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

We have a situation where the Attorney-General has sought to establish himself as a gatekeeper to the Solicitor-General, and, extraordinarily, this would extend to such circumstances as the Governor-General seeking legal advice from the Solicitor-General. The Governor-General could seek legal advice from the Solicitor-General in a range of areas and for a range of reasons, but it is not difficult for us to apply our minds and think about some of the circumstances in which the Governor-General would seek advice from the Solicitor-General. Those could include, but not be limited to, such circumstances as the Australian people electing a balance of power House of Representatives, for example. A situation where the Governor-General needs to go through an Attorney-General to seek advice from the Solicitor-General is quite extraordinary when you think about the implications that may exist if in fact there is no party elected to a majority in the House of Assembly—sorry, the House of Representatives. I was back in Tasmania there briefly! Seeking to establish himself as a gatekeeper to the Solicitor-General is no doubt part of the reasons that the Attorney tabled this Legal Services Direction into the Senate, and it is part of the reason that the Greens support this disallowance motion that we are currently debating.

It is worth pointing out that this Legal Services Direction was tabled on 4 May this year, which was the last sitting day before the election was ultimately called. This was a last-minute attempt by the Attorney-General, presumably in the full knowledge that an election was about to be called, to establish himself as a gatekeeper to the Solicitor-General. And of course that matter—that is, the intent to establish himself as a gatekeeper—was the subject of a number of submissions and a number of pieces of evidence to the committee that inquired into this matter and that I was a member of. It is worth quoting Associate Professor Gabrielle Appleby from the University of New South Wales, who is the author of The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest.Associate Professor Appleby stated that 'there could be a chilling effect on ministers wanting the Solicitor-General's advice' if they have to get the Attorney's approval and signature to do so. She also said it:

… is an assertion of control by the Attorney-General over the Solicitor-General for no immediately perceptible reason.

Other expert opinions have been offered to the committee, including one from former Queensland Solicitor-General Mr Walter Sofronoff QC, who went so far as to say that what the Attorney-General has done is invalid. He said, 'His reliance on the Judiciary Act 1903 is misconceived and wrong in law.'

We also heard from Professor Appleby in the evidence that she provided to the committee:

The issue of the direction, in my view, demonstrates a serious incursion by the Attorney-General into the Solicitor-General's role, and the process that preceded the issue of the direction demonstrates a lack of trust and a lack of respect by the Attorney-General for the office of the Solicitor-General, particularly in respect of the function, the status and the independence of that office. This raises, in my mind, serious concerns for the rule of law.

So we have Associate Professor Appleby, who is widely acknowledged as one of the foremost experts, if not the foremost expert, in the country on the role of solicitors-general, saying that in her mind the Legal Services Direction raises serious concerns for the rule of law.

We have heard from former Solicitor-General Dr Gavan Griffith QC, who was very critical of the Legal Services Direction and stated that he regards it as 'effecting the practical destruction of the independent office of the second law officer'. I will reflect there personally that by referring to the second law officer he is referring to the Solicitor-General or the office of the Solicitor-General. Dr Griffith also stated that the Legal Services Direction led to:

… perceptions as to the integrity of the continuing office. The uncomfortable image of a dog on a lead comes to mind.

So we have here a former Solicitor-General calling to mind what he describes as the uncomfortable image of a dog on a lead. I think that is useful imagery for the Senate in regard to this direction, because it very graphically outlines the effect of this direction and the fact that undoubtedly it seeks to position the Attorney-General as a gatekeeper to the services of the Solicitor-General. Dr Griffith also commented on the legality of the direction and said, 'The direction is void and of no legal effect.' His argument was that the legislation providing the basis for the direction was not intended to apply to work undertaken by the Solicitor-General. According to Dr Griffith, it is untenable to argue that the reach of section 55ZF of the Judiciary Act 1903 extends to the Solicitor-General.

We come to the evidence of the Solicitor-General himself as presented at the inquiry, and he said:

… it is critically important that persons such as the Governor-General, Prime Minister and officers of Parliament are able to approach the Solicitor-General for advice in an uninhibited fashion and in respect to questions framed by them and not by others. They should be able to do so not just where litigation is before a court or anticipated but whenever it is necessary to ensure the law, including the Constitution, is complied with.'

And I can place on the record that the Australian Greens agree entirely with that comment from the former Solicitor-General, Mr Justin Gleeson.

The direction clearly, in the view of the Greens, undermines the role of Solicitor-General insofar as it permits an Attorney-General to deny access to a Solicitor-General and has the potential to discourage people and bodies from seeking the Solicitor-General's advice. That is one of our core concerns with this legal services direction. It is certainly not apparent that the direction is supported by section 55ZF of the Judiciary Act, because the legislative history and the context of 55ZF indicate that it was not intended to empower the Attorney-General to make directions with respect to the Solicitor-General.

While the legality of this instrument is certainly in question, what is not in question is the Attorney's claim that he consulted the Solicitor-General on the matter. The explanatory memorandum to this direction clearly stated:

As the Direction relates to the process for referring a question of law to the Solicitor-General, the Attorney-General has consulted the Solicitor-General.

As we heard in evidence to the committee, the Attorney relied on a fanciful definition of 'consultation'. At the end of the day, the dispute over whether or not the Attorney had actually consulted pivoted on what a reasonable interpretation is of what the word 'consulted' or 'consultation' actually means. That has led us to the Humpty Dumpty quote that has been well aired in this chamber and was included in the committee's report.

In this place we are entitled to interpret words reasonably. In fact, we ought to interpret words reasonably. Even on the most favourable interpretation of the interaction between the Attorney and the Solicitor-General on this matter—the most favourable interpretation for the Attorney, that is, which is that it was raised, as supported by the note from his adviser that contained the initials 'LSD'—even on the most favourable interpretation, that, on no reasonable definition of the word 'consultation', actually satisfies what I think an average Australian would take to be a genuine consultation.

So even if you provide the Attorney-General with the benefit of the doubt—that the initials LSD actually did mean 'legal services direction', and I think we can all agree that that benefit should be given to the Attorney—that does not constitute a genuine consultation. The view of the Greens is to support Mr Gleeson's contention that he was not consulted on this matter. So we reject the Attorney's frankly pathetic argument that he did engage in a consultation, and the Australian Greens accept the view of Mr Gleeson that in fact he was not consulted.

It is worth noting that, when asked if any officers in the Attorney-General's Department had consulted him on the direction, the Solicitor-General replied:

… I said to them, 'In the period leading up to 4 May, you must have known about this direction. You were helping draft it. The Parliamentary Counsel knew about it. The Attorney knew about it. His staff knew about it. How on earth could it have been that the one person who needed to know was not told?'

I will repeat that. This is the former Solicitor-General, Mr Gleeson: 'How on earth could it have been that the one person who needed to know was not told?' That is a question that the Attorney has not adequately responded to and that the government has not adequately responded to.

From the Australian Greens' point of view, that is a question that demands an answer. How on earth could it have been that the Attorney-General knew what was going on; the Attorney-General's staff knew what was going on; the Attorney-General's Department knew what was going on—as Mr Gleeson points out, they were helping to draft it—Parliamentary Counsel knew what was going on, as they were drafting it; but nobody told the Solicitor-General? This is extraordinary stuff. It is further evidence that the Attorney was not treating the Solicitor-General with the respect that he deserved.

I say 'further' evidence because the letter that was provided to the Legal and Constitutional Affairs References Committee by both Mr Gleeson and the Attorney, which is a letter dated 12 November 2015 to the Attorney-General from Mr Gleeson, the then Solicitor-General, copied to Mr Moraitis, the Secretary of the Attorney-General's Department—we know from that letter that in fact there were issues with the way the Attorney was relating to the office of the Solicitor-General well before this matter arose. To substantiate that statement I rely on parts of that letter which make it clear that, in regard to a proposal from government to suspend or revoke a person's Australians citizenship, advice was initially sought and provided from the Solicitor-General's office; but then, as the Solicitor-General notes in that letter:

In March 2015, as I learned much later, the proposal was significantly revised within the Department of Immigration and Border Protection. For the next three months, the proponents of the Bill obtained various advices from the Australian Government Solicitor on the revised proposals. Almost by accident, the matter came to my attention again in June 2015. At that point, on request, I advised (SG No 10 of 2015)—

And there is a redaction that covers what the advice actually was. Then, subsequent to another iteration of advice from the Solicitor-General, which is SG No. 14 of 2015, the bill which was introduced into the parliament, as the Solicitor-General says in the letter:

… some 24 hours later reflected new changes that were made without seeking my further advice.

What this letter exposes, not only in regard to proposals to strip citizenship from certain people, but also in regard to a proposal relating to marriage equality, is that the Attorney-General, Senator Brandis, has been caught out shopping around for politically convenient legal advice. He has gone to the Australian Government Solicitor for constitutional advice. We know he has recently even gone to the private bar for constitutional advice on the Migration Act bill which is currently before this parliament. What is stopping the Attorney-General from going to the office which was established in part to provide constitutional advice for the government? It is open to us in this place to assume that Senator Brandis was shopping around for politically convenient legal advice because he did not believe he was going to get the advice he wanted from Mr Gleeson or Mr Gleeson's office, and therefore he went to the Australian Government Solicitor and—on more than one occasion, we believe—to the private bar. That is one of the problems we have that has been exposed by this entire sorry saga.

I only have a few moments left, and I want to say—to my great regret and the great regret of many—this saga has led to the resignation of Mr Gleeson. I believe Mr Gleeson did the right thing in resigning, because, as he said in his resignation letter, the relationship between him and the Attorney had become untenable. I believe that that is true and accurate. It had become untenable, but I want to place on the record that it became untenable because of the actions of the Attorney-General, not the actions of Mr Gleeson, the former Solicitor-General. The legal services direction disallowance motion that we are currently debating has the strong support of the Greens. This sorry saga has exposed the Attorney as not having the capacities to adequately fulfil that role. (Time expired)

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

I also rise to speak on this disallowance motion. Some may wonder why this is proceeding, since Senator Brandis, in a humiliating backdown about an hour before the original disallowance motion was to be debated, withdrew the legal services direction that has caused this entire dispute, because it became very clear to him that he was not going to be able to get it through. Nevertheless, Labor believe that it is important to put our views about this whole affair on the record, mostly because, in withdrawing his legal services direction, the Attorney-General said that he was in the process of appointing a new Solicitor-General—the Attorney's actions had, of course, resulted in the incumbent Solicitor-General resigning—and wanted to discuss this direction with the new Solicitor-General. Given it is still possible that we might see some kind of restriction on a Solicitor-General's independence in the future, we think it is important to get our views on the record.

I have spoken a number of times in this chamber about this very sorry affair between the Attorney-General and the Solicitor-General, and soon I will remind the Senate of the background to it and why it is that Labor had such concerns about this legal services direction. But before I do that, I think it is worth us reflecting for a little bit of time on the person who is central to this whole saga, the Attorney-General, Senator Brandis. This week, I think it is fair to say, has not been a good week even by the atrocious standards of this hapless Attorney-General. Earlier this week, in speaking about matters concerning the Attorney-General, I described him as one of the worst Attorneys-General Australia has ever seen. Within a matter of hours of my saying that, he had given us a whole series of more examples as to why he is Australia's worst Attorney-General. Not only is he Australia's worst Attorney-General, but he would appear to be Australia's worst political commentator on Sky News, given his behaviour this week, and he is certainly Australia's worst go-between with his own LNP colleagues back in Queensland.

This is the kind of week that the Attorney-General has had. A couple of days ago he was caught on film describing his own LNP state colleagues as 'very, very mediocre.' I can tell you, having served in the Queensland state parliament with a number of those people, that is one thing that the Attorney-General has said that I do agree with. In fact, I think he was probably being a little generous in calling them 'very, very mediocre,' which, I suppose, is exactly why they returned to the opposition benches in Queensland after only one hopeless and terrible term. Not only did Senator Brandis have this to say about the LNP in Queensland but also, within about an hour or so, one of his own federal colleagues the member for Ryan, Jane Prentice, was interviewed about this on Brisbane ABC Radio, and she invited the journalists to speak to the state LNP members of parliament and ask them what they thought of Senator Brandis' own performance. That is how well known it is, even within his own ranks, that he has become a massive liability for this government.

Senator Brandis, in those infamous comments, also talked about the likelihood that we would see some kind of demerger of the LNP in Queensland. Those of you who are not as familiar with Queensland political history as I am will know that the formation of the LNP in Queensland was the result of many years of internal bickering, and this was the way they were going to finally overcome things. Senator Brandis was an opponent of the formation of the LNP from day one, and it would appear that he is still an opponent of the LNP having been formed as a merged entity. But then Senator Canavan, the most senior Queensland National in this chamber, the next day contradicted Senator Brandis and actually supports the LNP, so we have division within the LNP in Queensland even on the fact of whether they should actually remain one party.

The Attorney-General's accident-prone nature is not reflected only in his administration of his own portfolio. He is, of course, the Leader of the Government in the Senate, and this week we saw the complete lack of authority that he has as the Leader of the Government in the Senate when we saw that he was unable to get National Party senators, including three cabinet ministers, to support the Prime Minister's own gun laws. I cannot remember the last time I have heard of ministers in a serving government refusing to support government legislation. Once upon a time that would have seen ministers resign from cabinet, but this Prime Minister has so little authority over his cabinet—

Senator Nash interjecting—

Oh, one of them is speaking up. Unfortunately, she was not able to be with us when we were debating gun laws, but once upon a time she, along with her other colleagues, would have resigned from the cabinet, but the Prime Minister knows that he cannot make them do that, because he has no authority whatsoever.

Putting all this together, I think you have to agree that we do unfortunately have a hapless, accident prone, self-serving QC in charge of the administration of justice in this country. He has shown that he is a serial stuffer-upper and among the biggest stuffer-uppers in government that Australia has ever seen. It is no wonder that the Attorney-General's colleagues want to see him gone. Almost since I arrived in Canberra as a senator, Canberra has been rife with rumours that the Attorney-General was going to be moved on, that he was going to be reshuffled out of his portfolio, because he has become such a liability. Back in Queensland there is open discussion about who is going to take his Senate seat and where that Senate office will be moved to. It is absolutely no wonder.

Even this week some of his own colleagues in Canberra were very happy to talk to the media about what they thought about the Attorney-General. Here is what one of them said on the condition of anonymity:

Of course George has been such a shining example of good government.

Then he said:

London can't come soon enough.

That is of course a reference to the well-known speculation that Senator Brandis may well replace that other towering intellect from the Liberal Party Alexander Downer as Australia's High Commissioner to Britain. I never thought that you would see someone less qualified and less deserving of being Australia's representative in London than Alexander Downer, but it would appear that we are likely to be facing that soon. So my advice to the Australian cricket team is: 'Get over there and win the Ashes as quickly as you can, because you don't want Senator Brandis appearing there and condemning you with very bad luck.' That is the kind of man we are talking about.

I know we are getting ready for Christmas. Everyone is thinking about Christmas being not too far away. My own children have certainly started preparing their own lists of Christmas presents that they want to see from centre and even a few from Mum and Dad. It would appear, though, that Senator Brandis really is the gift that keeps on giving for the Labor Party. He gives us an early Christmas present every single time he stands on his feet. He cannot open his mouth or pick up a pen without stuffing something up. He has really just got to that point. But, sadly for the Australian people, while ever he remains the Attorney-General he is doing severe damage to our rule of law and to Australia's system of justice.

I have spoken on a number of occasions about the legal services direction and the Attorney-General's actions in that regard. I am not going to go through that in detail—I will refer those at home who are paying attention to my earlier speeches—other than to say that the inquiry that was conducted by the legal and constitutional affairs committee on this dispute came up with three conclusions. The first was that the Attorney-General's action in issuing a direction that constrained the independence of Australia's Solicitor-General was a massive interference with the independence of the Solicitor-General and a massive threat to the rule of law. A former Solicitor General, Dr Gavan Griffith, a very well-respected man, pointed out that he had never been required to obtain the Attorney-General's permission to provide legal advice when he was Solicitor-General. He described this legal services direction as bringing to mind 'a dog on a lead'. That is the last thing that you want to hear a Solicitor-General described as or see treated as, but unfortunately that was the consequence of this Attorney-General's direction. All the witnesses that we had appear in front of the inquiry pointed out that the direction was a massive threat to the rule of law in Australia.

The second point that came out of this inquiry was that the Attorney-General had clearly failed to consult the Solicitor-General as he was required to do by law. We had time after time the Attorney-General claiming to the contrary. He tended to rely on one particular meeting that he had on 30 November last year where he claimed to have consulted the Solicitor-General about this direction. Unfortunately for the Attorney-General, the meeting notes of that meeting were circulated to all of the other attendees and not one of them who attended that meeting said that this issue about a new legal services direction or restriction on the Solicitor-General was discussed at that meeting. So we are left with Senator Brandis and his political advisers being the only people who say that the issue was discussed, when every other independent witness, including Senator Brandis's own departmental secretary, effectively said that it was not discussed. It is a gross interference with the independence of the Solicitor-General. The Attorney-General did not consult the Solicitor-General as he was required to do.

But, even worse than that, the Attorney-General has repeatedly misled the Senate as to his behaviour. He has repeatedly told the Senate that he did consult the Solicitor-General. As I said, that has been proven very clearly not to be true. We know that this Attorney-General has form in misleading the Senate. He has done it before. He has been subject to a censure motion. He has no credibility whatsoever. Even the Prime Minister said that a minister who misleads the parliament has no choice but to resign. The clock is ticking. It might be that Attorney-General gets reshuffled out of that portfolio before he has the opportunity to resign, but he probably does still have another week or two to do the decent thing, hand in his resignation and let us get on with having an Attorney-General who can actually bring credit to the profession and to their department.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to close the debate on this disallowance motion. I just want to make a number of comments, although I suspect mine will not be as amusing as Senator Watts'. Let's just recap what we are dealing with here. I moved this disallowance motion on Thursday, 10 November 2016. I did that in the context of the registration of the Legal Services Amendment (Repeal of Solicitor-General Opinions) Direction 2016 the very same day. That was Senator Brandis, the Attorney-General, putting in place an instrument which had the effect of repealing the amendment to the legal services direction that he previously had made and that I was moving to disallow. I observed then that, after all of the blustering, posturing and, frankly, mendacity of the Attorney-General, it had come to this: the Attorney-General reversing his own direction. He had been defending it for months. This is the direction he had been defending for months, the direction limiting the role of the Solicitor-General, a direction that I think on any fair reading has forced an honourable man, Mr Justin Gleeson, to resign from the position of Solicitor-General. Senator Brandis defended the direction for months but hours before it was set to be disallowed by the Senate he backed down and removed it himself to avoid embarrassment. It is really quite an extraordinary set of events. It has shown us a number of things, but it has certainly shown us one thing very clearly—that this direction was only ever about getting rid of Mr Justin Gleeson.

However, notwithstanding the repeal instrument registered by the Senator Brandis, I proceeded to move this disallowance motion—and I did so, as I have previously explained, in order to ensure that the Senate could protect its right to prevent the previous instrument being remade without its consent. So I am putting the motion to the Senate this evening in order to protect the rights of the Senate and to prevent an identical regulation being made by this Attorney-General within the next six months.

I just want to make a few comments about the substance. First, it is fundamental to our system of government that, when ministers exercise powers delegated to them by the parliament, they do so with integrity. Parliament empowers the executive to make regulations and other legislative instruments, but those powers should be exercised both in accordance with the law and not for improper purposes. I put it to the Senate that this Attorney-General's conduct in making this direction failed to meet those requirements and standards. It is a direction that undermined the independence of the office of the Solicitor-General, the second law officer of the Commonwealth. It curtailed the ability of ministers, departments, agencies, and office holders to seek legal advice from the Solicitor-General. It risked jeopardising the Commonwealth's ability to defend its interests in domestic courts, to protect the interests of taxpayers and to pursue Australia's national interests in international tribunals.

There are compelling policy reasons for the disallowance of this direction. But the problems with the direction lie not only in policy; there are legal flaws in the direction. Prior to its repeal, experts told the Senate Legal and Constitutional Affairs References Committee, the committee that considered this matter, that the direction was legally void and invalid.

There were also profound flaws in the process the Attorney-General had followed in making the direction. The failure to consult is one that has had a significant amount of attention. It ought be condemned not only because of the poor outcome it produced but also because it is demonstrably a breach of the law and a breach of the requirements under the Legislation Act for ministers to consult when making legislative instruments. Not only did we see the Attorney-General fail to consult before he made this direction; he then misled the Senate, because he told the Senate that he had consulted, when it is clear that he did nothing of the sort. In fact, he sought to hide, from the Solicitor-General, his plans for the direction.

In summary, the direction should be disallowed, even though it has effectively been repealed by the Attorney's backdown, to ensure it is not remade, because it is bad public policy; it undermined the independence of the office of Solicitor-General; it has adverse impacts on policy, legislation and litigation involving the Commonwealth; fundamental doubts have been raised before a Senate committee about its legal validity; it has been marred by the Attorney-General's failure to consult; and, frankly, the Attorney-General has misled the Senate over the direction. There are just a few of the substantive issues—

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

Senator Fawcett, on a point of order?

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

I appreciate that the Leader of the Opposition in the Senate is making some political points. But the statement she has made as a statement of fact, that the Attorney did not consult—he directly refuted that during the committee inquiry and has done so on numerous occasions in this place. I would ask you, Mr Acting Deputy President Gallacher, to ask her to withdraw that.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Absolutely not. That is a debating point.

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

I would rule that that is a debating point, Senator Fawcett. There is no point of order.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

What I am being asked to withdraw is what a Senate committee has found—that he did not consult. Frankly, those on that side should be holding this gentleman, this Attorney-General, to a higher standard. I am happy to come to the point about what evidence was given, but let me say this: the Attorney's assertion cannot stand. It is simply unable to stand on the basis of the facts found by the committee. I will come to the consultation point. I want to start first with the independence point.

The former Solicitor-General pointed out that the direction was a significant change to longstanding arrangements. In his submission to the Senate committee, he said:

... it is critically important that persons such as the Governor-General, Prime Minister, and officers of Parliament are able to approach the Solicitor-General for advice in an uninhibited fashion, and in respect to questions framed by them and not by others.

He went on to say:

The Direction undermines that role insofar as it permits an Attorney-General to deny access to the Solicitor-General and has the potential to discourage persons and bodies from seeking the Solicitor-General's advice.

The best way to understand this direction is as a power grab by Senator Brandis. The best way to understand this direction is as a bid to undermine the independence of the Solicitor-General and to control the flow of legal advice.

I again refer, as did Senator Watt, to the evidence of a former Solicitor-General, the long-serving former Solicitor-General Dr Gavan Griffith QC, who in his submission really brought home the seriousness of Senator Brandis's attack on the independence of the office. He said that, if the direction were implemented, it would convert the office into one of 'closet counsel' within the Attorney-General's political office. Dr Griffith said the direction would have a chilling effect on perceptions of the integrity of the office of Solicitor-General. He said:

The uncomfortable image of a dog on a lead comes to mind.

He concluded his submission by saying:

I regard the content and intent of the Directions as effecting the practical destruction of independent office of Second Law Officer within the Australian constitutional context.

Some of those opposite pride themselves on being conservatives. Well, conservatives preserve institutions. Conservatives preserve institutions and conventions. What you have is a government whose leader in this place is seeking to undermine an institution that has served Australia well. Those on that side who call themselves conservatives should have done something and should do something about it.

I turn now to the issue of legal validity. I will not spend too long on this, but I would make three points. First, legal experts have advised that the relevant provision of the Judiciary Act does not allow the Attorney-General to issue directions affecting the functions of the Solicitor-General. If that opinion is correct, it would mean that the direction that is before the chamber is beyond power—ultra vires—and legally invalid. That was a view put to the committee by both the then Solicitor-General, Mr Gleeson, and by Dr Griffith QC. Second, I would make the point that the committee also received advice that the direction's attempt to curtail the circumstances in which the Solicitor-General could provide legal advice was in conflict with the Law Officers Act—in particular, section 12, which provides that the Solicitor-General's functions include acting as counsel for, amongst others, ministers and officers of the Commonwealth.

Finally we get to the consultation point, because, of course, this has occupied some debate in this chamber. The direction was argued to be legally invalid because the Attorney-General issued it without having the appropriate consultations which are mandated—that is, required—by section 17 of the Legislation Act. I do not think that any reasonable person could look at the evidence that was presented to the Senate committee and back Senator Brandis's version of the event. No reasonable person could look at doing so because it is quite clear that the evidence established that there was no such consultation, and the evidence of Mr Gleeson was clear on that. I will turn to that point. Mr Gleeson said:

I had no advanced knowledge that the direction would be made, no notice of what would be in the direction and no opportunity to put a submission to the Attorney-General or the department as to my views on the legality or merits of the direction.

He went on to say:

I was not given an opportunity to comment on the content of direction and finally there was no consultation with me at any time.

'There was no consultation with me at any time'! I ask this Senate: who would you believe? Would you believe Senator Brandis or would you believe in this context Mr Justin Gleeson?

The reality is that the conduct of this matter raises serious questions about Senator Brandis's fitness to hold office as Australia's first law officer. He sought to gag the Solicitor-General; he sought to curtail independent legal advice to the Commonwealth; he embarked on a power grab through, frankly, underhanded and deceptive conduct; he went behind the back of the second law officer. All of this led to an unprecedented breakdown in the relationship between the first and second law officers of the country; a breakdown in trust which has prompted an honourable and decent man to resign. Frankly, it should be of concern to all in the Senate that this Attorney-General, despite all of this evidence, continued to mislead the Senate in the explanatory statement, which he tabled with the direction in which he continued to assert that he had consulted with the Solicitor-General. I think that is demonstrably misleading of the parliament.

Really, there is no more serious matter when it comes to the integrity of this parliament in carrying out its legislative functions. A senior member of the executive government, exercising delegated legislative power, misled the parliament in the formal explanatory statement he tabled with the proposed legislative instrument. It is not conduct that can be allowed to stand, because it undermines the role of the Parliament and particularly undermines the rights of the Senate. We have, as a parliament, a right to scrutinise the executive government's exercise of its powers to make delegated legislation.

In conclusion, this direction should be disallowed because it represents an attack on the independence of the Solicitor-General and, indeed, on the rule of law. It should be disallowed because the minister whose job it is to uphold the law has been exposed as flouting the law. The direction should be disallowed because, in misleading the Senate, the Attorney-General has breached a fundamental requirement of our democracy, the principle of ministerial accountability to the parliament. Finally, it should be disallowed so that this Attorney-General receives the message loud and clear: that it is unacceptable to the Senate. I commend the motion to the Senate.

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

I have just taken the chair and I understand Senator Wong has now closed the debate. Minister?

Fiona Nash (NSW, National Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I seek leave to make a short statement.

Leave not granted.

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

The question is that the motion moved by Senator Wong be agreed to.

Question agreed to.