than mine that could address themselves to these questions. There are plainly differences about the interpretation of the legal services act, and they are manifest in the way that these issues have been presented in the public debate. But I will say this: on a question where there is controversy, where there is so significant a difference between the different people involved in the conversation, I would have thought that that was an occasion when the Attorney-General might have engaged in meaningful consultation. He might have meaningfully engaged, for example, the Solicitor-General about the consequences of issuing a direction in the way that he did. He might have gone to others in the profession and sought their counsel about what the consequences would be of codifying the practices around obtaining legal advice from the Solicitor-General in this way. But what is very clear is that that meaningful, substantial consultation has not taken place.

I note that in all his remarks the Attorney-General has sought to narrow down the idea of consultation to some sort of formal procedure, a tick and flick—'Tick the box, and then we can say, "Oh, yes, we did the consultation within the narrow confines of the act."' Well, consultation, when we are talking about good government and good administration, is not simply a tick and flick. It is a process of obtaining meaningful advice to allow you to make good law, to make good legislation and to act in the best interests of the Commonwealth in pursuing your duties—in this case, as the Attorney-General.

It is most disappointing to see that the consultation around this question has been desultory, because, despite the Attorney's protestations, we have the Solicitor-General saying quite plainly, in no uncertain terms, that he has not been consulted. The Attorney-General has maintained publicly that he did consult the Solicitor-General regarding the making of the directive, and that statement has been vehemently denied by the Solicitor-General. When we look at what the Attorney relies on, he relies on the fact that at some point back in November last year it appears a meeting took place to discuss the arrangements by which legal questions would be referred to the Solicitor-General. The way the Attorney has approached this is very curious to me, because he really does not maintain a consistent story, I believe, about what happened. He, of course, maintains that there was consultation at the meeting on 30 November, but in the parliament today, when asked about it, he said, 'I did not approach the meeting of 30 November 2015 with any preformed view as to how the issue which had been raised with me by the Solicitor-General should be dealt with. The purpose of that meeting'—and these are his words—'was to listen to what the Solicitor-General had to say to me and have a discussion with him so that we could proceed to fix the problem he had identified.' I do not understand how that can possibly be consistent with the other story, which is that the purpose of that meeting was to consult on the issuing of a legal services directive. These are two entirely different ideas.

We have also heard evidence from a range of departmental figures that what was discussed at that meeting in no way went to an issuing of a binding directive which would significantly constrain the activities of the Solicitor-General. I am most concerned about where we find ourselves. I think the Attorney-General has done himself no good service and has done no service to our Commonwealth.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Before I start on this debate, can I just repeat a warning I gave to the Legal and Constitutional Affairs References Committee before it embarked upon this political witch-hunt, and that is that what the Labor Party and the Greens political party are doing is politicising the role of the Solicitor-General vis-a-vis his immediate superior, the Attorney-General. The Attorney-General is responsible and answerable to this parliament and ultimately to the people of Australia. The Solicitor-General is responsible to no-one except his legal training, his commitment to the law and the Attorney-General. By raising this matter here in this political witch-hunt inquiry, what the Labor Party and the Greens have successfully done is diminish the position of the Solicitor-General generally and this Solicitor-General in particular.

I might say to these so-called independent statutory officers like the President of the Human Rights Commission and the Solicitor-General: if you want to be captured by the Labor Party's political approach, if you want to become a player in the political system, then do the right thing by your position, resign as President of the Human Rights Commission or Solicitor-General, take a real pay cut from the enormous salaries both get, stand for parliament, see if you can get people to support you and elect you to parliament, and then come into parliament and play the games. Deliberately or innocently, both the Human Rights Commissioner and the Solicitor-General have allowed themselves to be involved in the political games, and by doing that they have diminished the positions they hold and themselves.

Senator McKim seemed to think it was awful for Senator Brandis to get legal advice from elsewhere. Well, can I tell you, Senator McKim, that the fact that he holds the title of Solicitor-General does not mean that his legal opinions are any better than those of any number of very experienced silks who are available to give advice to the government and anyone else and who make their way in the courts.

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

Mr Acting Deputy President, briefly on a point of order: I suspect that Senator Macdonald has just misled the chamber. In my contribution, I was explicit that there were circumstances where it would be appropriate not to seek the advice of the Solicitor-General—

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That is not a point of order; that is debating the subject.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

The Solicitor-General does not have a monopoly on good advice. In fact, I know from my very limited legal training that some of the advice given by the Solicitor-General has not been all that hot, and I can understand why the Attorney has gone and sought other advice. Remember that the Attorney-General is a qualified barrister and a Queen's Counsel himself. Like him or hate him—and we can all say which side we fall on there—he has a very astute and sharp legal mind. In fact, I would back the Attorney's legal view on matters ahead of most other QCs and SCs.

Regrettably, this inquiry, and the politicisation of the role of Solicitor-General, stems from the Labor Party's insatiable—almost manic—desire to try to get rid of Senator Brandis. And I can understand why they want to get rid of Senator Brandis. In Senator Brandis the government has a Leader of the Government in the Senate who is up to the challenge, whose knowledge of the law of the Senate and politics is such that the Labor Party and the Greens can never lay a glove on him. As much as they keep trying to attack him, they never succeed—and they never will because Senator Brandis, love him or hate him, is a very able and competent person. The Labor Party cannot stand that, and they will go to any length—even to the length of diminishing the role of Solicitor-General—just to try and get at the Attorney-General.

I am sad that it has come to that. If you do not like the legal direction note, do the right thing and move a motion of disallowance—which is going to happen this afternoon. If you do not like the motion, bring on the disallowance motion and argue it—agree with it or disagree with it—and deal with it. That is the way you deal with it, and I understand that is what the Labor Party are going to do later on. But why politicise the role of the Solicitor-General by bringing on this debate today, wasting all of question time on the same thing and setting up this dodgy political Senate inquiry simply to politicise these matters? If you are interested in the substantive article, bring on the motion of disallowance and argue the debate on the facts, not on politicising the role of the Solicitor-General.

My colleague Senator Reynolds went through the facts very well, and I do not want to repeat a lot of them. But, of course, we have never heard the Labor Party and the Greens talk about the note taking of that meeting on 30 November 2015. The notes of what was discussed at that meeting say: 'Four documents in issue: (1) The Law Officers Act, (2) LSD, (3) guidance note, (4) MPS.' I asked a witness what LSD stood for and, of course, it was Legal Service Directions. So it is there in the note taker's notes of that meeting, which have been tendered to the committee. But, strangely, no-one else has mentioned that in this debate so far.

Further, while everyone seems to concede that the guidance note was discussed, they seem to think that the Legal Service Directions note was not. Senator Reynolds rightly pointed out this whole process started because the Solicitor-General was concerned at the number of briefs he was getting, from all sorts of departments and officers, that were impinging upon his time and stopping him from doing the quality high-level work that he was supposed to be doing. So he asked for this meeting with the Attorney-General, who listened to him and heard what he had to say. And then it was up to the Attorney-General to devise the way to address that. He asked the Solicitor-General to put his thoughts in writing, which he did. Having done that, it is left to the Attorney-General, who is responsible to parliament and the people, to then make a decision. Having heard all the submissions from his secretary, from the department, from the Solicitor-General and from previous people involved in this particular area, he has mixed that all up and then come to a decision. And it is his decision to make.

But what I get from reading the Solicitor-General's submission to the committee is that he perhaps feels he has a veto power, that he is the one who makes the rules. Well, I am sorry, Solicitor-General, you do not make the rules; the Attorney-General makes the rules. Under the act, you are able to give advice on those—which you initiated and were asked for, which you gave and put in writing. Just because the Attorney-General did not follow your advice to the letter does not mean to say that the Attorney-General is wrong. It is the Attorney-General, Senator Brandis, who has to make the decisions, not the Solicitor-General—and, from reading the Solicitor General's submission, it seems to me that he has confused his role.

I also want to reiterate that this is a purely administrative matter that has been blown out of all proportions by the Labor Party and the Greens simply because of their insatiable and manic desire to attack Senator Brandis using any means at their disposal. Regrettably, it has brought this whole process and the role of the Solicitor-General into the political field.

What is consultation? This debate is about the Attorney-General allegedly misleading parliament because he said he consulted with the Solicitor-General, which he clearly did, and the Labor Party wanting to use this to try to attack the Attorney-General. Consultation was clearly and obviously had. Not only was it had at the request of the Solicitor-General but the note taker has shown what the matters to be discussed were. There was a general discussion on how the Solicitor-General should be briefed. He was concerned about his workload. The Attorney-General listened to him and asked him to put his thoughts in writing. The Attorney-General, having consulted, then made a decision, which is his decision to make, not the Solicitor-General's. I might say, not that Senator Brandis needs the comfort of departmental confirmation of what he has done, but, as all ministers do, when these matters come up the department prepare a brief, they send forward the brief with all the alternatives, the options, what it is all about and some recommendations. The recommendation in this instance was that the Attorney sign the direction to deal with the issue, which was consulted on—that is, the workload of the Solicitor-General. Not only did the department recommend that this direction should go ahead but they also clearly said in their advice—and that was given to the committee; we do not hear too much from the other side about that—'Yes, the consultation you have had satisfies your obligation under the act.'

Again, I am disappointed that this is not being dealt with in the disallowance motion later today. Whether you agree with it or not—and I have an open mind on it, I tell you—that is where it should be dealt with. This unfortunate debate really politicises the position of the Solicitor-General. I have to say, in my mind at least, it makes his position subject to question.

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on today's urgency motion. If one listened to those opposite in relation to this matter, one would think that this matter—the issue of the rule of law in our country—is a storm in a teacup and that we are pedants on this side of the chamber, in the words of Senator Reynolds, for raising this matter and expressing our concerns as to the Attorney-General's handling of this matter. In fact, we go so far as to question the integrity of the Attorney-General in relation to this matter.

This matter is the subject of a very good article on the ABC, put together by Associate Professor Gabrielle Appleby of the University of New South Wales Law School. The headline of this particular article is 'Standoff between Brandis and solicitor-general threatens the rule of law'. When we are talking about a matter which I think is generally seen as being threatening to the rule of law, we on this side of the chamber will get up and defend the institutions. It is quite disappointing that, when Australians think about the Liberal Party, historically it has held itself out to be a party that considers itself to be a custodian of institutions and wanting to preserve the institutions of our country which underpin the rule of law and so many other things that are so important to us. This is a party which lost its way many years ago. I talk about the 1975 constitutional crisis, because it does come up, strangely enough, in the course of this particular matter. One only has to go back to the 1975 constitutional crisis to see that respect for the institutions, respect for the conventions that are so important for our democracy, are flagrantly disregarded by those on the other side.

The job of the Solicitor-General is to provide legal advice to the government—to government ministers and to heads of departments. It is quite clear that the Attorney-General has attempted to hobble the ability of the Solicitor-General to do his job. I was very interested in the submission of the Solicitor-General to the inquiry. Regarding the direction that was issued by the Attorney-General, he said:

... it imposes a prohibition or restraint that the Solicitor-General may not be asked to furnish, and may not furnish, an opinion on a question of law unless the Attorney-General has referred, or consented to a referral of, the question of law to the Solicitor-General.

I continue to quote the Solicitor-General's submission. He said:

It then sets out a process for seeking the Attorney-General's consent.

I make this very important point:

It does not set out the matters that the Guidance Note (before its revision) sought to address, such as when the Solicitor-General should be briefed to appear or advise, how the Solicitor-General should be briefed, how the Solicitor-General should be contacted and so on.

We know from previous contributions this afternoon that the matter arose to some extent by virtue of a letter from the Solicitor-General on 12 November. It is quite clear that the Solicitor-General had expressed certain concerns about the process for seeking and acting on advice to him on significant matters. He pointed out three specific areas which were recent examples where there was a need for urgency of improved coordination, and those matters were citizenship, marriage equality and, as I alluded to earlier, correspondence between Sir John Kerr and the Queen in 1975.

I digress for a second. I found that interesting, and I think this goes to the point. The Solicitor-General was trying to identify the fact that one part of the government provided advice on a matter and another part, the Solicitor-General, had been asked to give advice on this matter back in 2013. It is extremely important that, in matters of such sensitivity, you have all parts of government understanding what they are doing and that it is properly coordinated. This was a very legitimate matter that was raised by the Solicitor-General, and what happened? The Attorney-General used that as an opportunity to seek a power grab, if you like—to hobble the ability, as I said, of the Solicitor-General to do his job. This is a very serious matter. But apparently Senator Brandis would like to see all the advice the Solicitor-General gives to other ministers. One would understand that is fair enough. You would expect that to happen in a healthy relationship between the two top law officers, but this government, and indeed this Attorney-General, do things differently. We now have the first and second law officers of the land involved in a very public confrontation and conflict, and this is not what should be happening. This is a matter which will be further looked at. We call on the government to uphold the— (Time expired)

Question agreed to.