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

I move:

That the Senate take note of the answer given by the Attorney General (Senator Brandis) to a question without notice asked by Senator Pratt today relating to the extent of consultations surrounding the making of a direction concerning the Solicitor-General.

The Attorney-General is no white rabbit. All the king's horses and all the king's men cannot unscramble Senator Brandis's answer. The dissenting report that the coalition members of our committee put together and that Senator Brandis has referred to in his answer tries to justify why no consultation can somehow be defined as consultation. Indeed, this is how we end up in Humpty Dumpty land. The report of coalition senators says that the Attorney pointed out during his evidence that section 17 of the act establishes a rule-maker's obligation to consult when making an instrument such as the direction. This I well understand to be the case.

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

On such terms as he sees fit.

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

Indeed, the Attorney-General may define that consultation as he sees fit. However, what that does not, in my view, enable him to do, if he could say he consulted and fulfilled his obligations under the act—

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

Senator Pratt, just a moment—it seems that the clock is not on.

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

What the explanatory memorandum says quite specifically is not that you consulted but that you consulted the Solicitor-General. In the minority report you say that Mr Gleeson is entitled to his idiosyncratic understanding of what consultation is, and indeed the Solicitor-General says:

If one has a duty to consult over the issue of a legislative instrument, the first thing you have to do is tell the person affected or the person with expertise that you are thinking of issuing a legislative instrument. If you do not tell them that they cannot provide you with meaningful comments on either the legality or the wisdom of what you are doing. The second thing you have to do is tell them the substance of what you propose to put in the instrument. Now, if the Attorney had done both those things, the issues that we now have before us would have played out in a very different fashion.

So I very much stand by the findings of our report—

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

These are not findings; this is political rhetoric. Nobody would class those as findings.

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

Order, Senator Brandis! Senator Bilyk?

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Madam Deputy President, I am having trouble, with the interjections from the Attorney-General, hearing Senator Pratt's fantastic contribution on take notes today.

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

On the point of order, Madam Deputy President: Senator Bilyk must have misunderstood—I was merely pointing out to Senator Pratt that 'findings' is a term that is used about a tribunal of fact, not a political committee.

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

I have called order a number of times, and I remind senators in this place that when senators are speaking they have a right to be heard in silence.

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

Government members of the committee—again we find ourselves in Humpty Dumpty land—see fit to say in defending the Attorney-General's assertion that he has consulted the Solicitor-General:

… it is also important to observe what that Explanatory Statement did not say. It did not say that the Attorney-General had consulted the Solicitor-General in some specific fashion. It did not say, for instance, that he had consulted the Solicitor-General about whether he thought a Direction in some precise form should be issued. It did not say that the Attorney-General had consulted the Solicitor-General by providing him with an exposure draft of the instrument. It did not say that the Attorney-General had secured the agreement of the Solicitor-General to the form of the Direction. What the Explanatory Statement actually said was:

… the Attorney-General has consulted the Solicitor-General.

They are completely contradictory statements given that the Solicitor-General was never ever in any way informed about the instrument that was going to be tabled, the legal services direction, until it was tabled in May. Senator Brandis relies on a meeting of 30 November as his defence for saying he had consulted the Solicitor-General—

Senator Brandis interjecting —

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

Senator Brandis, you are continually interjecting. Senator Pratt has the right to be heard in silence. I ask all senators to respect Senator Pratt's right to be heard in silence

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

He points to the meeting on 30 November at which time no such instrument was contemplated or in existence. There was no obligation to consult under the act at the time. Senator Brandis has very conveniently pointed back to that meeting to try to construe that he had in some way consulted the Solicitor-General. The Solicitor-General, as the evidence before our committee has shown, was never ever informed of the Attorney-General's intention to issue the instrument. (Time expired)

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

These debates always benefit when senators have some facts to talk about. For Senator Pratt's benefit, I just want as simply as I can to go through the facts of the matter. Before I do, I just alert anyone who might be listening to this broadcast that we think Mr Gleeson did the right thing, the commendable thing, and resigned his position when he realised that his course of action over a period of time had made his continuance in that position untenable. I regret that happening. The Labor Party introduced this inquiry in the singular hope of somehow attacking the Attorney-General; what of course transpired was that they ended up destroying the career of their appointee to this position, Mr Gleeson.

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

They shot their own man.

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

They shot their own mate. For the record, this is what happened. Mr Gleeson was having difficulty with the number of briefs coming to him from all sources and it diverted him from concentrating on the very important issues that are sometimes sent to the Solicitor-General. These are my words and not anyone else's, I might say. Because of that, a meeting was arranged between the Attorney-General, the Solicitor-General and others to talk about this particular issue that Mr Gleeson had raised and how that could be best addressed. There was conversation then; there were subsequent conversations; there were email connections; and the guidance note was often referred to, including how it might be dealt with and how the whole situation could be done. Eventually, as the evidence shows—and this is not my interpretation; this is the evidence before the committee—the Attorney came to the view that a certain procedure should be adopted. That was included in the guidance note in very specific words—the exact same words that had been discussed with the Solicitor-General at that meeting in November and at other times, by electronic mail or otherwise. The exact same words were then put in a direction note to ensure that this whole process worked smoothly.

Although Mr Gleeson admitted he had been consulted on the guidance note, he said that he was never consulted on the direction. Well, the guidance note ended up with exactly the same words as in the direction, so I cannot quite understand that. Clearly the Attorney-General did consult, and, because of that, he has never misled the Senate. Suggestions to the contrary, and the headlines of the majority committee report, are simply untenable if you look at the evidence. The Attorney did consult. There is factual evidence of that. But, more importantly—and I want to emphasise this—any of you who have been ministers will know that ministers get an enormous amount of work through their doors, and most of the work comes with a brief from the department, the independent Public Service, and a recommendation to the minister. In this case the evidence clearly shows that the department did send the Attorney a brief and a recommendation in relation to this direction. You can read the words in our committee report, but they broadly speaking said this: 'Attorney, you have consulted sufficiently in accordance with the act, and we recommend that you endorse this direction.' So, all other things aside, the independent department were of the view that the appropriate consultation had been made, and they included that in their recommendation.

I conclude by again indicating my sadness that a Senate committee, the Legal and Constitutional Affairs References Committee, with a Labor-Greens majority, has brought the whole Senate process into disrepute. Once upon a time, Senate committees' reports were treated with some respect and were quite persuasive in directing government actions. Nowadays, unfortunately, because this particular committee does nothing but political witch-hunts, it has become an embarrassment to the Senate committee process.

Malarndirri McCarthy (NT, Australian Labor Party) Share this | Link to this | Hansard source

We have to remember here in the Senate that we are speaking about a man who has resigned from the highest office in Australia—

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

Terrible! Shocking!

Malarndirri McCarthy (NT, Australian Labor Party) Share this | Link to this | Hansard source

and it is a very serious issue—

Senator Brandis interjecting—

certainly not something that should be made into a joke, spoken about as though—

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

Senator Bilyk?

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Once again, Madam Deputy President, Senator Brandis is interjecting. He sat very quietly through Senator Macdonald's contribution, and I think it would be very nice if he could do the same now, especially as you have already made a request that he do so.

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

Thank you, Senator Bilyk. Senator McCarthy.

Malarndirri McCarthy (NT, Australian Labor Party) Share this | Link to this | Hansard source

This is such a serious matter. A man, his family, his whole life, have been absolutely—no doubt—devastated by the experience that he went through in the committee hearings. It is so important that we maintain the respect of this Senate, this chamber, and give confidence to the people of Australia that, when examinations are taking place, they are being done in a manner that is respectful of those giving evidence. Clearly the relationship between the previous Solicitor-General and the Attorney-General did not have to get to where it did.

This whole situation involved the standing of two of our highest law officers. It involved Justin Gleeson, who had served in the role of Solicitor-General since 2013—a man with an impeccable legal reputation, an honourable man, forced to resign. This issue should not be the butt of jokes, certainly not from the Attorney-General. This issue is also about the independence of the office of the Solicitor-General, its freedom from political interference. As a former Solicitor General, Dr Gavan Griffith QC, said in his submission to the committee, he regards the direction given by the Attorney-General to the Solicitor-General as 'effecting the practical destruction of the independent office of second law officer' and leading to 'perceptions as to the integrity of the continuing office'. He said, 'The uncomfortable image of a dog on a lead comes to mind.' A number of past solicitors-general support the interpretation of the Solicitor-General, as do other eminent senior barristers who practise in the field of Australian public law.

As the report says, the dispute between the Attorney-General and the Solicitor-General has raised serious questions about the Attorney-General's compliance with the rule of law in Australia. The committee found it was improper for the Attorney-General to have issued the Legal Services Amendment (Solicitor-General Opinions) Direction 2016, but the Attorney-General refuses to concede he has damaged and in fact threatened the rule of law in Australia. When I read the dissenting report and I listen to the members opposite, I know the reputation of an impeccable man has been severely tarnished. When you look at page 39 in the dissenting report, the reference to Mr Gleeson at 1.47 certainly does not give an indication of confidence that this dissenting report is anything but a tarnishing of his reputation. It is important to remind the Senate, including the members present—to give confidence to the Australian people—that all inquiries that take place are incredibly important and need to be dealt with respectfully, in particular by all the senators involved.

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

'If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't.' So says Alice. I think in Senator Pratt's contribution today we had a bit of a glimpse into the wonder that Alice in Wonderland brings readers, because some of us were a little delighted but predominantly puzzled by her contribution today. Senator Pratt, of course, is a colleague from Western Australia, so I do not mean that disrespectfully, but we need to be very clear about the issues of fact that we are being asked to reflect on as a result of Senator Pratt's contribution during question time and, importantly, what the other half of the story, the report prepared by government senators for that Senate Legal and Constitutional Affairs References Committee inquiry, had to say.

Apologies to those people who might be listening to the Senate broadcast today, because this is perhaps one of the drier areas of public discourse we have had in the last few weeks. We could be talking about jobs and economic growth, or we could be talking about economic development across my state of Western Australia, but, no, we have found ourselves landed in what is yesterday's news—or last week or last month's news—to be totally frank.

There are a number of key questions that we have been asked to reflect on or respond to as a result of Senator Pratt's contribution today. If I could be so bold as to summarise them, they fall into six brief elements. So, for those people who have not been watching this debate over the last few months, I thought I would take the liberty of trying to turn it into a layman's understanding of what some of the issues are. Firstly, we are being asked to consider: what is the government's response to the Senate Legal and Constitutional Affairs References Committee report? I will come to that a little later in my contribution. Secondly, we are being asked to reflect on what was meant by the word 'consultation' or the activity of consultation with the Solicitor-General on the proposed amendments. Thirdly, we are being asked to reflect on what it meant to withdraw the amendment to the direction or about its impact on the rule of law. Fourthly, we are being asked to reflect on the significance of the resignation of the Solicitor-General. Fifthly, we are being asked to reflect on whether or not the government has sought legal advice and from whom about previous or upcoming legislation. Finally, there is the question of whether or not approval of requests for the Solicitor-General to give opinions on questions of law was actually given.

Let me start with the first point. Senator Macdonald's contribution is particularly relevant here. Senator Macdonald is a well-experienced member of the Australian Senate. I remember I first came here in 1990 as a mere researcher to a former senator and Senator Macdonald was already here as a senator. So the first point is that he brings tremendous experience to these sorts of issues. Secondly, he is, of course, a lawyer himself, so he is accomplished in matters of the law. Thirdly, and perhaps most significantly, Senator Macdonald is very seasoned at being able to sniff out attempts at political partisanship and attempts to muddy the reputation not just of the government but of senior members of the government like Senator Brandis, who is, of course, the Attorney-General.

It is very clear that our view is that the inquiry was set up as a political witch-hunt by Labor, ably supported yet again by the Australian Greens. What is the evidence for that? Senator Pratt gave it away in her questions during question time. The very clear evidence for that is the finding of the majority report, from which Senator Pratt quoted during question time. This has been a blatant political stunt from the beginning. It got amplified and ventilated and was there for the world to see during the inquiry hearing process, which was televised so that people could see the political witch-hunt for themselves.

These are serious matters, whichever side of the debate you might find yourself on, so the constant references to Alice in Wonderland, as noble and as important as that Lewis Carroll piece of work is, do sort of demean your argument. If you did believe that these issues are as significant as Labor and the Greens say they are, you would not demean your work, your inquiry and the arguments you are trying to run by— (Time expired)

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Today we have heard more spin, more buck-passing and more confusion about what exactly has happened with the Gleeson-Minister Brandis affair. It is clear that not everything is going well for the Attorney-General, Senator Brandis. His colleagues have rapidly lost faith in him and they are desperately scrambling to find a way to get him out of the country, whether that is to London or to Washington—I think he would like to go to Italy as well, but who knows where he will end up? Until that time, they have to defend him in this place or suffer listening to him trying to defend himself.

Whether it is funding for the arts or the performance of his role as Attorney-General, it is clear that the Attorney-General's arbitrary decisions cause problems. It is a little like the Midas touch in reverse. We all know incompetence and lack of consultation in the arts portfolio saw his removal from that area. Yesterday, the Legal and Constitutional Affairs References Committee handed down an important report into the nature and scope of the consultations prior to the making of the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. Despite what those opposite claim about the nature of this inquiry and the conspiracy they claim has occurred, this inquiry was held at the behest of and reflecting the will of this chamber. The committee delivered a scathing judgement of Senator Brandis, the first law officer of this country, for endangering the rule of law in Australia. On 4 May 2016, the Attorney-General tabled the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 in the Senate. This direction limited Mr Gleeson's role severely. The Attorney-General has repeatedly said that he consulted the Solicitor-General regarding the direction. The majority committee was of a differing view. The committee found that the Attorney-General acted improperly in his introduction of the direction. The committee also found that Minister Brandis misled the Senate by stating he had, in fact, consulted the Solicitor-General on the charges. It is clear from the evidence that the Attorney-General took no substantive consultation about the nature of the change to the Solicitor-General's work prior to amending the direction. Furthermore, the committee's view is that the Attorney-General has misled the parliament by stating in an explanatory statement that consultation with the Solicitor-General had, in fact, taken place.

The Senate must take account of these facts, just as the committee has, when considering the ramifications of this report. For the statement to be true that the Attorney-General had consulted the Solicitor-General, the Attorney-General would have needed, at a minimum, to advise the Solicitor-General of his intention to introduce a new instrument and provide him an opportunity to comment on its contents. It is clear, that the Attorney-General had not. It seems like the Attorney-General's definition of consultation is not the same as everybody else's. That reminds of the time in estimates the Attorney lectured me that 'opinionist' was not a word. So, of course, I had to quote the Collins Dictionary definition to him to explain to him that it was. Although I know that he thinks he knows everything, he actually does not. There was no apology or acknowledgement that he was wrong.

I would like to remind people listening that the committee made three important recommendations: that the Senate disallow the amendment to the direction of the Attorney-General, withdraw it immediately and that guidance notes 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; and that the Senate censure the Attorney-General for misleading the parliament and failing to discharge his duties as Attorney-General appropriately. That is a very serious recommendation that any committee to make. They do not do that off the top of their hats. They make those recommendations after considered opinion. So, the fact that those on the other side want to claim that this is a conspiracy—we expect that to come from them, but it is a very serious issue.

From the report, it is clear that the Attorney is definitely out of his depth. Whether it is due to arrogance, his unwillingness to consult with others or his high opinion of his own opinion is irrelevant. Senator Brandis's incompetence cannot be allowed to compromise the role of a new Solicitor-General and the continued unfettered operation of the rule of law in this country. The Prime Minister, as he knows full well, must sack the Attorney-General before he has a chance to do any more damage.

I will finish on a couple of lines from 'King Midas in reverse' by The Hollies, which sadly reminds me of the Attorney-General: 'He's not the man to hold your trust, everything he touches turns to dust … he's King Midas with a curse, he's King Midas in reverse.'

Question agreed to.