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Tuesday, 11 October 2016
Page: 1505


Senator McKIM (Tasmania) (18:06): I move:

That the Senate take note of the document.

Obviously the seeking of legal advice has been quite topical this week, and it will continue to be topical up until and beyond Friday this week. So it was quite striking when, on a very preliminary examination of the Annual report 2015-16 of the Attorney-General's Department, we found that the total of legal services expenditure in 2014-15 was $33 million. It has come down in 2015-16 to $26 million. They are totals. They are broken down into subtotals: of total external legal services expenditure—in 2014-15 that was just under $31 million, and in '15-16 was $24.3 million—and of total internal legal services expenditure, which was $2.15 million approximately in 2014-15 and just over $2.5 million in 2015-16. These figures, at least on my preliminary examination, have not been broken down by the Attorney-General's Department. But, boy, will it be a fertile avenue of questioning once we get into the estimates process because of course the total for internal legal services expenditure has increased reasonably significantly, from $2.1 million to $2.6 million, from 2014-15 to 2015-16.

What we know, thanks to the submission from the Solicitor-General to the Legal and Constitutional Affairs Committee, is actually that this Attorney-General is starting, more and more—or at least in certain circumstances—to work around the Solicitor-General, presumably because he thinks he is going to get advice from the Solicitor-General that he does not like, and instead is going to the Australian Government Solicitor.

The Australian Government Solicitor is housed within the Attorney-General's Department. Let us be clear: it is not the Australian Government Solicitor's job to give constitutional advice to the government. That is the job of the Solicitor-General, and it is one of the jobs of the Solicitor-General that this parliament had in mind when it created the office of the Solicitor-General.

So the question for the Attorney is this. That is a relatively significant increase—about 20 per cent in broad terms—in the amount of money expended on internal legal services. They are, presumably, services internal to the department. Is that increase a numerical reflection of his increasing habit of working around the Solicitor-General and actually going to the Australian Government Solicitor for legal advice that properly he should be getting from the Solicitor-General?

There is no problem with the Attorney-General deciding that the advice he gets from the Solicitor-General is not the advice he wants to present to government. There is no problem there at all. And there are also circumstances that we could all envisage where it would not be appropriate for the Attorney to seek advice from the Solicitor-General—for example, if he thought, reasonably, that the Solicitor-General was conflicted on a matter or there was a significant perception of a conflict of interest in relation to the Solicitor-General.

Senator Ian Macdonald: Or because he was wrong.

Senator McKIM: But not because, Senator Macdonald, he thinks he might not like the advice that he is going to get from the Solicitor-General. But I would bet my bottom dollar that that is why this Attorney is shopping around for legal advice, not only to the AGS but out to the private bar as well: because he thinks he is not going to like the advice he gets from the Solicitor-General. That is not good enough, from the first law officer of this country. It is not good enough by any stretch. And we will be prosecuting this matter at length next week in Senate estimates, to get to the bottom of whether this numerical increase—this increase in expenditure on total internal legal services in the Attorney-General's Department—is actually a reflection of a pattern of behaviour by this Attorney-General, who not only has, arguably, misled this Senate, but is presiding over a disturbing pattern of working around the Solicitor-General and shopping out requests for legal advice to try to find the advice that will be politically palatable to the government. (Time expired)