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

This disallowance before us today in this place is a matter of great gravity. In May this year the Attorney-General, Senator Brandis, tabled the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 in this place. The direction meant that no-one could refer a question of law to the Solicitor-General without the consent of the Attorney-General—not his most senior ministers, not even the Prime Minister. That was the intent of the legal services direction which the Attorney-General implemented. It was an extraordinary act, an act that put at risk the integrity of our legal system, and, indeed, I think, the integrity of this parliament. We have seen in this direction the undermining of the separation of government and the independence of our legal system. It is clear to us that Senator Brandis implemented the legal services direction in an attempt to undermine the independence of a statutory officer, the Solicitor-General, and he then went on to mislead the parliament about his conduct. The Attorney-General of our nation—the most senior law officer of our nation—did not comply with his obligation to consult on this matter.

After the damning inquiry into the legal services amendment direction, Senator Brandis went about to withdraw his direction. He did so in accordance with the recommendations of the committee report, I guess to avoid the embarrassment of having it disallowed in this chamber. And while I am pleased with the fact that Senator Brandis has complied with the recommendations of the committee report, the way he went about it in a somewhat sneaky manner without telling anybody demonstrates again his disregard for consultation, as he has never sort to explain his actions to this place. Despite the fact that the legal services direction has been withdrawn, it is critically important that this matter still be disallowed by the Senate, because the Senate must express its view and opinion on the matter of law at the heart of this matter, in terms of how opinions are sought from the Solicitor-General, so that it cannot happen again. It is why this disallowance is proceeding today.

If you look at the very problematic things about the legal services direction as it was tabled, there are some very significant issues with it that really demonstrate the Attorney-General's poor judgement. I refer to some of the evidence that Gavan Griffith QC gave to our committee. He was, in fact, the Solicitor-General for some 14 years from 1984 to 1997 under both Labor and Liberal governments. He construed the direction was in fact ultra vires and of no effect as a lawful direction in terms of its capacity to direct the Solicitor-General. Notwithstanding this, the intent of the direction is to withhold the Solicitor-General from being able to provide advice. Again, the direction is wrong on the basis of law.

Notwithstanding the fact that the direction is wrong on the basis of law, both Gavan Griffith and Ms Appleby talked to the committee about the chilling effect of this direction in creating roadblocks to appropriate, authoritative, welcome or unwelcome advice from the peak level of the second law officer, who, within the Commonwealth, is the leading counsel to the Commonwealth. In other words, it would keep government departments and agencies from seeking the proper advice through the proper channels of government.

Gavan Griffiths went on to say that one of the effects of the legal services direction is that it creates a propensity for government to shop around for advice. Indeed, this is what our current Attorney-General has done on a number of significant matters. This has also been highlighted in evidence to our committee. Gavan Griffiths gave some examples of that.

Lastly, the particularly problematic nature of this legal services direction and why it must be disallowed is that it highlights how the differences between the Attorney-General and the Solicitor-General should not be resolved during their continued incumbency by what Gavan Griffiths calls:

… inappropriate and destructive legislative or administrative measures being imposed which have the effect of destroying the independent office of SG—

that is, the Solicitor-General. These are incredibly important reasons as to why this place must look to supporting this disallowance so that the practice of the Attorney-General can no longer continue to pollute the way in which advice is sought from the Solicitor-General.

I want to highlight some other issues to do with the conduct of the Attorney-General when it comes to this disallowance. The failure of the Attorney-General to consult the Solicitor-General is one of the reasons why the incredibly problematic and wrong nature of the legal services direction was never brought to the attention of this place. It was never highlighted. That meant that the problems with the legal services direction never saw the light of day until it was implemented, which is an incredibly damning thing. The Attorney-General's conduct and his failure to meet his obligation to consult is why we have found ourselves in this place discussing this, as it would have been pointed out that the legal services direction is wrong in law and unimplementable.

But these kinds of actions are entirely consistent with a great many other issues with recent actions of our Attorney-General. We have a claim from the Attorney-General that he consulted the Solicitor-General. It is a blatant falsehood. This consultation never, ever occurred. Indeed, the Attorney-General made what are very clearly false and misleading statements to this place. For the statement that the Attorney-General had consulted the Solicitor-General to be true, the Attorney-General would at a minimum have needed to advise the Solicitor-General of his intention to introduce a new instrument and provide him with the opportunity to comment on its content. At no stage did the Attorney-General do this. Indeed, the only person who Senator Brandis consulted with in large part, it appears, was himself.

Senator Brandis has been caught out on this issue—and not for the first time—breaching one of the most fundamental requirements of our democratic system of government, and that is the principle of ministerial accountability to the parliament. He failed in this instance and in many other instances to meet the fundamental obligations of his office as our nation's Attorney-General—the protection of the independence of our courts and senior statutory office holders and the promotion of proper standards of conduct and the very basic fundamentals of ethical standards and integrity. You can see in this statement that I made that when you reflect on proper conduct he has failed to consult and he has undermined the rule of law in his relationship with this very important statutory office. And he continues to deceive and mislead this place.

He displays, I think, a glittering indifference to the truth of this matter. It is a very serious matter and one that the government and the Senate must also take very seriously. The Senate cannot and should not accept what Senator Brandis has put forward as an explanation. He has failed to meet his most basic responsibilities time and time again, and I think he is behaving in a way that demonstrates complete arrogance and disrespect for this place.

We should not allow this to happen again. Again, that brings me specifically to this disallowance motion. While the direction has indeed been withdrawn, it is important that we prevent this from happening again. It is important that we prevent this from happening again, because the Attorney-General has form on this matter. We know that he tried to interfere with the practice of the independence of the Solicitor-General and we must ensure that this cannot happen again.

While we cannot trust Senator Brandis to act with integrity on this issue, we therefore must take precautions to ensure that the integrity and the independence of our legal system is not further undermined by his actions. He does not have a great track record on these issues, and I would like to remind us of Senator Brandis's other poor pieces of judgement.

This is not the first time we have seen sneaky and misleading tactics from the Attorney-General. I will only have time today to outline just a few of them. Recently, the Attorney-General misled the Senate by claiming that Australia had the highest rate of economic growth of any G20 nation. This was indeed a falsehood. He claimed to have consulted the Aboriginal and Torres Strait Islander Justice Commissioner, Mick Gooda, before establishing the Don Dale royal commission, when no such consultation had occurred. He failed to consult the Solicitor-General about amendments to citizenship legislation concerning foreign fighters, then claimed publicly that he had consulted—yet again another falsehood: a glittering indifference to the truth. He is also refusing to answer important questions about this conduct.

He refused to answer questions in this place about his appointment of a Liberal donor and lawyer for a family member to the Administrative Appeals Tribunal. Again, I think this is disgraceful. He has breached cabinet rules by disclosing publicly the contents of confidential cabinet debate on national security legislation.

In estimates in May this year Senator Brandis gave evidence that his correspondence with the Lindt Cafe siege terrorist, Man Monis, had been provided to the Thawley-Comley review. He and foreign minister, Julie Bishop, followed up on this, saying that the review had assessed the Attorney's handling of that correspondence and found it did not give rise to any adverse findings. But, senators and Madam Acting Deputy President—guess what? This is another untruth from the Attorney-General. The review had never assessed that correspondence from Senator Brandis because Senator Brandis had not even provided that review with his correspondence. Can you believe it? Unfortunately, I can.

In 2002, Senator Brandis claimed that the Navy was in possession of statements which proved that an asylum seeker aboard an Indonesian vessel, the Sinar Bontang had tried to strangle his daughter. He claimed that statements were made by the crew of the Navy vessel HMAS Arunta, which intercepted the Indonesian vessel. However, what we know is that maritime commander Rear Admiral Geoff Smith later discredited Senator Brandis's claims, saying that no such statements existed. This did not stop Senator Brandis from peddling this story in the press gallery to get a front page in The Australianagain, a glittering indifference to the truth from Senator Brandis.

Senator Brandis, our Attorney-General, has also been interfering in police investigations. He has attempted to interfere in the conduct of an investigation into the Health Services Union. This included calling the New South Wales Attorney-General to pressure him into having the DPP investigate the matter and calling the New South Wales police minister to pressure him into having the police investigate and charge people as well. He also arranged for the New South Wales police minister to call and apply pressure to the police commissioner. All of those people should and have been properly prosecuted. However, it is not the place of our Attorney-General to interfere in those matters in terms of them needing to be politically independent police and investigative matters.

We also have examples of prejudice against international court cases. We know that in 2013 Senator Brandis, our Attorney-General, authorised an ASIO raid on the offices of a lawyer representing East Timor, and this happened just days before an arbitration with Australia in relation to a dispute over oil and gas reserves in the Timor Sea was due to commence at the International Court of Justice. The International Court of Justice subsequently ordered Australia to stop spying on East Timor and seal all the documents that had been seized in the raid to avoid prejudice to the arbitration. At the time, shadow Attorney-General Mark Dreyfus said that the international court orders damaged Australia's international reputation and were the direct result of Senator Brandis's inept handling of this matter.

It is these kinds of interfering acts that truly demonstrate why we cannot allow the prospect of another legal services direction to arise. We have here an Attorney-General who is completely out of touch with the standards that are expected from him in this role. He has misled the Senate and acted, I believe, without integrity. He has displayed a glittering indifference to the truth, not only on this matter but on a great many other important matters. He has demonstrated over and over again that he is not fit to hold his high office. It is mind blowing to me, and unacceptable, that Senator Brandis has been allowed to remain in his position. However, that is not the matter before us today. The matter before us is the disallowance, and I commend the disallowance to the Senate.

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

I too rise to speak about this disallowance motion on the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. As I said previously in this place, I think the inquiry that was conducted into this matter and the majority report shames all of us in this chamber. Despite what those opposite have now said, I think the facts are very simple. This inquiry was established by Labor and the Greens to king-hit the Attorney-General. Instead, they knocked out the Solicitor-General. After the Solicitor-General unexpectedly fessed up in the hearing that he had breached the caretaker conventions and had a secret conversation with the shadow Attorney-General—and very likely in the process, I believe, communicated privileged information to the shadow Attorney-General during an election campaign during the caretaker period—the Solicitor-General had no choice but to resign when he did. As a barrister, he must have known it was a breach of professional conduct and professional ethics to have an ex parte discussion and breach client privilege so egregiously. Consequently, as Solicitor-General, a key legal adviser to this government, it would be impossible for any future minister—either the Attorney-General or the Prime Minister or any other minister or even the Governor-General—to have confidence in him any more if he was so willing to breach his professional and ethical duties.

The shadow Attorney-General, a previous Attorney-General and a barrister himself, knew far better than to contact the Solicitor-General during caretaker period. The Solicitor-General certainly knew better than to take the shadow Attorney-General's call and divulge the detail about advice he had given, and his opinion on that advice he had given, the Attorney-General.

Any objective analysis of the Solicitor-General's testimony will find it absolutely riddled with contradictions and, quite frankly, highly unwarranted hubris. I am not surprised that he did not want to answer a single one of my questions on notice—and not a single question—but it was not unreasonable of me to ask these questions. There were 34—not 120—questions very carefully crafted by myself that were explicitly linked to his testimony and in particular his bombshell revelations that he had so secretly and carelessly breached caretaker conventions. I ask all in this place: since when has it been discretionary for any witness in any inquiry to flatly refuse to answer any of question of any senator in this place? The excuse he gave was that 'There were too many questions' or 'I sort of kind of answered some of them so, hey, I'm not going to answer any of your questions at all.' If I had been in his position and had breached caretaker conventions I do not think I would have wanted to answer any senator's questions on that. But that is not the point.

Those opposite, as well as the Labor and Greens members of this inquiry know full well that is not the point. They set up this inquiry, as I said, to king-hit the Attorney-General and instead they knocked out the Solicitor-General. That is their bag, their shame and their disgrace that they have done this.

So two issues should be of great concern to all in this place about the conduct of those opposite and of the Solicitor-General. First of all, as I have said, the contempt the Solicitor-General of this nation showed not just myself but to every senator in this place by refusing to answer any question on notice that flowed directly from the surprise testimony. I am sure none of the Greens or the Labor MPs would have had any idea that he was about to drop the bombshell that he did—that he had breached caretaker conventions and, I argue, had provided privileged information to the shadow Attorney-General. That is the first thing, but the second thing, which should be a great concern to all in this chamber, is the actions of those opposite on this committee. That the committee accepted the Solicitor-General's refusal to answer a single question on notice that flowed directly and very clearly from his bombshell evidence at that inquiry. The majority members' decision is a shocking precedent to set for all future Senate committee inquiries. What? Somebody does not care to give evidence because it is a little bit uncomfortable and so they just tell the committee, 'Na, I don't really feel like answering because it's going to make me look bad.' That is an appalling precedent for this place. As I said, I understand why the majority of committee members did not want these questions answered by the Solicitor-General clearly and that was to protect the shadow Attorney-General from further scrutiny and to protect the Solicitor-General.

Well, too late; it was too late when the shadow Attorney-General had that discussion with the Solicitor-General and when the Solicitor-General failed to disclose that conversation to the secretary of the Attorney-General's Department or to the Attorney-General himself. That horse had well and truly already bolted. It was too late when Labor and Green committee members failed to do any due diligence with the shadow Attorney-General about whether there might be any little surprises that the Solicitor-General may have for them in this inquiry.

The intention of this inquiry was also very clear when, at the beginning of the hearing with the Solicitor-General and the Attorney-General, the coalition members moved that it be heard in camera to preserve the dignity of both the Attorney-General and the Office of the Solicitor-General. Had we gone in camera, their intent of turning it into a political horse trial—pony show, whatever—would have failed.

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

What exactly are you saying?

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

It was a long night, last night! It was a very long night. Into a show trial. I think that is what I was trying to say.

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

A show pony!

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

A show pony. Thank you very much, Senator McKim. Instead of having it heard in camera, where this bombshell advice would have been heard, they turned it into this show trial. Labor did what they do best. They shot the Solicitor-General by mistake. And what do they do when they go onto the political ropes? They defend by attack. And the facts be dammed. Not only did they ignore the facts that we heard clearly and that are clearly there for anybody to see—through the Hansard transcripts of this hearing, and through the dissenting report—they shot the Solicitor-General and went on the attack. Facts be dammed. Then we had the chair of the committee, when presenting the committee report, come in here and quote extensively from Alice in Wonderland. As if that was not enough, she then quoted from 'Humpty Dumpty'. No amount of 'Humpty Dumpty' or recitations of Alice in Wonderland can hide the facts. Any member of the public or the media can go online and into Hansard and have a look at the facts.

The facts are these. On 13—that is, 13—occasions from June 2015 to October 2016 the Attorney-General and the secretary of the Attorney-General's Department consulted—discussed, reviewed, whatever you like to call it—with the Solicitor-General. You might call a meeting a 'discussion' but that is consultation. There is absolutely no doubt that consultation occurred. By my counting—this is all on the public record—there were 13 occasions of consultation between the parties. This fact—again, it is on the public record—was conclusively confirmed by the secretary himself of the Attorney-General's Department. He confirmed that this consultation had occurred, and it was the consultation that was legally required to be held.

What occurred during the inquiry was the comprehensive unravelling of Mr Gleeson, arising from the admissions he made of inappropriate conduct. Not only did he disclose that he had had this highly inappropriate contact with the shadow Attorney-General during caretaker provisions, on advice he had given the Attorney-General, but also he disclosed on the public record information regarding advice he had also provided to the government—not just to the government but to the Prime Minister and to the Australian Government Solicitor. He may have shadow-boxed around whether he still considered himself a barrister, but he still uses the post-nominal SC and is providing advice to this government. On any review of professional political standards for barristers, he breached those guidelines. The Solicitor-General of this country did so not once, not twice, not three times but at least four times, by my count, to this inquiry. He breached his professional obligations.

In Mr Gleeson's submission to the inquiry which, again, is on the public record, he released confidential emails with the classification of 'protected'. Even the most junior of public servants knows that you do not release protected documents in that way. From any ordinary legal practitioner, whether a barrister or a solicitor, such behaviour may well constitute professional misconduct. However, the Solicitor-General told the committee—again, on the public record—'Under the Law Officers Act, I do not practice as a barrister.' Really?

Further, the Solicitor-General was asked whether he agreed with the assertion by former Attorney-General Mark Dreyfus QC that the Solicitor-General is 'just a barrister'. So this is former Attorney-General Mark Dreyfus QC saying that the Solicitor-General is 'just a barrister'. The Solicitor-General refuted that; he said, no, that was not the case. But, despite that, he still happily uses the postnominal SC.

In the Solicitor-General's correspondence to the committee, the Solicitor-General engaged in what he called 'voluntary cooperation' with the committee. In other words, he was not compelled to give any evidence, nor was he compelled to produce any documents. But, despite this, he appears to have produced documents, answered questions—and neglected to claim legal privilege in respect of certain information—without first consulting the government, his clients.

The Solicitor-General also confirmed in his evidence to the committee that—as I have talked about—he accepted a phone call from shadow Attorney-General Mr Mark Dreyfus during the caretaker period, some time in June 2016. He could not recall exactly when it was because, apparently, as a Solicitor-General of this country and as a barrister, he does not keep notes. I find that quite extraordinary. He must be the only barrister in Australia who does not keep detailed notes, particularly of conversations he has with the shadow Attorney-General of this country.

So what did he tell the committee about why he took the call? You would have thought that any Public Servant, if they had had a call from a shadow minister, would have said, 'I'm sorry. I can't take your call. Ring the secretary of the department. Ring the Attorney-General or another minister.' Instead, he said this to the committee: 'It was my duty to tell Mr Dreyfus what I did.' And, if you want to check, it is on page 11 of the Hansard.

Then a bit later, on page 16 of the Hansard, he then agreed that it was not actually within his role or duty to consult with the shadow Attorney-General. And he said this—again, anyone can check this on page 16 of the Hansard.

The appropriate course in the caretaker period was for the secretary of the Attorney-General's Department and the Attorney-General to refer to the shadow Attorney-General that matter.

Well, that was hardly a revelation—but, again, quite contradictory to his first statement.

Following these revelations—and actually having a look at a lot of the inconsistencies in the Solicitor-General's testimony—I provided questions on notice to Mr Gleeson to address these and many others inconsistencies. I very carefully referenced every single question to the testimony he gave on that day in Hansard. And I very clearly gave him the opportunity to expand on that new information that he had provided at the hearing. Again, it is a common practice for all senators in this place to ask questions on notice when you get new information in an inquiry.

Unfortunately—and again, as I said, I think this gives great shame or should at least be cause for concern for all in this chamber—when the Solicitor-General came back and said, 'Well, I'm not really going to answer any of these questions. I sort of kind of answered some of them. There are too many questions. It's all a bit of a bother really', what did the chair of the committee say? The chair said:

The committee has resolved it will not insist upon answers, given that many of the questions—

'many', not all—

cover ground that has been discussed … and as a result of the large number of questions which were asked.

Since when—34 questions—is it up for the committee chair and the majority on the committee to tell another senator that there are too many questions or that some of them have been answered so, 'Hey, we won't get them to answer any of the questions'? It is absolutely inexcusable and outrageous to exclude the Solicitor-General and to give him a leave pass from answering any questions.

As I said, if I were the Solicitor-General and one of you had put those questions to me, I would not have wanted to answer them either, because they are really hard questions. But that is no excuse for a committee of this place to not insist on some or all of the questions being answered in at least some way. Mr Gleeson, as the former Solicitor-General, is accountable, like we all are in this place. He is a public official, he is a member of the executive government and he is paid by the Australian taxpayer.

This has set a very dangerous precedent. If followed more widely, it could result in questions being vetted by any committee, any committee chair, and it could result in those being questioned simply choosing not to answer because, 'Well, there's already a large amount of questions and I kind of don't want to answer them,' or 'They're really going to put me in a bad light, so I don't think I'm going to answer the questions today.' Again, that is completely and utterly outrageous.

The absent chair of this committee sat there and told us at great length in this very chamber that Humpty Dumpty may have sat on the wall—but I have to say that, at the hand of Labor, it was the Solicitor-General who fell off the wall. All of us in this place deserve much, much better than this. To those listening to this broadcast who have an interest in this: please go and search Hansard and have a look at the transcripts of exactly what was said; have a look at the majority report and all the fabulous stories about Humpty Dumpty and Alice in Wonderland. But also have a look at the dissenting report and at the attachments and at the facts contained in there. I challenge any Australian to make their own mind up.

There were 13 lots of contact between them. The whole idea that this directive is somehow trying to undermine the Solicitor-General is completely and utterly false. I would ask any journalist or any member of the public who is listening to go and have a look at section 12 of the Law Officers Act, which the Solicitor-General quoted a lot. It says that advice has to go through the Attorney-General. This great conspiracy of a directive was no such thing. Section 12 is a very short section of the act which provides the Solicitor-General with guidance on his role—his advisory role and his counsel role. Under the act, his advisory role is very clearly at the direction of the Attorney-General of this country. This great conspiracy was developed by those opposite to try to king hit the Attorney-General—you misfired and you knocked out the Solicitor-General. Doing that should be a cause of some great shame to you all, because there was no conspiracy. The Law Officers Act is very clear. The directive is almost word for word with the Law Officers Act. Shame on you.

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

The Australian Greens will be supporting this disallowance motion for a range of reasons, primarily because the legal services direction is contrary to the rule of law in that it seeks to set the Attorney-General up as a gatekeeper to the Solicitor-General and because the Attorney-General misled the Senate in the material he provided to this chamber with respect to the legal services direction. It is worth pointing out that the Attorney-General is a serial misleader of the Commonwealth parliament. He misleads on every day that he is asked about migration matters in this place when he claims that not one person has died at sea under Operation Sovereign Borders, when he cannot possibly make that claim. He misleads when he claims that no children are currently in detention, when in fact there are children in detention on Nauru as we have this debate today. Of course, he misleads the Senate when he claims to have consulted with the Solicitor-General on the legal services direction, when in fact the Solicitor-General himself made it very clear in his evidence to the Legal and Constitutional Affairs References Committee that he had not been consulted. So this is an Attorney-General who is renowned for his appalling failures and lapses of judgement, and this legal services direction constitutes yet another appalling failure of judgement.