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Tuesday, 8 November 2016
Page: 2175


Senator McKIM (Tasmania) (17:33): This has been a sad and sorry saga since day one. The Australian Greens, through my representation on this committee, listened very carefully to the evidence provided to the committee by the then Solicitor-General, Mr Gleeson. We listened very carefully to the evidence of a number of other witnesses, including the Attorney-General, Senator Brandis. We have come to the conclusion that, in fact, Senator Brandis did not consult with the Solicitor-General on the legal services direction that currently sits on the table in the Senate. Of course, having formed the view that there was no consultation undertaken, we therefore have to form the view that the Attorney has in fact misled the Senate, because in the explanatory memorandum that accompanied the direction the Attorney claimed that he had consulted with the Solicitor-General. The Solicitor-General's evidence was abundantly clear. He does not believe that he was consulted. So we have the Attorney-General saying he was consulted but we have the Solicitor-General saying that he was not consulted.

When we tried to tease out what this all meant, it became clear to us that in fact the Attorney-General is placing a construction on the word 'consulted' that is not a reasonable construction of that word. The only evidence that the Attorney was able to offer the committee to back up his assertion that he had actually consulted the Solicitor-General was one series of contemporaneous notes taken by one of his advisers in which the initials 'LSD' were written. Those initials stand, we believe—reasonably so—for 'legal services direction'. That was the only evidence that the Attorney was able to provide.

I want to say something clear about consultation. What we believe a reasonable consultation would entail is far more than simply floating a thought bubble or a comment lacking in context at a meeting that mentions the ultimate end, which as it turned out was the Attorney's tabling of the legal services direction in the Senate. Mr Gleeson does not believe he was consulted. On a reasonable construction of the word 'consulted' he was not. Therefore the Attorney has, in the view of the Australian Greens, misled the Senate by claiming that he was consulted.

In the brief time I have today I want to cover another couple of matters that this report has exposed: firstly, the Attorney-General's penchant for shopping around for politically convenient legal advice. This was revealed in part by a letter from the then Solicitor-General, Mr Gleeson, to the Attorney dated 12 November 2015. Reading that letter, it is abundantly clear that the Solicitor-General has concerns about the fact that he was actually not being consulted on important constitutional matters, including the constitutionality or otherwise of particular pieces of legislation or particular proposals that the government was considering. Of the two examples he gave, one related to citizenship legislation—a proposal to suspend or revoke a person's Australian citizenship—and the other one was a proposal that related to marriage equality. Both of those matters were the subject of constitutional advice from the Australian Government Solicitor. I do not make any negative observation about the capacity of the Australian Government Solicitor's office to offer constitutional advice, but I do make the point that when the government ends up in the High Court debating the constitutionality or otherwise of something it has done, it is the Solicitor-General who is the counsel to government. It is the Solicitor-General, or his office, that will be appearing for the government in relation to those matters. So if you are going to take constitutional advice you should take it from your counsel: the second law officer in this country, the Solicitor-General.

We have concerns that the Attorney was shopping around for politically convenient legal advice. It is worth making the point that the government have done it again on the amendment bill to the Migration Act that has been tabled today in the other place. In fact, it is clear they have sought advice from the Australian Government Solicitor and the private bar but they have not yet publicly said that they sought advice from the Solicitor-General on that bill. They have not yet publicly said that, so that is a question for the Attorney.

There are issues around the rule of law here and Professor Appleby's evidence to the committee. There are issues around the effect of the legal services direction, which in the view of Dr Gavan Griffith QC, a former Solicitor-General, effects 'the practical destruction of the independent office of the second law officer' and leads to 'perceptions as to the integrity of the continuing office'. Dr Griffith concluded that remark by saying, 'The uncomfortable image of a dog on a lead comes to mind.'

One other matter that has been exposed by this committee report is the significant variance in the copies of the same letter that were provided to the committee by the Solicitor-General and by the Attorney-General. When you look at the two different copies of the letter, the difference is the amount of each letter that was redacted under a claim of legal professional privilege. It is very instructive that the Attorney has redacted far more of this letter than has the Solicitor-General. This brings to mind issues around claims of public interest immunity that are brought to this place by government ministers.

It is worth noting that on 48 occasions the Abbott and Turnbull governments have refused to provide to the Senate documents that have been demanded by the Senate. Claims of public interest immunity by this government are rife, and the Greens believe that this is a matter that needs further examination by this house of the Australian parliament. We believe it is of such importance that there ought to be a select committee created by this Senate to have a look at the many claims of public interest immunity that have been made by this government and assess whether or not they are reasonable claims.

We will, in the very near future, be getting in touch with the Manager of Government Business in the Senate and other representatives of government and the crossbench to discuss this issue. We want to do it collaboratively and constructively. It is time for the Senate to stand up and be counted, because we are arguably being treated with contempt by the government.

It is worth pointing out that parliament is sovereign over executive government. It is not the other way round. You can only form a government if you can cobble together a majority on the floor of the House of Representatives. That is the way our Westminster system works. The parliament remains sovereign. If the parliament demands information, the government should allow its claims of public interest immunity to be thoroughly tested.

We believe we need to look back over those 48 times where the Abbott and Turnbull governments have refused to provide documents demanded by this Senate and assess whether in fact the claims of public interest immunity were reasonable and valid. This needs to be done holistically; it needs to be done carefully, because, of course, there may well be information in those documents that the government has refused to provide that is legitimately subject to the claim of public interest immunity.

We think this needs a closer look. We think the government is developing a culture of noncompliance with orders for the production of documents by the Senate, and we believe the government is, arguably, wilfully obstructing the powers of the Senate, and that would be a most serious matter. All of those issues have been raised by this inquiry.

Finally, I want to say that the character assassination under parliamentary privilege of the former Solicitor-General, Mr Gleeson, that was conducted by Senator Macdonald was an absolute disgrace. It was one of the worst uses of cowards castle I have ever seen in my life—

The ACTING DEPUTY PRESIDENT ( Senator Gallacher ): Senator McKim, your time has expired. Are you seeking leave to continue your remarks?

Senator McKIM: Yes.

Leave granted.