Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

I present the report of the Legal and Constitutional Affairs References Committee on the consultations prior to the making of directions concerning opinions of the Solicitor-General, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

It gives me no pleasure to affirm to the Senate chamber today that this inquiry has clearly demonstrated the unfitness of the Attorney-General to hold his high office and to affirm that he has misled the Senate with his statement in the explanatory memorandum to the Legal Services Directions and in answers to questions that he has 'consulted' the Solicitor-General. The A-G's claims to have consulted the Solicitor-General are so obviously misleading that they defy logic and show a complete disregard for any sense of proper process. This is not a finding I make lightly. It is formed after looking very carefully at the evidence provided to the committee. It includes the evidence from Senator Brandis, Mr Gleeson and other well-qualified witnesses.

The evidence also demonstrates that the failure to consult has had a serious impact on the confidence that we should have as a nation in the rule of law. The evidence further demonstrates that the failure to consult means that the Attorney-General was not in fact informed that the instrument that he implemented was wrong in law. As the committee has shown, the A-G has tried to use a completely fanciful definition of 'consultation' when interpreting the requirements of section 17 of the Legislation Act 2003. Senator Brandis himself in evidence said to the committee:

Let me address, or get to the heart of, what appears to be the real issue being considered by this committee, which is the question of what constitutes consultation for the purposes of section 17 of the Legislation Act ... The issue underlying this committee's inquiry boils down to a difference of opinion about the meaning of a word.

Senator Brandis provided a definition of 'consultation' to the committee. He said:

When I use the word 'consult' what I mean is to confer about, deliberate upon, debate, discuss ... a matter. When one consults someone, one asks their advice, seeks their counsel, has recourse to that person for instruction, guidance or professional advice. That is what I mean when I use the word 'consult' and it is clearly what my department considered the word meant when they drafted the explanatory statement. These are not some sort of idiosyncratic understandings of the word. They are ... the way the word is defined by the Oxford English Dictionary ...

Indeed, Senator Brandis handed to us in the committee his definition. I note that the definition handed to the committee included 'a person deliberating with himself'. Perhaps that is what the Attorney-General had in mind. However, Senator Brandis said very explicitly not merely that he had consulted but that he had consulted the Solicitor-General. It is clear that at no stage with respect to the Solicitor-General did the A-G ask the Solicitor-General's advice, seek his council or utilise recourse to the Solicitor-General for instruction, guidance or professional advice with respect to the new legal services direction. The facts speak for themselves. Let me briefly outline them.

The A-G argues that he undertook appropriate consultation at a meeting in November 2015 when considering suggestions on a draft guidance note. However, section 17 of the Legislation Act refers to consultation in relation to a proposed instrument. There was no proposed instrument at that point in time. Neither the Australian Government Solicitor nor the Secretary of the Attorney-General's Department made any reference to a new legal services direction in any record of that meeting. On 12 April, the Solicitor-General's office, on behalf of the Solicitor-General, made an inquiry of the Attorney-General's Department asking for updates on guidance note 11. That same day the department replied saying they would follow up with the A-G's office, but that they would not be able to respond immediately.

In giving evidence, Mr Iain Anderson, Deputy Secretary of the Attorney-General's Department, said they were aware of the new direction on 20 April 2016, and on 27 April and 28 April the department and the Office of Parliamentary Counsel liaised on the content of the draft direction. On 29 April the Solicitor-General's office again emailed the department inquiring about an update on guidance note 11. The department did not advise the Solicitor-General about the work undertaken, instead advising:

I understand the AG is writing directly to the SG about this.

We know from evidence that the Attorney-General substituted the guidance note to become the new legal services direction, but the fact is there was no liaison on either matter, despite the Solicitor-General's active inquiry. The first time the Solicitor-General was advised about the direction was when it was issued on 4 May 2016.

It is clear from the evidence provided by both the Solicitor-General and the Attorney-General that the Solicitor-General was not consulted on the direction, he was afforded no opportunity to comment on the specific content of the proposed direction and he was not informed of its development, or any intent to develop it. The Senate must take account of these facts, just as the committee has, when considering the ramifications of this report. In fact, as the committee highlights, it brings to mind the quote by Lord Atkin in the case of Liversidge v Anderson, where he says:

I know of only one authority which might justify the suggested method of construction. 'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean, neither more nor less'.

That is a quote, of course, from Alice in Wonderland. The report also says:

For the statement that the 'Attorney-General has consulted the Solicitor-General' to be true, the Attorney-General would have needed, at a minimum, to have advised the Solicitor-General of his intention to introduce a new instrument and provide him an opportunity to comment on its content.

He has therefore made what are very clearly false and misleading statements to this place.

I am not going to have time to go into the very clear undermining of the rule of law that arises from this legal services direction, but what I can say is that because of the failure to consult the Solicitor-General was deprived of an opportunity to highlight the ramifications of the instrument that was introduced, which are significant indeed, because they are 'a radical change in how Solicitors-General have acted since 1964 under the Law Officers Act'. That in fact means that the instrument itself is wrong in law. Indeed, what is also included in the instrument is the fact that the Solicitor-General is required to go through the Attorney-General before giving any advice. That is the nature of the substantive change and it has significant ramifications for the rule of law in our country, because the office of the Solicitor-General should be an independent one.

So in tabling this report today I affirm our recommendations:

That the Senate disallow the amendment to the Direction or the Attorney-General withdraw it immediately, and that the Guidance Note be revised accordingly.

  …   …   …

That the Attorney-General provide, within three sitting days, an explanation to the Senate responding to the matters raised in this report.

  …   …   …

That the Senate censure the Attorney-General for misleading the parliament and failing to discharge his duties as Attorney-General appropriately.

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

This report is another sad part of an unfortunate history of the Senate Legal and Constitutional Affairs References Committee, which is now renowned for the inappropriateness of its inquiries and investigations. Nobody takes any notice of anything the majority of the committee ever reports on, because the references are always political references. They have nothing to do with the good order and management of the country, the economy or the nation. They are always a political witch-hunt, and regrettably this inquiry into the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 by this unfortunate committee is the same. I have expressed concern before that the Senate committee system, which used to have a good reputation for producing quality reports that really assisted the nation, is now bogged down in a continual witch-hunt, where the three Labor members and the Greens member of the committee outvote the two government members. They do what they like. The committee is not a committee of the parliament or of the Senate. It is a committee of the Labor Party and the Greens, wasting Senate resources on political witch-hunts which go absolutely nowhere.

The only report worth reading is the one put in by Senator Reynolds and me as the government members on the committee. It sets out in detail, for those who might be interested, why the recommendations of the Labor and Greens senators were so inappropriate and just a political exercise. I am not going to go through that in detail. It is there for anyone to read. If you want to understand the real significance of this whole issue, read the coalition senators' report.

In the few minutes left to me I want to make some broader observations. The Solicitor-General resigned his post on 24 October, during the course of this inquiry, and I think that says something in itself. Coalition members commend the Solicitor-General for taking this decision because, in our view and the view of any reasonable observer, the Solicitor-General's position had become untenable and his resignation was an unavoidable consequence of the public inquiry. The Labor Party and the Greens set up this inquiry for no other reason than to attack Senator Brandis, but what happened? Thanks to the Labor Party and the Greens, a man who has devoted much of his life to public service was forced to resign—a man who the Labor Party, I might say, appointed to his position in the dying days of the Rudd-Gillard-Rudd government. You could almost say that, rather than getting Senator Brandis as they tried to do, they got their own man and he did the only thing that was open to him: he resigned from his position.

The evidence showed that the Solicitor-General had made a couple of what I will euphemistically say were unfortunate decisions. As a lawyer, he knows that it is not appropriate for him to tell the world about who he is giving advice to and what he is giving advice about, but the Solicitor-General, as is clearly shown in the Hansard evidence and as we highlight in our report, on three occasions told the world that he had given advice to someone on a certain matter. Any lawyer knows you do not do that. He did not seek the permission of his clients—in one case the Prime Minister, in other cases the Attorney-General—to expose the fact that he had given advice. The first I knew that the Solicitor-General had given some advice on the position of senators—and I was a bit worried when I read this because I thought it might have been something to do with me—was when he exposed to the world that he had given advice to the government on the qualifications of senators. I did not know what that was a few weeks ago. I suspect I know now what it was all about. It is inappropriate for any lawyer to disclose that he has given advice on any particular matter. He told the world that the Prime Minister had asked him for advice. That is not the role of the Solicitor-General. The Solicitor-General is a senior public servant and should abide by the rules of his job and the normal rules of the legal profession. The Solicitor-General said, in a weak excuse, 'I only mentioned the Prime Minister because the Prime Minister mentioned it in the other chamber two days ago.' Unfortunately for the Solicitor-General, he had released that information a week before, when he put in his written submission, which he knew—or should have known—would be made public. Not only did he err but he then tried to cover up that error with the weak excuse that the Prime Minister had himself alerted the world to the fact that he had sought advice. But the Prime Minister only did that a week or so after the Solicitor-General had made it public.

There is another unfortunate aspect to the Solicitor-General's tenure. During the caretaker period, to which, as we all know, very careful rules apply, the Solicitor-General of his own accord had a conversation with the shadow Attorney-General, Mr Dreyfus, about matters that were occurring in the government. That is a no-no. Any basic student of the caretaker period would know that you do not do that or, if it is a matter of urgency that you do do that, the first thing you do is report that to the department or to the Attorney-General. Unfortunately the former Solicitor-General, Mr Gleeson, had a conversation with Mr Dreyfus and did not report it. He did not speak about it either to the department or to the Attorney-General, and that just does not happen within the Public Service. In fact, it was only when he was questioned at this hearing about whether he had ever spoken to the opposition when he held the position of Solicitor-General to the government that he admitted that he had actually spoken to a member of the Labor Party opposition during the caretaker period, and that in itself is inexcusable.

On the issue, the Solicitor-General seemed to think that, as the second law officer, he was the decision-maker. It is quite clear that the decision-maker on these issues is the person who is accountable to parliament and through parliament to the people of Australia—not a statutory office holder who has a fixed term of office and is accountable to no-one except the Attorney-General.

Opposition Senators:

Opposition senators interjecting—

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

Order on my left!

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

Thank you, Mr Acting Deputy President. The Labor Party do not like this. They realise they have made a huge mistake. They went out to get Senator Brandis and they ended up getting their own man. The Solicitor-General seemed to think that he gave advice to the Attorney-General and to other ministers, and he seemed to think that, simply because he had given the advice, it should have been taken. He thought his advice was sacrosanct. He did not think the Attorney, who is quite a brilliant legal mind himself, might say: 'Well, I'm not quite sure about that legal opinion. I might get a legal opinion from a QC in the private profession—one who has a reputation for excellence,' which the Solicitor-General may or may not have had. But the Solicitor-General seemed to think that, because he gave advice, that was it and the Attorney-General had to not only accept it but also act on it. So I think the Solicitor-General did the right thing in resigning. He obviously realised he had made mistakes, and he did the only thing open to him.

Opposition senators interjecting—

As for the question of Senator Brandis telling the chamber—and unfortunately I only have 20 seconds—

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

Senator Scullion, on a point of order?

Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Link to this | Hansard source

We have listened in silence to several statements that would have brought your attention to the standing orders. Generally the convention is we let that go through to the speaker. But we listened to them in silence, so I wonder if you could ask the other side to provide the same courtesy.

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

Thank you, Senator Scullion. I repeat that interjections are disorderly and the senator is entitled to be heard in silence.

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

Senator Brandis did consult. The evidence is there showing the consultation on both the guidance note and the direction, which are in exactly the same words. The department actually gave advice to the minister that he had, in fact, consulted in accordance with the act. (Time expired)

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

I would also like to speak on the tabling of the Legal and Constitutional Affairs References Committee's report detailing the committee's findings from its inquiry into the consultation prior to the making of directions concerning the opinions of the Solicitor-General. And what a sordid tale it is, with yet again the lead actor in another drama involving the Turnbull government being the Attorney-General, George Brandis. Of course the Attorney-General, we all know, has form in misleading this parliament. There was the terrible misleading of parliament that occurred by him in relation to the tragic events at the Lindt cafe. This is the man who has already been sanctioned by this Senate over his failure to protect the President of the Human Rights Commission, Gillian Triggs, and I expect that we will continue to see more bombardment of Gillian Triggs by this government and this Attorney-General in coming weeks. Not only that, but this is the Attorney-General who engineered appointment after appointment of Liberal Party mates, donors, staffers and failed candidates to the Administrative Appeals Tribunal.

So this Attorney-General has form, and now his actions have resulted in the resignation of Australia's Solicitor-General—the foremost legal mind when it comes to Australian public and constitutional law—Justin Gleeson SC. As I said, he is one of Australia's foremost legal minds. This is a man who has represented the Australian people with distinction in the International Court of Justice. He led the charge for Australia, along with former Attorney-General Mark Dreyfus, to stop Japanese whaling near Australian waters. Mr Gleeson has represented the Australian government as Solicitor-General in dozens of complex constitutional cases before the High Court of Australia. Unfortunately, due to the actions of this Attorney-General and this government, we no longer have Mr Gleeson serving in that role—and advice to this government will be much the poorer for it.

The committee heard evidence from a number of people—from the Attorney-General and the Solicitor-General, from two former solicitors-general, from a number of independent experts on the relationship between governments and the Solicitor-General, and from other witnesses as well. That evidence allowed the committee to draw three very clear conclusions: firstly, the direction that was issued by the Attorney-General to constrain the ability of the Solicitor-General to provide independent legal advice was inappropriate, improper and probably invalid; secondly, the Attorney-General did not in fact consult the Solicitor-General on the content of the direction as he was required to do by law; and, thirdly, the Attorney-General misled the Senate again by repeatedly and falsely claiming that he did consult the Solicitor-General.

As a result of these conclusions, we have recommended that the Attorney-General withdraw the direction or that it be disallowed by the Senate in due course. It is not a common action for the Senate to disallow a regulation or an instrument issued by a minister, and the fact that the committee is recommending this demonstrates the seriousness of the Attorney-General's mishandling of this matter and his improper conduct in dealing with the former Solicitor-General.

Turning to each of those three conclusions: firstly, the committee determined that the direction is improper, inappropriate and invalid. One of the things that have been lost at times over this inquiry is exactly why it is so crucial that we have an independent Solicitor-General. Recently the Australian Lawyers Alliance, one of the peak bodies representing lawyers in this country, issued a statement saying:

There is a compelling public interest in having the Solicitor-General as an independent statutory counsel to government. A core purpose of the position is to provide frank and fearless advice to government. Senator Brandis' actions flagrantly ignore this, and bring discredit on his position as Attorney-General.

This Attorney-General has lost the confidence of many members of his own profession—the legal profession—who are represented by that body.

Why exactly does it matter that we have an independent Solicitor-General? This is something that lawyers are concerned about and it is something that many academics are concerned about. But why does it matter to the average person in the street? I will give you a couple of examples of why it really does matter that we have an independent Solicitor-General. Just imagine, as is occurring right now, that the Electoral Commissioner needs to seek advice from the Solicitor-General about the legality of a particular member of parliament remaining in this parliament. What would ordinarily happen is that the Electoral Commissioner would be free to go and get that advice independently from the Solicitor-General and get the very best advice on whether a member of parliament is fit to remain in this parliament. That kind of advice takes on particular importance when you have a situation like we do at the moment—a government with a bare majority that is desperate to hold onto every single vote it possibly can have. The effect of this direction that has been issued by the Attorney-General is that, if it is to pass, then the Governor-General, the Prime Minister, any minister, any departmental head or any statutory official—like the Electoral Commissioner—would need to seek the Attorney-General's permission before seeking advice from the Solicitor-General. Do we really believe that this Attorney-General, with his record of misleading this chamber and treating independent statutory officials extremely unfairly and making their positions untenable, would agree to an Electoral Commissioner coming forward and saying they want to get advice from the Solicitor-General about whether a particular member is fit to remain in parliament? I do not think so.

I will give you a second example. This election was a very tight one; there was a distinct possibility that we could have had a hung parliament. In that kind of situation, it may well be the case that the Governor-General of the day wants to seek the Solicitor-General's opinion on how the Governor-General should deal with the parliament—who the Governor-General should ask to form a government.

Again, as a result of this direction, the Governor-General of this country, our head of state, would need to go to the Attorney-General and get the Attorney-General's permission to go and seek that independent legal advice from the Solicitor-General. This is a disgrace. Do we really think that this Attorney-General, of all people, would give the tick to the Governor-General seeking that kind of legal advice when this Attorney-General does not seem to like the advice that is sometimes provided to him? This direction throws the independence of the Solicitor-General out the door, and it is an absolute disgrace.

That was the first conclusion reached by the committee. The second was that the Attorney-General had failed to consult the Solicitor-General. That was the main function of this committee. That need to consult the Solicitor-General arises under section 17 of the Legislation Act. Essentially it says that if a rule maker, who in this instance was the Attorney-General, proposes to make a rule, then they need to consult the people who would be directly affected by that instrument. There is no-one who would be more directly affected by this direction than the Solicitor-General himself. It was very clear under section 17 of the Legislation Act that the Attorney-General was required to consult him.

It is not surprising therefore, that when the explanatory note was provided to go along with that direction it claimed that the Solicitor-General was consulted. Again, the Attorney-General has repeated that statement—that the Solicitor-General was consulted—on a number of occasions to this chamber. Unfortunately for the Attorney-General, though, the evidence that was heard by the committee does not back him up. The Attorney-General relies on a meeting that was held in his office on 30 November 2015. Over and over again we have heard the Attorney-General say that he consulted the Solicitor-General at this meeting on 30 November 2015. The problem for the Attorney-General is that there were other people who were present at that meeting and not one of them has come forward to back up what the Attorney-General is saying.

The Solicitor-General was obviously smart enough to keep a record of that meeting and to circulate it to the other people who attended that meeting. The Solicitor-General set out every item that was discussed at that meeting and—what do you know?—there was no mention of the direction. Why was that? It is because it was not discussed. That meeting record was sent to the other attendees at that meeting, who included the former Australian Government Solicitor and the secretary of the Attorney-General's own department. They were asked to provide feedback on that meeting record to add anything that was omitted, or anything at all, and both of them came back agreeing with that meeting record. Not one of those people, including the Australian Government Solicitor or the secretary of the Attorney-General's own department, believed that this direction was raised at the meeting that the Attorney-General relies on when he argues that this consultation occurred.

We had evidence from the deputy secretary of that department saying that the department was not aware of the direction until 20 April 2016. How could the Attorney-General have consulted the Solicitor-General in November 2015 when his own department did not know about this direction for five more months? Eventually in evidence to the committee the Attorney-General did acknowledge that the first time the Solicitor-General was advised about the direction was when it was issued on 4 May 2016. Again, how could he have consulted in November 2015 when the Solicitor-General did not know about it for months?

So it is no surprise that the committee reached the view that the Attorney-General did not consult. He has compounded his error by misleading the parliament. He has to resign. He has to withdraw his direction. He has to go. (Time expired)

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

This has been a sad and sorry saga since day one. The Australian Greens, through my representation on this committee, listened very carefully to the evidence provided to the committee by the then Solicitor-General, Mr Gleeson. We listened very carefully to the evidence of a number of other witnesses, including the Attorney-General, Senator Brandis. We have come to the conclusion that, in fact, Senator Brandis did not consult with the Solicitor-General on the legal services direction that currently sits on the table in the Senate. Of course, having formed the view that there was no consultation undertaken, we therefore have to form the view that the Attorney has in fact misled the Senate, because in the explanatory memorandum that accompanied the direction the Attorney claimed that he had consulted with the Solicitor-General. The Solicitor-General's evidence was abundantly clear. He does not believe that he was consulted. So we have the Attorney-General saying he was consulted but we have the Solicitor-General saying that he was not consulted.

When we tried to tease out what this all meant, it became clear to us that in fact the Attorney-General is placing a construction on the word 'consulted' that is not a reasonable construction of that word. The only evidence that the Attorney was able to offer the committee to back up his assertion that he had actually consulted the Solicitor-General was one series of contemporaneous notes taken by one of his advisers in which the initials 'LSD' were written. Those initials stand, we believe—reasonably so—for 'legal services direction'. That was the only evidence that the Attorney was able to provide.

I want to say something clear about consultation. What we believe a reasonable consultation would entail is far more than simply floating a thought bubble or a comment lacking in context at a meeting that mentions the ultimate end, which as it turned out was the Attorney's tabling of the legal services direction in the Senate. Mr Gleeson does not believe he was consulted. On a reasonable construction of the word 'consulted' he was not. Therefore the Attorney has, in the view of the Australian Greens, misled the Senate by claiming that he was consulted.

In the brief time I have today I want to cover another couple of matters that this report has exposed: firstly, the Attorney-General's penchant for shopping around for politically convenient legal advice. This was revealed in part by a letter from the then Solicitor-General, Mr Gleeson, to the Attorney dated 12 November 2015. Reading that letter, it is abundantly clear that the Solicitor-General has concerns about the fact that he was actually not being consulted on important constitutional matters, including the constitutionality or otherwise of particular pieces of legislation or particular proposals that the government was considering. Of the two examples he gave, one related to citizenship legislation—a proposal to suspend or revoke a person's Australian citizenship—and the other one was a proposal that related to marriage equality. Both of those matters were the subject of constitutional advice from the Australian Government Solicitor. I do not make any negative observation about the capacity of the Australian Government Solicitor's office to offer constitutional advice, but I do make the point that when the government ends up in the High Court debating the constitutionality or otherwise of something it has done, it is the Solicitor-General who is the counsel to government. It is the Solicitor-General, or his office, that will be appearing for the government in relation to those matters. So if you are going to take constitutional advice you should take it from your counsel: the second law officer in this country, the Solicitor-General.

We have concerns that the Attorney was shopping around for politically convenient legal advice. It is worth making the point that the government have done it again on the amendment bill to the Migration Act that has been tabled today in the other place. In fact, it is clear they have sought advice from the Australian Government Solicitor and the private bar but they have not yet publicly said that they sought advice from the Solicitor-General on that bill. They have not yet publicly said that, so that is a question for the Attorney.

There are issues around the rule of law here and Professor Appleby's evidence to the committee. There are issues around the effect of the legal services direction, which in the view of Dr Gavan Griffith QC, a former Solicitor-General, effects 'the practical destruction of the independent office of the second law officer' and leads to 'perceptions as to the integrity of the continuing office'. Dr Griffith concluded that remark by saying, 'The uncomfortable image of a dog on a lead comes to mind.'

One other matter that has been exposed by this committee report is the significant variance in the copies of the same letter that were provided to the committee by the Solicitor-General and by the Attorney-General. When you look at the two different copies of the letter, the difference is the amount of each letter that was redacted under a claim of legal professional privilege. It is very instructive that the Attorney has redacted far more of this letter than has the Solicitor-General. This brings to mind issues around claims of public interest immunity that are brought to this place by government ministers.

It is worth noting that on 48 occasions the Abbott and Turnbull governments have refused to provide to the Senate documents that have been demanded by the Senate. Claims of public interest immunity by this government are rife, and the Greens believe that this is a matter that needs further examination by this house of the Australian parliament. We believe it is of such importance that there ought to be a select committee created by this Senate to have a look at the many claims of public interest immunity that have been made by this government and assess whether or not they are reasonable claims.

We will, in the very near future, be getting in touch with the Manager of Government Business in the Senate and other representatives of government and the crossbench to discuss this issue. We want to do it collaboratively and constructively. It is time for the Senate to stand up and be counted, because we are arguably being treated with contempt by the government.

It is worth pointing out that parliament is sovereign over executive government. It is not the other way round. You can only form a government if you can cobble together a majority on the floor of the House of Representatives. That is the way our Westminster system works. The parliament remains sovereign. If the parliament demands information, the government should allow its claims of public interest immunity to be thoroughly tested.

We believe we need to look back over those 48 times where the Abbott and Turnbull governments have refused to provide documents demanded by this Senate and assess whether in fact the claims of public interest immunity were reasonable and valid. This needs to be done holistically; it needs to be done carefully, because, of course, there may well be information in those documents that the government has refused to provide that is legitimately subject to the claim of public interest immunity.

We think this needs a closer look. We think the government is developing a culture of noncompliance with orders for the production of documents by the Senate, and we believe the government is, arguably, wilfully obstructing the powers of the Senate, and that would be a most serious matter. All of those issues have been raised by this inquiry.

Finally, I want to say that the character assassination under parliamentary privilege of the former Solicitor-General, Mr Gleeson, that was conducted by Senator Macdonald was an absolute disgrace. It was one of the worst uses of cowards castle I have ever seen in my life—

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

Senator McKim, your time has expired. Are you seeking leave to continue your remarks?

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

Yes.

Leave granted.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

I rise to make a contribution to this debate with respect to the report on the consultations prior to the making of directions concerning opinions of the Solicitor-General. Firstly let me start perhaps on an area to which I had not necessarily intended to devote much time. I too have an interest in these claims of public interest immunity. It may be of interest to the previous speaker that I had a situation where Professor Triggs made not one, not two but three claims of public interest immunity to a line of questioning. It was a pure estimates matter. We were showing interest in how she and her commission had spent our money. We were investigating what, to the rest of the world, seemed prima facie to be quite frivolous matters.

It may be of interest to you that I was unable to secure the support of one of your colleagues in the committee meeting to challenge the claim that had been made by the good professor. It did not matter. We had some very sound legal advice. In fact, our colleagues from the Labor Party were contemplating supporting a rejection of the public interest immunity claim that had been made, in the interests of transparency and providing the information to the committee that it required, but your colleague was the one who resisted, very energetically, against having the public interest immunity claim determined as having not been valid.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Who was that colleague?

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

I am not in the business of that. The colleague is not in the Senate any longer. I participated in an examination of the Solicitor-General. I have been, along with Senator Macdonald, the subject of some public commentary in relation to our examination. I do not speak for Senator Macdonald; I speak purely for myself. My examination of Mr Gleeson was initially directed at trying to clear up this perception that he had become politically active in the question that was before the Senate. As time went on, the evidence revealed that Mr Gleeson had engaged in behaviour that prima facie was very political.

You will not agree with me, Senator Pratt. You did not agree with me on the day, through you, Mr Acting Deputy President. As an officer of the Crown, the second law officer, it has been forgotten by many of you, works and has a responsibility in the relationship with the first law officer. It does not matter who is in government—whether it is the Labor Party, the coalition or, as anticipated in about 300 years time, a Greens government—that government has to have the confidence in its officers and within their relationships that those officers are not engaging in political activity.

I cannot in good conscience separate the behaviour of Professor Triggs, over a long period of time, and Mr Gleeson. Neither of these people, I suspect, can take the defence that they did not understand what they were doing. I suspect they are very intelligent. They are very well educated people. They do not have the defence that, as my old boss in the police used to say, 'It's not that he didn't know. It's that he didn't know he didn't know, is his defence.' In this case neither of these very senior legal professionals are able to take the case.

When the government was in caretaker mode it is politically an acutely sensitive time—it is the time everyone is shopping to get an edge. For both of these very senior officers of the Crown to have conversations with the opposition and the shadow Attorney—anybody who did not realise that that had a certain political volatility about it simply is not thinking. Even if in having done that their silence in not advising—in this case the second law officer advising the first law officer that he had engaged in a conversation with the shadow Attorney-General on a matter of great volatility—is deliberate concealment on his part in this case.

Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

They were in caretaker mode. There was no such obligation.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

I know that this does not sit comfortably with you. I know that when we sit down and lay these things out deliberately and carefully it becomes very uncomfortable for you because of what you would prefer to think. Imagine a world where the senior officers of a government of the day could do what they liked and could engage in conversations with whomever they liked and where confidential information passed between officers of the government and the opposition. Given the nature of how our parliament operates, you do not think that would be a problem? I know that that became the norm under Labor governments. In fact, I think it contributed significantly to bringing you down. You guys do not even do it through the concealed method. You wait until someone wants to run a three-part documentary and then you play yourself. You actually get an old phone so that it does not look like you have the new iPhone, because that conversation took place three years ago. I will tell you what we are not going to do that: we are not going to take a lecture off you guys about what standards need to be met by senior officers of the Crown, who are paid pretty significant money to get on and do the business of the Commonwealth.

Let us come down to the question at the heart of this issue. This is to do with two documents. It is the tale of two documents. You had a guidance note and then a legal services direction. These two things bore a relationship to each other. Admittedly, there is an argument that one carried more weight than the other. One was more prescriptive in the sense of how one had to react to it.

An opposition senator interjecting—

Hold on. Listen: I rarely do this, but I sat here quietly while you spoke. So I would appreciate it, through you, Mr Acting Deputy President—

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

Senator O'Sullivan, please direct your comments through the chair.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

Through you, Mr Acting Deputy President, you might ask him to sit quietly. I know that I am really on the money when I start to get the interjections, so the more you interject the louder I will get, but I will get my message through. We have two documents here that bear a relationship to each other. There is no challenge on the part of Mr Gleeson and, in fact, there is no challenge on the part of the Attorney-General that discussions took place. There was engagement between the Attorney's office and Mr Gleeson's office. There was engagement between the Attorney's office and his department. There was engagement between the department and Mr Gleeson. All that is out in evidence. I do not think anybody is disputing that. We have a guidance note that was developed in a discussion. There are minutes to show that the legal services direction had at least been in the conversation. You can challenge, if you will, the detail provided by whoever took the minutes on the day. We can have that discussion on another day. Statements have been made in this place that these things were discussed. At the end of the day, Mr Gleeson made input to one of the documents, where that input and other input is reflected in the second document. I have to tell you that I had a couple of hundred staff before I came into this place. If I had run my business the way we run this parliament, I would have been broke by Tuesday lunchtime—seriously. I would have known by Monday afternoon that I was going broke on Tuesday.

An opposition senator interjecting—

I will take that interjection reflecting on Mr Day. He would buy and sell 100 of you on any given day, and he is a much better man than most of you. So, coming back to the question— (Time expired)

John Williams (NSW, National Party) Share this | Link to this | Hansard source

I seek leave to continue my remarks in relation to this discussion on the tabling of this report.

Leave granted; debate adjourned.