Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

What I am being asked to withdraw is what a Senate committee has found—that he did not consult. Frankly, those on that side should be holding this gentleman, this Attorney-General, to a higher standard. I am happy to come to the point about what evidence was given, but let me say this: the Attorney's assertion cannot stand. It is simply unable to stand on the basis of the facts found by the committee. I will come to the consultation point. I want to start first with the independence point.

The former Solicitor-General pointed out that the direction was a significant change to longstanding arrangements. In his submission to the Senate committee, he said:

... it is critically important that persons such as the Governor-General, Prime Minister, and officers of Parliament are able to approach the Solicitor-General for advice in an uninhibited fashion, and in respect to questions framed by them and not by others.

He went on to say:

The Direction undermines that role insofar as it permits an Attorney-General to deny access to the Solicitor-General and has the potential to discourage persons and bodies from seeking the Solicitor-General's advice.

The best way to understand this direction is as a power grab by Senator Brandis. The best way to understand this direction is as a bid to undermine the independence of the Solicitor-General and to control the flow of legal advice.

I again refer, as did Senator Watt, to the evidence of a former Solicitor-General, the long-serving former Solicitor-General Dr Gavan Griffith QC, who in his submission really brought home the seriousness of Senator Brandis's attack on the independence of the office. He said that, if the direction were implemented, it would convert the office into one of 'closet counsel' within the Attorney-General's political office. Dr Griffith said the direction would have a chilling effect on perceptions of the integrity of the office of Solicitor-General. He said:

The uncomfortable image of a dog on a lead comes to mind.

He concluded his submission by saying:

I regard the content and intent of the Directions as effecting the practical destruction of independent office of Second Law Officer within the Australian constitutional context.

Some of those opposite pride themselves on being conservatives. Well, conservatives preserve institutions. Conservatives preserve institutions and conventions. What you have is a government whose leader in this place is seeking to undermine an institution that has served Australia well. Those on that side who call themselves conservatives should have done something and should do something about it.

I turn now to the issue of legal validity. I will not spend too long on this, but I would make three points. First, legal experts have advised that the relevant provision of the Judiciary Act does not allow the Attorney-General to issue directions affecting the functions of the Solicitor-General. If that opinion is correct, it would mean that the direction that is before the chamber is beyond power—ultra vires—and legally invalid. That was a view put to the committee by both the then Solicitor-General, Mr Gleeson, and by Dr Griffith QC. Second, I would make the point that the committee also received advice that the direction's attempt to curtail the circumstances in which the Solicitor-General could provide legal advice was in conflict with the Law Officers Act—in particular, section 12, which provides that the Solicitor-General's functions include acting as counsel for, amongst others, ministers and officers of the Commonwealth.

Finally we get to the consultation point, because, of course, this has occupied some debate in this chamber. The direction was argued to be legally invalid because the Attorney-General issued it without having the appropriate consultations which are mandated—that is, required—by section 17 of the Legislation Act. I do not think that any reasonable person could look at the evidence that was presented to the Senate committee and back Senator Brandis's version of the event. No reasonable person could look at doing so because it is quite clear that the evidence established that there was no such consultation, and the evidence of Mr Gleeson was clear on that. I will turn to that point. Mr Gleeson said:

I had no advanced knowledge that the direction would be made, no notice of what would be in the direction and no opportunity to put a submission to the Attorney-General or the department as to my views on the legality or merits of the direction.

He went on to say:

I was not given an opportunity to comment on the content of direction and finally there was no consultation with me at any time.

'There was no consultation with me at any time'! I ask this Senate: who would you believe? Would you believe Senator Brandis or would you believe in this context Mr Justin Gleeson?

The reality is that the conduct of this matter raises serious questions about Senator Brandis's fitness to hold office as Australia's first law officer. He sought to gag the Solicitor-General; he sought to curtail independent legal advice to the Commonwealth; he embarked on a power grab through, frankly, underhanded and deceptive conduct; he went behind the back of the second law officer. All of this led to an unprecedented breakdown in the relationship between the first and second law officers of the country; a breakdown in trust which has prompted an honourable and decent man to resign. Frankly, it should be of concern to all in the Senate that this Attorney-General, despite all of this evidence, continued to mislead the Senate in the explanatory statement, which he tabled with the direction in which he continued to assert that he had consulted with the Solicitor-General. I think that is demonstrably misleading of the parliament.

Really, there is no more serious matter when it comes to the integrity of this parliament in carrying out its legislative functions. A senior member of the executive government, exercising delegated legislative power, misled the parliament in the formal explanatory statement he tabled with the proposed legislative instrument. It is not conduct that can be allowed to stand, because it undermines the role of the Parliament and particularly undermines the rights of the Senate. We have, as a parliament, a right to scrutinise the executive government's exercise of its powers to make delegated legislation.

In conclusion, this direction should be disallowed because it represents an attack on the independence of the Solicitor-General and, indeed, on the rule of law. It should be disallowed because the minister whose job it is to uphold the law has been exposed as flouting the law. The direction should be disallowed because, in misleading the Senate, the Attorney-General has breached a fundamental requirement of our democracy, the principle of ministerial accountability to the parliament. Finally, it should be disallowed so that this Attorney-General receives the message loud and clear: that it is unacceptable to the Senate. I commend the motion to the Senate.