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Tuesday, 8 November 2016
Page: 2172


Senator WATT (Queensland) (17:23): I would also like to speak on the tabling of the Legal and Constitutional Affairs References Committee's report detailing the committee's findings from its inquiry into the consultation prior to the making of directions concerning the opinions of the Solicitor-General. And what a sordid tale it is, with yet again the lead actor in another drama involving the Turnbull government being the Attorney-General, George Brandis. Of course the Attorney-General, we all know, has form in misleading this parliament. There was the terrible misleading of parliament that occurred by him in relation to the tragic events at the Lindt cafe. This is the man who has already been sanctioned by this Senate over his failure to protect the President of the Human Rights Commission, Gillian Triggs, and I expect that we will continue to see more bombardment of Gillian Triggs by this government and this Attorney-General in coming weeks. Not only that, but this is the Attorney-General who engineered appointment after appointment of Liberal Party mates, donors, staffers and failed candidates to the Administrative Appeals Tribunal.

So this Attorney-General has form, and now his actions have resulted in the resignation of Australia's Solicitor-General—the foremost legal mind when it comes to Australian public and constitutional law—Justin Gleeson SC. As I said, he is one of Australia's foremost legal minds. This is a man who has represented the Australian people with distinction in the International Court of Justice. He led the charge for Australia, along with former Attorney-General Mark Dreyfus, to stop Japanese whaling near Australian waters. Mr Gleeson has represented the Australian government as Solicitor-General in dozens of complex constitutional cases before the High Court of Australia. Unfortunately, due to the actions of this Attorney-General and this government, we no longer have Mr Gleeson serving in that role—and advice to this government will be much the poorer for it.

The committee heard evidence from a number of people—from the Attorney-General and the Solicitor-General, from two former solicitors-general, from a number of independent experts on the relationship between governments and the Solicitor-General, and from other witnesses as well. That evidence allowed the committee to draw three very clear conclusions: firstly, the direction that was issued by the Attorney-General to constrain the ability of the Solicitor-General to provide independent legal advice was inappropriate, improper and probably invalid; secondly, the Attorney-General did not in fact consult the Solicitor-General on the content of the direction as he was required to do by law; and, thirdly, the Attorney-General misled the Senate again by repeatedly and falsely claiming that he did consult the Solicitor-General.

As a result of these conclusions, we have recommended that the Attorney-General withdraw the direction or that it be disallowed by the Senate in due course. It is not a common action for the Senate to disallow a regulation or an instrument issued by a minister, and the fact that the committee is recommending this demonstrates the seriousness of the Attorney-General's mishandling of this matter and his improper conduct in dealing with the former Solicitor-General.

Turning to each of those three conclusions: firstly, the committee determined that the direction is improper, inappropriate and invalid. One of the things that have been lost at times over this inquiry is exactly why it is so crucial that we have an independent Solicitor-General. Recently the Australian Lawyers Alliance, one of the peak bodies representing lawyers in this country, issued a statement saying:

There is a compelling public interest in having the Solicitor-General as an independent statutory counsel to government. A core purpose of the position is to provide frank and fearless advice to government. Senator Brandis' actions flagrantly ignore this, and bring discredit on his position as Attorney-General.

This Attorney-General has lost the confidence of many members of his own profession—the legal profession—who are represented by that body.

Why exactly does it matter that we have an independent Solicitor-General? This is something that lawyers are concerned about and it is something that many academics are concerned about. But why does it matter to the average person in the street? I will give you a couple of examples of why it really does matter that we have an independent Solicitor-General. Just imagine, as is occurring right now, that the Electoral Commissioner needs to seek advice from the Solicitor-General about the legality of a particular member of parliament remaining in this parliament. What would ordinarily happen is that the Electoral Commissioner would be free to go and get that advice independently from the Solicitor-General and get the very best advice on whether a member of parliament is fit to remain in this parliament. That kind of advice takes on particular importance when you have a situation like we do at the moment—a government with a bare majority that is desperate to hold onto every single vote it possibly can have. The effect of this direction that has been issued by the Attorney-General is that, if it is to pass, then the Governor-General, the Prime Minister, any minister, any departmental head or any statutory official—like the Electoral Commissioner—would need to seek the Attorney-General's permission before seeking advice from the Solicitor-General. Do we really believe that this Attorney-General, with his record of misleading this chamber and treating independent statutory officials extremely unfairly and making their positions untenable, would agree to an Electoral Commissioner coming forward and saying they want to get advice from the Solicitor-General about whether a particular member is fit to remain in parliament? I do not think so.

I will give you a second example. This election was a very tight one; there was a distinct possibility that we could have had a hung parliament. In that kind of situation, it may well be the case that the Governor-General of the day wants to seek the Solicitor-General's opinion on how the Governor-General should deal with the parliament—who the Governor-General should ask to form a government.

Again, as a result of this direction, the Governor-General of this country, our head of state, would need to go to the Attorney-General and get the Attorney-General's permission to go and seek that independent legal advice from the Solicitor-General. This is a disgrace. Do we really think that this Attorney-General, of all people, would give the tick to the Governor-General seeking that kind of legal advice when this Attorney-General does not seem to like the advice that is sometimes provided to him? This direction throws the independence of the Solicitor-General out the door, and it is an absolute disgrace.

That was the first conclusion reached by the committee. The second was that the Attorney-General had failed to consult the Solicitor-General. That was the main function of this committee. That need to consult the Solicitor-General arises under section 17 of the Legislation Act. Essentially it says that if a rule maker, who in this instance was the Attorney-General, proposes to make a rule, then they need to consult the people who would be directly affected by that instrument. There is no-one who would be more directly affected by this direction than the Solicitor-General himself. It was very clear under section 17 of the Legislation Act that the Attorney-General was required to consult him.

It is not surprising therefore, that when the explanatory note was provided to go along with that direction it claimed that the Solicitor-General was consulted. Again, the Attorney-General has repeated that statement—that the Solicitor-General was consulted—on a number of occasions to this chamber. Unfortunately for the Attorney-General, though, the evidence that was heard by the committee does not back him up. The Attorney-General relies on a meeting that was held in his office on 30 November 2015. Over and over again we have heard the Attorney-General say that he consulted the Solicitor-General at this meeting on 30 November 2015. The problem for the Attorney-General is that there were other people who were present at that meeting and not one of them has come forward to back up what the Attorney-General is saying.

The Solicitor-General was obviously smart enough to keep a record of that meeting and to circulate it to the other people who attended that meeting. The Solicitor-General set out every item that was discussed at that meeting and—what do you know?—there was no mention of the direction. Why was that? It is because it was not discussed. That meeting record was sent to the other attendees at that meeting, who included the former Australian Government Solicitor and the secretary of the Attorney-General's own department. They were asked to provide feedback on that meeting record to add anything that was omitted, or anything at all, and both of them came back agreeing with that meeting record. Not one of those people, including the Australian Government Solicitor or the secretary of the Attorney-General's own department, believed that this direction was raised at the meeting that the Attorney-General relies on when he argues that this consultation occurred.

We had evidence from the deputy secretary of that department saying that the department was not aware of the direction until 20 April 2016. How could the Attorney-General have consulted the Solicitor-General in November 2015 when his own department did not know about this direction for five more months? Eventually in evidence to the committee the Attorney-General did acknowledge that the first time the Solicitor-General was advised about the direction was when it was issued on 4 May 2016. Again, how could he have consulted in November 2015 when the Solicitor-General did not know about it for months?

So it is no surprise that the committee reached the view that the Attorney-General did not consult. He has compounded his error by misleading the parliament. He has to resign. He has to withdraw his direction. He has to go. (Time expired)