George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

and with the support of the Greens in the Western Australian parliament, tried to do was to bring the matter to an end by an all-up statutory settlement. That statutory settlement was the subject of the High Court proceedings of which we have heard so much. But the first thing to remember about this is that this was a nonpartisan attempt to bring to an end more than 30 years of seemingly endless litigation on which, according to some estimates, almost half a billion dollars of lawyers' fees, liquidators' fees and insolvency practitioners' fees had already been wasted. So the motive was pure.

It is said by Senator Watt and others that Mr Hockey entered into a deal with the Western Australian government in relation to the High Court proceedings. That is false. The evidence before the references committee could not have been clearer. Senator Watt himself asked the question about an arrangement having been struck, and Mr Mills from the Australian Taxation Office said this:

I might correct the record. The letters actually do not show that there was any arrangement.

He went on to say—Mr Mills, that is:

From all that we could read from the Treasurer's letter back to the Western Australian Treasurer … we were not compromised in any way in terms of what we believed was the action we should take.

Let me say that again. Mr Mills, the second commissioner of Taxation, said:

… we were not compromised in any way in terms of what we believed was the action we should take.

Now, Senator Watt knew that that evidence had been given before the Senate committee because he was the senator asking the questions, and yet he represented to the Senate this morning the opposite, that there was a deal, when he knew the only evidence was that there was not a deal. People can draw their own conclusions about Senator Watt's honesty, and we can be very satisfied that Mr Hockey has nothing to answer.

Secondly, the suggestion was made by Senator Watt and others that I had in some way interfered with the Australian Taxation Office. This was the evidence before the Senate committee, first of all from Mr Chris Jordan, the Commissioner of Taxation:

No-one sought to inappropriately or otherwise persuade us to discontinue from that view. … Whether or not people were having discussions outside of us, no-one ever sought to inappropriately influence the course of action that we had, continued and did.

That is the Commissioner of Taxation speaking on behalf of the Australian Taxation Office. Mr Mills, on 7 December, said:

The ATO have upheld our position as an independent administrator and independence in our decisions throughout the course of this matter. Neither the commissioner nor I, or any other decision-maker in the ATO, were lent on by a minister or their office or directed to do anything other than what we did.

Senator McKim asked some questions of Mr Mills on the same day about me. Senator McKim said:

Did he—

that is, Senator Brandis—

at any stage seek to dissuade the ATO from intervening?

And Mr Mills said, 'No.' That is the evidence and that is the fact, but you would not think so from hearing the speeches given by Senator McKim, Senator Pratt and Senator Watt. But that is the evidence and those are the facts.

This entire wasted morning is an argument about nothing. It is an argument about an instruction that was never given, about a direction that was never issued. The highest to which the case made by the opposition rises, on the basis of evidence from an officer earlier in the week who was not directly involved, was that he had heard some bureaucratic whispers. Honestly and truly, Senator Pratt, if that is the best you can do—and it is the best you can do—you should not waste our time.

Let me turn to the question of the circumstances in which the Australian government, through its ministers, claims protection from publication of its legal advice. Let me say again—as I said in answer to you, Senator Pratt, and others—that it is absolutely the standard position of the Australian government that its legal advice, like the legal advice of any private client, for that matter, is not made public. Senators have been misled, perhaps through ignorance rather than malice, by a selective quotation from Odgers', which, in the current addition of Odgers', the 14th edition, between pages 668 and 669, under the item 'Legal professional privilege', says this:

Legal advice to the federal government, however, is often disclosed by the government itself.

And it is the case that on occasions privilege is waived, but that is not the standard case, as you know, Senator. It continues:

Therefore, the mere fact that information is legal advice to the government does not establish a basis for this ground. 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.

The problem with the selective quotation of that passage from Odgers' is that it disregards the long discussion that goes before in relation to the various grounds of public interest immunity.

Senator McKim, you said in your contribution: 'The Senate does not accept a simple claim of public interest immunity; a detailed statement is required.' I accept that, Senator Watt, and I provided a detailed statement, which is the document I tabled this morning and which I will read into the record. What it represents is both a statement of the universal practice of all Australian governments since Federation in relation to legal advice, subject in exceptional circumstances to waiver, I acknowledge, but that is something that is seldom done and is never done, nor should be done, if the advice to government is that the publication of the advice would prejudice the legal position of the Commonwealth.

So here are the detailed grounds, not of a legal professional privilege claim but for a public interest immunity claim. The selective quotation, as I say, from Odgers' of the passage that deals with legal professional privilege ignores, perhaps through ignorance or perhaps deliberately, the broader ground of public interest immunity, which Odgers' also addresses and which is the ground of the claim made in detail on behalf of the Commonwealth by me. Let me read it into the record. We begin with the statement of the former Labor Attorney-General Senator the Hon. Gareth Evans QC:

… [n]or is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle …

That was what Senator Gareth Evans, the only Labor QC who has sat in the Senate as Attorney-General, said. To similar effect were the remarks of another former Attorney-General, the Hon Daryl Williams QC:

… I am going to offer the traditional response. I am not going to speculate about advice that the government may or may not have received nor am I going to provide any of that advice …

Another former Labor senator and shadow Attorney-General, who is also a member of the bar, Senator Joe Ludwig, of recent memory, put the position as follows:

To the extent that we are now going to go to the content of the advice, can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.

The Hon. Philip Ruddock, another former Attorney-General, stated:

… It is not the practice of the Attorney to comment on matters of legal advice to the Government. Any advice given, if it is given, is given to the Government …

Those are clear statements from both sides of politics which indicate what, as I have said, is an invariable practice which stretches back to Federation, and I as the Attorney-General would be in outrageous breach of my obligations to the Commonwealth to depart from what has been the invariable practice of the Commonwealth executive government since Federation.

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. The fact is that, in general, such matters are not disclosed. Plainly, as I acknowledged at the hearing, there may be exceptional circumstances in which to depart from that general practice. However, no such exception arises in the present context. On the contrary: as I will explain below, the present case is one in which the potential harm of disclosure is particularly acute, and the grounds for non-disclosure thus particularly strong.

The public interest in non-disclosure

It is not in the public interest to depart from the established position that has been maintained over many years by successive governments, from both sides of politics, not to disclose privileged legal advice. Absent exceptional circumstances, it is essential that privileged legal advice provided to the Commonwealth remain confidential. Access by Government to such confidential advice is, in practical terms, critical to the development of sound Commonwealth policy and robust law-making.

The High Court of Australia has repeatedly affirmed that there is a public interest in maintaining the confidentiality of legal advice. In Grant v Downs, Stephen, Mason and Murphy JJ stated:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers.

It has further been recognised that the doctrine of legal professional privilege itself arises from a weighing of the public interest for and against disclosure. In Waterford v Commonwealth, Mason and Wilson JJ opined:

Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception, the public interest in "the perfect administration of justice" is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required.

That view was reaffirmed by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation. Their honours succinctly stated the rationale for the privilege: it "exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers."

It follows from these observations that the specific harm that the doctrine seeks to prevent is the harm to the administration of justice that would result from the disclosure of confidential interactions between lawyer and client.

It also follows that to invoke the doctrine of legal professional privilege is to identify the specific harm to the administration of justice that the doctrine seeks to prevent.

Here, the Committee's questions go to the heart of the Commonwealth's approach to constitutional litigation in the High Court. Disclosure of advice in this context would mean that in some of the most sensitive litigation faced by the Commonwealth — constitutional litigation with a State — the Commonwealth could no longer be assured that its dealings with its lawyers would remain confidential.

I do not think any senator would be so bold as to dispute that that is a detailed statement of the grounds of the harm the Commonwealth points to and of the legal and principled bases of the doctrine. So please, Senator Pratt and others, don't by taking out of context a sentence in Odgers'about legal professional privilege try and obfuscate the fact that the basis of the claim to prevent harm to the Commonwealth is based on the broader ground of public interest immunity, also discussed by Odgers', which you conveniently neglected even so much as to mention.

There is nothing to be found in relation to this matter. The claim for public interest immunity based upon the character of legal advice taken by government is utterly orthodox. When all of Odgers' is read, it is not inconsistent with Odgers' discussion of the public interest immunity ground, and I would be derelict in my duty as the Attorney to protect the legal interests of the Commonwealth to do other than as I have done.

Question agreed to.