Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) 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.

I am sure the government senators are really surprised at that statement. I would like to thank the Attorney for the answers he did give us today, because I learnt much from those answers. I was very pleased to find out that there is actually a book that talks about the role of the Solicitor-General, and that will be on my reading list automatically, I think. There was also a reference to collected speeches from Mark Dreyfus, which are already on my reading list in terms of the process. I do take a lot of interest in the various speeches made by Mark Dreyfus and, indeed, prefaces to books—

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

Madam Deputy President, a point of order. I have the greatest respect for Senator Moore's respect for the Senate, but she does appear to be mocking Mr Dreyfus now, and I wonder whether that constitutes a reflection.

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

It does not.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

I reject that point of order, and I will continue with my deep respect for at least one person involved in this debate, which is the shadow Attorney-General. I was also particularly interested in having some information about the independence of barristers. I had not actually had that information before, so I thank the Attorney for that.

I think most of the issue relates to the statement constantly repeated by the Attorney that there can be differences of opinion amongst people with legal qualifications. No-one doubts that. In fact, you only have to be in this place for a short time to see that there will be, can be and often are differences of opinion between people with legal qualifications, but that was not the point of the questions. In terms of the process, the opposition was exploring issues around the legislation, which has been brought before us, that looks at the role of the Solicitor-General, and also the opinions that have been brought forward by a person who previously held that position. Whilst we know that there will be further debate on this process, particularly tomorrow in the legal and constitutional committee inquiry into this legislation, I think it is important to note that the issues we were raising are not so much about a difference of opinion but actually about the process leading up to the introduction of this legislation.

We do not doubt that the Attorney, the leader of the government in this place, has every right to have differences of opinion on information that comes forward. What we do say and what we question—and there was a specific question about the relationship between the Attorney and the Solicitor-General—is that there must be some understanding of the deep respect for that role. This is the point that has been brought forward. In terms of the Attorney's relationship with the Solicitor-General, there must be not only a private understanding of a strong legal respect but also a public understanding that these two senior legal officers in our system have respect for each other and the views they put forward. Never, never was there any intent to say that they had to have the same opinion.

Certainly through the answers to this place over the previous few days a key issue around consultation has arisen. When the Attorney was bringing forward the legislation into the Senate on the way that opinions by the Solicitor-General may be taken by members of the government and the very important aspect of that role, the issue was whether the current Solicitor-General had been given the respect of appropriate consultation on that decision. Answers were made and there will be a process taking place tomorrow. For me, one of the core aspects has been the ongoing public discussion around how the Attorney and the Solicitor-General interact. That was the core issue in terms of what the opposition has been asking over the last few days. And today's answers by the Attorney actually bring me no closer to any understanding of what this relationship is. It is not about having different opinions; it is about having an effective working relationship based on respect. So, in terms of the questions we asked today, we brought forward the opinion of a previous Solicitor-General on what the impact of this legislation would be. I know that the Attorney—not to a question on this particular issue—did refer to some language as being 'flamboyant'. I think the statements that were made by the previous Solicitor-General did tend to be flamboyant as well, but he clearly made the point that should the changes be made the role, the focus, the integrity and the status of the Solicitor-General could be impeded. In fact, in his opinion it would be impeded. It is important in this place that we understand what the exact relationship is— (Time expired)

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

We saw it all today; we saw it all yesterday and we have seen it all week—a huge lack of imagination on the part of the Australian Labor Party in the Australian Senate. All week, they tried, hopelessly and unsuccessfully—and I will come to why 'unsuccessfully' in a brief moment—to prosecute the most spurious of arguments against the Attorney-General.

You are right; they could have been focusing on issues of substance, rising consumer confidence in the economy. They could have been talking about industrial disputation in the construction sector and why industrial relations reform, which this Senate will debate in a few weeks' time, is important. They could have discussed a whole variety of issues—but, no. They started on a course of action that failed this afternoon with Senator Brandis's revelation that Mark Dreyfus is guilty of grand hypocrisy.

So let's start at the beginning. I have great respect for Senator Moore, but Senator Moore's suggestion that this is actually not about contestability and legal advice and that this is actually not about whether or not the Attorney-General is free to get other sources of legal advice—that is exactly what this issue is about. And why do we know that? Because that is how Mark Dreyfus started the argument on 7 October.

Let me read from Mr Dreyfus's media statement of 7 October. To make it easy for you, I will start with the title: Brandis opinion shopping another sign of government dysfunction'. Mr Dreyfus uses some very, very colourful language. He says:

…that Attorney-General Senator George Brandis has been 'opinion shopping' for legal advice goes to the heart of concerns about the failure of Senator Brandis to work with Australia's second law officer …

And I will come in a moment to why that is not true. It goes on to say:

The job of the Solicitor-General is to provide legal advice to the government, to government ministers and to Heads of Department. Senator Brandis has clearly hobbled the ability of the Solicitor-General to do his job …

This is not true, and I will come to why that is in a moment. He goes on to say:

Senator Brandis' failure to consult the Solicitor-General breaks a century-long tradition of Attorneys-General and Solicitors-General working together on Commonwealth legal matters.

These are big grand statements from Mr Dreyfus. Finally, he goes on to say that the Attorney-General needs to explain:

…why he is not seeking the advice of the Solicitor-General on issues of public importance.…Senator Brandis has failed to consult the one person that he is expected to consult for legal advice.

This is not true—not true.

Today, Senator Brandis ended the week with a king hit against the Labor Party and its senators and their appallingly useless, futile efforts to brand Senator Brandis as a failure in his role as the chief legal officer of the nation. In contrast, Senator Brandis is an outstanding Attorney-General for this Commonwealth.

Let's get to the core of the issue. What is Mr Dreyfus's real view about opinion shopping? Do not ask me. Do not even ask the Labor senators on the other side. Let's ask Mr Dreyfus himself. There it is for the world to see on page 174 of the book by Professor Gabrielle Appleby, The role of the solicitor-general. You just have to go a little way down the page. For those of us that can read English, it is easy to see; it is crystal clear. It says:

Some former Attorneys-General indicated that they were willing to seek alternative legal opinions where they disagreed with the Solicitor-General's advice …

They 'were' willing to seek other advice—what Mr Dreyfus would call 'opinion shopping'. Then it says:

Similarly, Mark Dreyfus indicated that the Solicitor-General's advice was given a high status within government … Nonetheless, he—

Mr Dreyfus—

would, occasionally, seek another legal opinion. He explained that he might seek another opinion on particularly important political issues—

Mr Dreyfus says—

"Or two. Or three. Perhaps I might feel I needed two to outweigh the Solicitor-General's advice, and I would go and get very senior advice. And I've done that. And I would do it again …"

Mr Dreyfus is accusing Senator Brandis of things he has done himself in the past and that he believes are totally respectable and credible. The idea that there should not be contestability around important legal advice that governs the affairs of the Commonwealth is just ridiculous. (Time Expired)

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

Over the last 44 years, there have been 17-odd Attorneys-General, and there are some pretty august names in there: Gough Whitlam QC, Lionel Murphy QC, Kep Enderby QC, Sir Ivor Greenwood QC, Bob Ellicott QC, Senator Peter Durack QC, Senator Gareth Evans QC, Lionel Bowen, Michael Duffy, Duncan Kerr, Michael Lavarch, Darryl Williams QC, Philip Ruddock, Robert McClelland, Nicola Roxon, Mark Dreyfus QC and Senator George Brandis QC. Out of those 44-year history of the Australian Parliament, only one Attorney-General has had the capacity to actually be the story. Only one Attorney-General has an uncanny ability—as journalist Mark Kenny says—to put himself in the dock, not anybody else.'

All week there have been questions about whether he has handled the public statements properly, where there has been contestability about who said this and Senator Brandis said that. It is amazing. Whether it is the building of a bookshelf for his office, creative use of entitlements—the allegations are all in the public and media—the story is Senator Brandis. Whether it is his description of the Hon. John Howard, the most successful Liberal Prime Minister in this country's history, as a lying rodent', always the story is Senator Brandis.

The tragedy is: the Attorney General should be above all of this. The Attorney-General should be looking after the constitutional issues and the important legal mechanisms that make this great democracy function. They should not be the story. We should not have an Attorney-General, proclaiming across the floor of the Senate, that everybody has a right to be a bigot. That is not a considered approach. He might well be entitled to do that, but in my humble opinion our Attorney-General should be looking for the things that will bring us together and not the things that will tear us apart.

When he gave the answer to Senator Peris that 'everybody has a right to be a bigot', Senator Brandis became the story for that news cycle. The commentariat spent an inordinate amount of time discussing the rights and the ins and outs of all that, and I do not think it brought anything to his role as Attorney-General, and it certainly did not do our constitutional respect any good.

So the capacity to be the story is, as Mark Kenny states in The Sydney Morning Herald, an uncanny ability, and our Attorney-General has continually demonstrated his capacity to be the story. With the Northern Territory royal commission, trying to deal with that awful situation up there, the story became who said what and when. With the shackling of the Solicitor-General's office in terms of approach to advice, the story is who said what and when. At the forefront of all of this is our Attorney-General's capacity to be the story—not for the issues to get resolved and not for proper progress to be made in important legal areas but, once again, for Senator Brandis to be the story. He has displayed this uncanny knack.

In the last 40-odd years, among those 17-odd attorneys-general, there have been many colourful characters, divisive characters, people of very strong political opinions and people who have articulated arguments about their positions held and their positions carried out. But no-one in that list—and I can probably go back to 1972 and look at those attorneys-general—really demonstrated this extraordinary capacity to be the story. That is very unfortunate, because Senator Brandis is approaching three years and 24 days as the Attorney-General. Serving for seven years and 210 days was Daryl Williams QC, who would be the least known of attorneys-general. He was the longest serving, at seven years and 210 days.

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

No, he was not. He was not the longest serving. The longest serving was William Morris Hughes.

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

Well, in my information here he served for seven years and 210 days. But my point, I suppose, is that people on that list have done their jobs to the best of their ability and been as political as they can, but they have not been the story, and their credibility has not been the story. On that point I will rest.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Well, here we are again: day 4 of the most wet-lettuce opposition Senate attack I have seen in my short career and, I am sure, for many years before that in this place. It is day 4 of avoiding all major policy issues that this country faces. It is day 4 of pursuing the Attorney-General in what some may characterise—I would say fairly—as an obsession. So I was most amused in Senate question time today to hear the Leader of the Opposition in the Senate in fact imply that the opposite is the case and that the Attorney-General is obsessed with his shadow counterpart, Mr Dreyfus, the member for Higgins—sorry, I correct myself: the member for Isaacs. He is just a resident of Higgins. The member for Isaacs is in fact, I think on the evidence, obsessed with the Attorney-General, not the reverse, and the entire opposition seems to be affected by and to share this obsession, because in almost every question on every day this week, and with every motion to take note of answers after question time this week, we have dwelt yet again on this issue of the Solicitor-General. This might have been a reasonable issue to pursue for one day, or even two if they were really passionate about it and really interested in the intricacies of the relationship between the Attorney-General and the Solicitor-General, but to be continuing to talk about this issue, to the exclusion of almost all other issues—and, frankly, more meaty, weighty policy issues which affect the interests of their constituents—I think constitutes an obsession.

As Senator Brandis said, though, brownie points go to Senator Urquhart for taking up a policy issue in the last question of the week, the last question of question time today, the question of wind farms. I was saddened to hear, though, as a former fellow member of the Environment and Communications Committee, her lack of concern about herds in relation to wind farms. But I am sure that is not a reflection of her lack of concern for the environment and animals more generally.

In question time today, we had Senator O'Neill, senator for New South Wales, stand up and ask a question about the Solicitor-General. She could have asked, as my colleague Senator Duniam did, about counter-terrorism raids taking place in her home state. That might be of interest to her constituents. I suggest, if you ran an opinion poll, it would probably be of more concern than the Solicitor-General. We had Senator Farrell, senator for South Australia, asking about the Solicitor-General. I suspect his constituents are more interested in the fact that they had no power for 24 hours—that their power system entirely failed under a Labor government of some 14 years that he has had some hand in. But no; he would prefer to pursue the issue of the Solicitor-General. We had our new Senate colleague Senator Chisholm from Queensland ask a question about the Solicitor-General. I suspect, again, that his constituents might be more interested in the partnership with Singapore cemented this week, which Senator Macdonald asked about and which will be of tangible benefit and interest to his constituents, particularly in the north of Queensland, where a number of bases will be enhanced in a joint relationship with Singapore. We could have asked about that issue, but we did not.

This issue has been well ventilated and well explained. But I have to say I am pleased that we have gone into the fourth day of this issue, because it has unearthed a very timely publication, I must say, by Professor Appleby—and full congratulations to her and her publishers on getting such a timely publication out just very recently, to precede this debate. We heard in a media release from Mr Dreyfus on 7 October that it is a shocking practice to engage in what he describes as 'opinion shopping for legal advice'—that is, seeking alternative legal advice to that of the Solicitor-General. Without having delved into Mr Dreyfus's role as Attorney-General, I would have thought that it would be an entirely reasonable thing to rely on more than just one person for legal advice. The Solicitor-General is an eminent lawyer, but he is not God. His views on law are no doubt worth seeking, but not to the exclusion of all others. As it happens, it turns out it is not just the current Attorney-General who has that view and that belief; it is also a distinguished previous Attorney-General—a short-serving one, to take up Senator Gallacher's point, but an Attorney-General nonetheless: Mr Dreyfus, who himself said in an interview with Professor Appleby in her recently published book:

Perhaps I might feel I needed two to outweigh the Solicitor-General's advice, and I would go and get very senior advice. And I've done that. And I would do it again. Because, despite the fact that I say that the Solicitor-General has got higher status, she or he is still just a barrister. And, most difficult legal problems are capable of another outcome. I mean, if I've learnt [anything] in my legal career, I've learnt that.

Well, I suggest that Mr Dreyfus has a little bit more to learn in his legal career, and I hope we see evidence of that soon.

Anthony Chisholm (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

What we have seen today is really a continuation of what we have seen from Senator Brandis since the dispute with the Solicitor-General first started, and that is a consistent effort to be tricky with his answers. I think we need to look at where this is all heading for the Attorney-General. In my view, it is a descent by the Attorney-General into a real Donald Trump view of the world. What goes on in the locker room—I am not talking about the locker room here; that is another matter for Trump. I do not know what happens in the Attorney-General's locker room. What I am referring to here is an effort from Trump, like what we are seeing from the Attorney-General, to suggest facts do not matter. They are creating their own world views of how they operate and how they answer their questions.

Let's go through the pattern of what we saw today and what we have seen since this first became an issue. Since the Solicitor-General's statements last week, the Attorney-General and other government members have simply doubled down on their misleading statements, which are clearly at odds with the acknowledged course of events. Senator Brandis is continuing to deny the sky is blue and is setting a very bad example both as Attorney-General and as Leader of the Government in the Senate. The answers the Attorney-General gave today—indeed, all this week—leave a lot to be desired.

Misleading parliament is not the only worrisome part of this whole sordid affair. There is the continued procedural bungling by the Attorney-General who is clearly not across his brief. Let's look at the history of some of those issues. First there were the proposed changes to section 18C of the Racial Discrimination Act, where the Attorney-General infamously said, 'You have a right to be a bigot.' The Attorney-General did a real good job there of building community opposition to that one. Let's not forget the poorly-treated President of the Human Rights Commission, Professor Gillian Triggs, and the inability of the Attorney-General to maintain that relationship. You can see a real pattern of events occurring here. Then there was the claim to have consulted with the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Mick Gooda, before establishing the Don Dale royal commission, when no such consultation occurred. Now there are the false claims to have consulted the Solicitor-General on the proposed changes that would effectively reduce the quality of the advice that the government receives.

Yesterday, we saw this bungling spread to the other side of the parliament as well. Yesterday, for the first time in the history of Federation, an opposition second reading amendment was carried in the House. This was not the government's plan; the government simply forgot which way they were supposed to be voting. This is what I am saying: this is the pattern of what we are seeing from the government. The Attorney-General is supposed to be a leader, and this is what is happening under his watch. This means the House of Representatives passed a unanimous resolution about how bad the government is on multinational tax avoidance.

While we are talking about the Attorney-General's slippery story, let's not forget the desperate power grab at the core of this. Do not take my word for it; what does the former Solicitor-General Dr Gavan Griffith, who was in the role for 14 years, have to say about the proposed changes? He says 'the result will be the demeaning of the office to the equivalent of attracting monkeys.' This is from the former Solicitor-General Gavan Griffith, who was in the role for 14 years. He went on to say:

A government of integrity should not shirk from obtaining disinterested peak advice of integrity from its SG. It should not shop around, or even refrain from obtaining the second law officer’s advice on matters where is suspects the advice may be contra the government’s preferences.

At a time when this bumbling government cannot even run a parliament properly, it should be taking all the independent advice it can get.

I come back to my important point about the Trump world view and how this fits into it for the Attorney-General. What we have seen is the unravelling of this strategy from Donald Trump in America, where he has been trying to operate in a post facts world. That is clearly starting to do him damage. I think what we have seen from the Attorney-General over the last couple of weeks as he has had to answer questions on this is a similar thing occurring. My advice to the Attorney-General is that he needs to start being honest in this parliament and answer the questions properly. The trickiness must stop. It is important for the Attorney-General to front up and answer the questions.

Question agreed to.