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Tuesday, 8 November 2016
Page: 2177


Senator O'SULLIVAN (Queensland) (17:43): I rise to make a contribution to this debate with respect to the report on the consultations prior to the making of directions concerning opinions of the Solicitor-General. Firstly let me start perhaps on an area to which I had not necessarily intended to devote much time. I too have an interest in these claims of public interest immunity. It may be of interest to the previous speaker that I had a situation where Professor Triggs made not one, not two but three claims of public interest immunity to a line of questioning. It was a pure estimates matter. We were showing interest in how she and her commission had spent our money. We were investigating what, to the rest of the world, seemed prima facie to be quite frivolous matters.

It may be of interest to you that I was unable to secure the support of one of your colleagues in the committee meeting to challenge the claim that had been made by the good professor. It did not matter. We had some very sound legal advice. In fact, our colleagues from the Labor Party were contemplating supporting a rejection of the public interest immunity claim that had been made, in the interests of transparency and providing the information to the committee that it required, but your colleague was the one who resisted, very energetically, against having the public interest immunity claim determined as having not been valid.

Senator Williams: Who was that colleague?

Senator O'SULLIVAN: I am not in the business of that. The colleague is not in the Senate any longer. I participated in an examination of the Solicitor-General. I have been, along with Senator Macdonald, the subject of some public commentary in relation to our examination. I do not speak for Senator Macdonald; I speak purely for myself. My examination of Mr Gleeson was initially directed at trying to clear up this perception that he had become politically active in the question that was before the Senate. As time went on, the evidence revealed that Mr Gleeson had engaged in behaviour that prima facie was very political.

You will not agree with me, Senator Pratt. You did not agree with me on the day, through you, Mr Acting Deputy President. As an officer of the Crown, the second law officer, it has been forgotten by many of you, works and has a responsibility in the relationship with the first law officer. It does not matter who is in government—whether it is the Labor Party, the coalition or, as anticipated in about 300 years time, a Greens government—that government has to have the confidence in its officers and within their relationships that those officers are not engaging in political activity.

I cannot in good conscience separate the behaviour of Professor Triggs, over a long period of time, and Mr Gleeson. Neither of these people, I suspect, can take the defence that they did not understand what they were doing. I suspect they are very intelligent. They are very well educated people. They do not have the defence that, as my old boss in the police used to say, 'It's not that he didn't know. It's that he didn't know he didn't know, is his defence.' In this case neither of these very senior legal professionals are able to take the case.

When the government was in caretaker mode it is politically an acutely sensitive time—it is the time everyone is shopping to get an edge. For both of these very senior officers of the Crown to have conversations with the opposition and the shadow Attorney—anybody who did not realise that that had a certain political volatility about it simply is not thinking. Even if in having done that their silence in not advising—in this case the second law officer advising the first law officer that he had engaged in a conversation with the shadow Attorney-General on a matter of great volatility—is deliberate concealment on his part in this case.

Senator Pratt: They were in caretaker mode. There was no such obligation.

Senator O'SULLIVAN: I know that this does not sit comfortably with you. I know that when we sit down and lay these things out deliberately and carefully it becomes very uncomfortable for you because of what you would prefer to think. Imagine a world where the senior officers of a government of the day could do what they liked and could engage in conversations with whomever they liked and where confidential information passed between officers of the government and the opposition. Given the nature of how our parliament operates, you do not think that would be a problem? I know that that became the norm under Labor governments. In fact, I think it contributed significantly to bringing you down. You guys do not even do it through the concealed method. You wait until someone wants to run a three-part documentary and then you play yourself. You actually get an old phone so that it does not look like you have the new iPhone, because that conversation took place three years ago. I will tell you what we are not going to do that: we are not going to take a lecture off you guys about what standards need to be met by senior officers of the Crown, who are paid pretty significant money to get on and do the business of the Commonwealth.

Let us come down to the question at the heart of this issue. This is to do with two documents. It is the tale of two documents. You had a guidance note and then a legal services direction. These two things bore a relationship to each other. Admittedly, there is an argument that one carried more weight than the other. One was more prescriptive in the sense of how one had to react to it.

An opposition senator interjecting

Senator O'SULLIVAN: Hold on. Listen: I rarely do this, but I sat here quietly while you spoke. So I would appreciate it, through you, Mr Acting Deputy President—

The ACTING DEPUTY PRESIDENT ( Senator Gallacher ): Senator O'Sullivan, please direct your comments through the chair.

Senator O'SULLIVAN: Through you, Mr Acting Deputy President, you might ask him to sit quietly. I know that I am really on the money when I start to get the interjections, so the more you interject the louder I will get, but I will get my message through. We have two documents here that bear a relationship to each other. There is no challenge on the part of Mr Gleeson and, in fact, there is no challenge on the part of the Attorney-General that discussions took place. There was engagement between the Attorney's office and Mr Gleeson's office. There was engagement between the Attorney's office and his department. There was engagement between the department and Mr Gleeson. All that is out in evidence. I do not think anybody is disputing that. We have a guidance note that was developed in a discussion. There are minutes to show that the legal services direction had at least been in the conversation. You can challenge, if you will, the detail provided by whoever took the minutes on the day. We can have that discussion on another day. Statements have been made in this place that these things were discussed. At the end of the day, Mr Gleeson made input to one of the documents, where that input and other input is reflected in the second document. I have to tell you that I had a couple of hundred staff before I came into this place. If I had run my business the way we run this parliament, I would have been broke by Tuesday lunchtime—seriously. I would have known by Monday afternoon that I was going broke on Tuesday.

An opposition senator interjecting

Senator O'SULLIVAN: I will take that interjection reflecting on Mr Day. He would buy and sell 100 of you on any given day, and he is a much better man than most of you. So, coming back to the question— (Time expired)