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Wednesday, 9 November 2016
Page: 2335


Senator PRATT (Western Australia) (15:07): I move:

That the Senate take note of the answer given by the Attorney General (Senator Brandis) to a question without notice asked by Senator Pratt today relating to the extent of consultations surrounding the making of a direction concerning the Solicitor-General.

The Attorney-General is no white rabbit. All the king's horses and all the king's men cannot unscramble Senator Brandis's answer. The dissenting report that the coalition members of our committee put together and that Senator Brandis has referred to in his answer tries to justify why no consultation can somehow be defined as consultation. Indeed, this is how we end up in Humpty Dumpty land. The report of coalition senators says that the Attorney pointed out during his evidence that section 17 of the act establishes a rule-maker's obligation to consult when making an instrument such as the direction. This I well understand to be the case.

Senator Brandis: On such terms as he sees fit.

Senator PRATT: Indeed, the Attorney-General may define that consultation as he sees fit. However, what that does not, in my view, enable him to do, if he could say he consulted and fulfilled his obligations under the act—

The DEPUTY PRESIDENT: Senator Pratt, just a moment—it seems that the clock is not on.

Senator PRATT: What the explanatory memorandum says quite specifically is not that you consulted but that you consulted the Solicitor-General. In the minority report you say that Mr Gleeson is entitled to his idiosyncratic understanding of what consultation is, and indeed the Solicitor-General says:

If one has a duty to consult over the issue of a legislative instrument, the first thing you have to do is tell the person affected or the person with expertise that you are thinking of issuing a legislative instrument. If you do not tell them that they cannot provide you with meaningful comments on either the legality or the wisdom of what you are doing. The second thing you have to do is tell them the substance of what you propose to put in the instrument. Now, if the Attorney had done both those things, the issues that we now have before us would have played out in a very different fashion.

So I very much stand by the findings of our report—

Senator Brandis: These are not findings; this is political rhetoric. Nobody would class those as findings.

The DEPUTY PRESIDENT: Order, Senator Brandis! Senator Bilyk?

Senator Bilyk: Madam Deputy President, I am having trouble, with the interjections from the Attorney-General, hearing Senator Pratt's fantastic contribution on take notes today.

Senator Brandis: On the point of order, Madam Deputy President: Senator Bilyk must have misunderstood—I was merely pointing out to Senator Pratt that 'findings' is a term that is used about a tribunal of fact, not a political committee.

The DEPUTY PRESIDENT: I have called order a number of times, and I remind senators in this place that when senators are speaking they have a right to be heard in silence.

Senator PRATT: Government members of the committee—again we find ourselves in Humpty Dumpty land—see fit to say in defending the Attorney-General's assertion that he has consulted the Solicitor-General:

… it is also important to observe what that Explanatory Statement did not say. It did not say that the Attorney-General had consulted the Solicitor-General in some specific fashion. It did not say, for instance, that he had consulted the Solicitor-General about whether he thought a Direction in some precise form should be issued. It did not say that the Attorney-General had consulted the Solicitor-General by providing him with an exposure draft of the instrument. It did not say that the Attorney-General had secured the agreement of the Solicitor-General to the form of the Direction. What the Explanatory Statement actually said was:

… the Attorney-General has consulted the Solicitor-General.

They are completely contradictory statements given that the Solicitor-General was never ever in any way informed about the instrument that was going to be tabled, the legal services direction, until it was tabled in May. Senator Brandis relies on a meeting of 30 November as his defence for saying he had consulted the Solicitor-General—

Senator Brandis interjecting

The DEPUTY PRESIDENT: Senator Brandis, you are continually interjecting. Senator Pratt has the right to be heard in silence. I ask all senators to respect Senator Pratt's right to be heard in silence

Senator PRATT: He points to the meeting on 30 November at which time no such instrument was contemplated or in existence. There was no obligation to consult under the act at the time. Senator Brandis has very conveniently pointed back to that meeting to try to construe that he had in some way consulted the Solicitor-General. The Solicitor-General, as the evidence before our committee has shown, was never ever informed of the Attorney-General's intention to issue the instrument. (Time expired)