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Tuesday, 24 September 2002
Page: 4777


Senator ROBERT RAY (6:58 PM) —I move:

That the Senate take note of the document.

When we are dealing with this particular institution it reminds me of the difficulty that this chamber has, and indeed both chambers have, with the provision of legal advice to government. What we have seen emerging as a pattern over the years is that advice provided by the Australian Government Solicitor's office to the executive is only ever published when it unambiguously backs up the government's point of view and when the government is under the political cosh on a particular issue. It is then that we find ministers coming into this chamber and tabling legal advice. They always say, `This is done without precedence,' and that this does not set a precedent for the future that they will do it on all occasions. In other words, it has become a total convenience. However, if they are criticised on a matter and we have said, `We don't know whether this particular piece of legislation will be legal under the Constitution,' they often say, `We have had legal advice on this.' We ask them to produce it and we get their weasel words saying, `It is not the normal practice of government to table this advice.' This place does run by convention, but this is one convention on which I think it is time we went in a different direction. I think that any time the executive get legal advice, especially as to the constitutionality of a piece of legislation, they should be bound to table that advice in this chamber—not just when it suits them but on all occasions.

It would be difficult to argue that the legal opinions that come out of the Government Solicitor's office are without flaw. On many occasions in the past we have seen them with flaws. The number of times that I as a minister got a letter from the Attorney-General's Department that started: `Minister, on a better view ...' and they have changed their minds. You would have acted strongly and vigorously on the previous legal advice only to find that it was changed. A lot of that would be benefited by publishing the advice so it can be examined by others. We know government departments are more and more often going outside the Australian Government Solicitor's office for advice.


Senator Carr —What are these panels they are operating?


Senator ROBERT RAY —Senator Carr raises the question of legal panels. These legal panels are set up because you cannot go through a bidding process, Senator Carr—it is so enervating and so expensive—so you go for the panel approach. What you are trying to do then is concentrate expertise over three, four or five legal firms. For instance, how many legal firms are experts in electoral law at the moment? Very few. So if you want to go to the Court of Disputed Returns you come to an old political pro like Senator Carr who has it all in their head, not some QC, because there are not specialists in these areas. But if we actually publish some of these legal opinions—and I am not talking about publishing a government legal opinion that is critical to their defence in a High Court case; I would never conceive of doing something like that—if it is just on the constitutionality of their bill, let a thousand flowers bloom here. Let us put it on the table, let us have it debated and let us do it consistently.

This government may well say, `Why should we cut the Gordian knot? No other government has done it.' They should do it because there is such a thing as progress. Every time you hear ministers in this chamber bleat, `You didn't do it in the previous government.' Government is all about progress and change over time. And you get to a point where you should do new things and they should be welcomed. But instead we have an attitude of almost executive cowardice here. They want to hide behind legal opinions produced by not necessarily the greatest legal minds in history in this office. They are good triers—I concede that—but most people would say that if they had a little more brilliance they would probably be practising at law or indeed even seeking Senate preselection in certain cases.


Senator Carr —For the Liberal Party.


Senator ROBERT RAY —For anyone, for that matter. You cannot just restrict it to the Liberal Party, although they do have a predominance there. The point I am really making about these corporate goals is that on these particular issues it is better to go the open route. It would be better for the governance of the country, better for the role of this chamber and, in the end, better for the executive itself. I seek leave to continue my remarks later.

Leave granted; debate adjourned.