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Monday, 10 October 2016
Page: 1327

Senator WATT (Queensland) (16:29): At the request of Senator Gallagher, I move:

That, in the opinion of the Senate, the following is a matter of urgency:

The failure of the Attorney-General, Senator the Honourable George Brandis, QC, to uphold the standards expected of the first law officer of the Commonwealth, by his undermining of public confidence in legal administration within the Government.

I should say at the outset of this debate that I am a member of the Legal and Constitutional Affairs Committee, which is the relevant committee to which this matter has been referred, and that we are still in the process of conducting hearings about this very serious matter involving the Attorney-General. Our committee process is ongoing and we are yet to hand down our report, and I do not want to prejudge what that report might say. But I think that it is important as a member of that committee to put on the record what we already know as a result of these hearings.

As I have been reading the material and talking to people about this matter, it has become clear to me that there is some confusion in the community about why this issue really matters. It is all very well for lawyers like myself and other lawyers who are involved in this committee to take for granted that matters around the conduct of the Attorney-General and the Solicitor-General are inherently important things, but I very well understand that for the average person in the street it may not seem, necessarily, to be particularly important. So the first thing I wanted to do is just take a little bit of the Senate's time to explain exactly why it is that these matters involving the Attorney-General really do matter—because, for all that we might be talking about legal directions, guidance notes, legislative instruments, and all sorts of legal jargon, what this really boils down to is what appears to be an unprecedented attack by the Attorney-General on the Solicitor-General of our country. Most of us in this chamber, and most Australians, would accept that matters like the separation of powers, the independence of judicial officials, and the independence of statutory officials like the Solicitor-General—we take for granted that those things are important, and that the independence of officials like the Solicitor-General is absolutely critical to our system of democracy, to making sure that the government of the day receives the best possible independent legal advice. But it appears, unfortunately, that there is one person in this chamber who does not understand and does not accept that the independence of the Solicitor-General is important. And what is even worse is that that person appears to be the first law officer of our country, the Attorney-General, Senator Brandis.

Those of us who have followed the career of Senator Brandis know that he has form in this regard. This is Senator Brandis, of course, who attempted to induce the resignation of the Human Rights Commissioner, Professor Gillian Triggs—again, completely ignoring the need for independence in that official. For those of us from Queensland this is eerily familiar, because we lived through the Newman government, which had a completely out-of-control Premier and Attorney-General who showed their flagrant disregard for the independence of the judiciary and the Solicitor-General on a number of occasions. So there just does seem to be something about Liberal attorneys-general from Queensland that they just do not get things like the separation of powers and the need for the independence of the Solicitor-General.

There are a number of witnesses who have already given evidence to this inquiry who have underlined exactly why this issue matters so much. Professor Appleby from the University of New South Wales said at the inquiry that the issue of the direction that the Attorney-General gave, in her view:

… demonstrates a serious incursion by the Attorney-General into the Solicitor-General's role, and the process that preceded the issue of the direction demonstrates a lack of trust and a lack of respect by the Attorney-General for the office of the Solicitor-General, particularly in respect of the function, the status and the independence of that office. This raises, in my mind, serious concerns for the rule of law.

But in addition to that, we have three current or former solicitors-general of our country who have completely contradicted the argument that Senator Brandis has relied upon to back his actions. The current Solicitor-General, Justin Gleeson, has done so in his submission to the Senate inquiry; a former Solicitor-General, Dr Gavan Griffith, has equally made the point that Senator Brandis's actions are not in line with relevant sections of the legislation; and even Sir Anthony Mason, a former Solicitor-General and former Chief Justice of the Australian High Court, has rejected the argument of Senator Brandis that he has some power to control which ministers—including the Prime Minister—and which departmental officials can obtain independent legal advice from the Solicitor-General. So we have a professor from the University of New South Wales—probably Australia's leading expert on the role of the Solicitor-General, and we have three current or former solicitors-general, one of whom went on to become Chief Justice of the High Court of Australia, who say that what Senator Brandis is attempting to do is not right. Yet Senator Brandis charges on. He is out on his own in this matter. He has no support from a legal point of view for what he is attempting to do.

However, not content with initiating a serious attack on the rule of law, Senator Brandis has gone further. It appears that he has misled the Senate in arguing what the process was that was undertaken in the lead-up to him issuing this direction. Senator Brandis has now said on a number of occasions, including in question time today, that he consulted the Solicitor-General before issuing a direction which controls the independence of the Solicitor-General. But anyone who has paid attention to this Senate inquiry will see that there is no evidence whatsoever to back up what Senator Brandis is saying. And the problem for the Attorney-General is that, as much as he might say that he has consulted the Solicitor-General—and if you look closely at what he says, he is very careful in his answers; he is very careful about saying that he talked to the Solicitor-General about a general process, and about briefing the Solicitor-General, but he is very hard to pin down about whether he consulted the Solicitor-General specifically on the direction that he issued. Yet he was happy to go and tell the Senate that he did so—in the explanatory memorandum for the direction. But when you look at the evidence, there is not one other person who attended the meeting that the Attorney-General had with the Solicitor-General on 30 November last year who backs Senator Brandis up. Senator Brandis is relying on a meeting that he had on 30 November last year with the Solicitor-General as the evidence for him having consulted the Solicitor-General about this direction—this direction which controls, in an unprecedented manner, the independence of the Solicitor-General. After that meeting the Solicitor-General was smart enough to circulate a record of that meeting, outlining the issues that were discussed. There is no mention, whatsoever, in those meeting notes that the Solicitor-General took, that the direction, or any attempt to control his advice, was discussed in that meeting—and that is very easy to explain: because it was not discussed.

The Solicitor-General circulated that meeting record to all of the other attendees at that meeting, which included two other independent people. So, whether you want to say that the Attorney-General and the Solicitor-General are just involved in a fight here—and who do you believe? It is one person's word against another—there are other people, other independent witnesses, who were present at that meeting who not only do not back up the Attorney-General's view of events; they actually back up what the Solicitor-General is saying when he says that he was not consulted about this matter.

The former Australian Government Solicitor, Mr Ian Govey—now retired—was asked for feedback about these meeting notes, and he responded by saying that he was okay with those meeting notes; they were an accurate reflection, apart from one minor unrelated point. He did not make any point about a direction or any control on the Solicitor-General having been discussed at this meeting. That is one independent person who attended this meeting who does not back up Senator Brandis and does not say that this direction was discussed at the meeting.

Not only that, though, Mr Moraitis, the secretary of Senator Brandis's own department, also attended the meeting on 30 November. Mr Moraitis was sent the Solicitor-General's record of what occurred at that meeting. He was asked for feedback: 'Was anything left out? Was anything else discussed?' He responded by saying that he had no issues with those notes. The secretary of Senator Brandis's own department, who attended this meeting where this consultation allegedly occurred, was invited to respond about what was discussed at that meeting, and he says that he has no issue with the Solicitor-General's record of events.

We also obtained evidence from Senator Brandis's own department, which also demonstrates that they were instructed by the Attorney-General to issue this direction well after the meeting occurred in November. It is very clear—we are waiting for more evidence—that Senator Brandis has misled the Senate, and he needs to seriously consider his position. (Time expired)