Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Hansard source

I move:

That the Senate take note of Senator Brandis's answers.

In doing so, I note that the fact that certain information is provided to the government as legal advice is not sufficient in this chamber to satisfy a claim of public interest immunity. In relation to claims of legal professional privilege, as Senator Brandis has made, the 14th edition of Odgers' Australian Senate Practice states:

It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides a ground for a refusal of information in a parliamentary forum ... It must be established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings.

According to the advice received by the Legal and Constitutional Affairs References Committee, the existence of legal professional privilege may lend weight to a public interest immunity claim, but any such claim must nonetheless be raised on an accepted ground and accompanied by a statement of the harm to be apprehended from the disclosure of the information sought, and that is that the harm specified should relate to the matter at hand. What is the harm to the public interest in relation to this matter specifically, not in relation to general disclosure of legal advice? What is the harm to the public interest in relation to the Bell matter that would occur from the disclosure of the information sought?

As I outlined in my questions, in his response to the Senate, tabled on 23 March, the Attorney-General showed absolute disregard for the standing orders of this place when he stated: 'Thus, whether or not the Senate has accepted that matters pertaining to confidential legal advice to government are always and in all circumstances immune from disclosure is neither here nor there.' That is blatant disregard for the standing orders of this place. He went on to say: 'The fact is that, in general, such matters are not disclosed.' That is not a proper reflection of his obligation to the Senate. It is important that the Attorney-General is able to explain his actions and he has failed to do so adequately today. It really demonstrates that he believes he is above the rules of the Senate which specify that legal privilege is not in and of itself a basis for refusing answers to Senate committees or, indeed, for refusing answers in this place.

So the question before us today is why the Attorney-General has not complied with the Senate's request to provide the basis for his public interest immunity claims. It needs to be a legitimate basis. The substantive nature of the public interest immunity claim made by Senator Brandis does not meet the threshold tests required by this chamber. The report tabled by the committee yesterday required the Attorney-General to provide the committee with a statement of the grounds for concluding that it would not be in the public interest to disclose this information, specifying the harm to the public interest. There has been no recognition within the Attorney-General's answers that goes to that point. No harm to the public interest has been specified that would demonstrate that there is a harm to the administration of justice, given that the litigation in this matter has now ended and there is no risk of compromising that litigation.

On that note, why the Attorney-General has specifically refused to allow answers as to whether his office prepared a direction, under the Judiciary Act, that would have prevented the Australian tax office from intervening in this matter has not been answered. The Attorney-General, again, was aware of evidence given before the Senate committee on 27 March that the tax office was so worried that the Attorney-General was about to issue such a direction that they indeed sought legal advice and made the tax commissioner, Chris Jordan, aware of those plans. It is very clear that the Attorney-General did not make any efforts to disabuse them of that notion, because it is clear that he had such plans, and he has made no explanation to the Senate regarding those plans. On that basis, why did the Attorney-General say to Andrew Mills on 7 March that he was not going to issue a direction unprompted? Indeed, that suggests that the Attorney-General was considering doing so. Why won't the Attorney-General tell the truth on that matter? He was indeed planning to issue a direction to stop the Australian tax office from intervening.