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Tuesday, 11 October 2016
Page: 1453


Senator GALLAGHER (Australian Capital TerritoryManager of Opposition Business in the Senate) (15:14): I thank Senator Paterson for his contribution and his advice and, in some sense, the permission that he has given us to pursue this issue. I am not sure we were seeking it, but it was given. It is no wonder that government members want this issue to go away and pretend that there is nothing to see here. I can see attempts to diminish this as an insignificant matter and that there are many more important matters—and, to some degree, that argument holds. There are many, many other important matters that the Senate will continue to discuss over this sitting week. But let's not pretend that the open disagreement and potential misleading of this chamber is not a significant matter that every senator in this place should be concerned about and should be wanting to pursue.

We know that on 4 May this year the Attorney-General issued a direction known as the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. The substance of the actual direction is for a debate on another day. The issue that we have been pursuing and will continue to pursue is whether the statement by the Attorney-General that he consulted the Solicitor-General on this legal instrument is true. It is about whether the explanatory statement to that direction—which specifically confirms that the Attorney-General had consulted the Solicitor-General on the individual legal direction itself—issued in the name of the Attorney-General, signed off personally by him and tabled in this chamber, is actually correct. It is about whether information tabled in this chamber, the Australian Senate, by the Attorney-General of Australia can actually be believed.

What we have learnt in this extraordinary episode, which sees the first and second law officers of the country in open disagreement, is that we have a new standard being set by this Attorney-General. For one, there is a brand-new legal definition of 'consultation.' Under the new 'Brandis standard', consultation is now defined as having a meeting about one subject and then trying to pass that meeting off six months later as consultation as defined by relevant legislation on a completely different subject altogether. What a ridiculous proposition to argue. No-one believes it, because it is simply unbelievable. Perhaps the only people that do believe it are the Attorney-General, himself, and those who occupy the parallel universe that he clearly exists in.

What we know is that the Solicitor-General sought a meeting with the Attorney-General to ensure that his advice was sought on matters of importance, to ensure that requests for advice were made in a timely fashion, to ensure that advice was sought in the case of legislation where further amendments were being made and to ensure that the Solicitor-General's advice was represented accurately in public. These are the issues that the Solicitor-General sought to prosecute in the November meeting. For the Attorney-General to pass off the November meeting as a consultation on the content of the legal direction, which was tabled in this place and which sought to significantly constrain the ability of the Solicitor-General as an independent officeholder, as being something that was discussed at that meeting is clearly incorrect. Indeed, the staff notes that have been released by the Attorney-General confirm that at that meeting no mention whatsoever was made of a legally binding direction which concerned the performance of the functions of the Solicitor-General or the requirement that the Attorney-General's advance approval must be granted before advice from the Solicitor-General could be sought.

It is very clear the direction was never mentioned, neither in the November meeting nor, indeed, in the meeting held on 23 March on other matters that were raised. There was no discussion of the direction. There was no discussion of the content of the direction. The Attorney-General's own letter on 4 May acknowledges this by mentioning the direction with the words, 'I have also issued an amendment to the Legal Services Direction 2005 and enclose a copy of the document.' It is clear from the letter that this is the very first time the Solicitor-General was made aware of it.

I asked that question in question time today. The Attorney-General has undertaken to come back with an answer, but, if you go on the facts as outlined in the submission from the Solicitor-General to the committee, it is very clear that the first time he was made aware of the legal direction was on 4 May—after it was tabled in this place—in a letter from the Attorney-General advising him that was the case. That is central to the problem that we have here with what Senator Brandis has said. (Time expired)