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

First of all, I should point out to the Senate that neither I nor my office nor, so far as I can establish, the government received any notice of this motion by Senator McKim to suspend standing orders. I know that Senator McKim hasn't been here for very long, but it is a longstanding courtesy of this chamber that a motion of this kind is only moved after notice has been given. I see Senator McKim giggling away up there on the crossbench. Senator McKim, if you're not prepared to extend your colleagues the ordinary professional courtesy that is always extended by colleagues in this chamber to one another, despite party differences, you do not belong here.

The motion is a motion to suspend standing orders so as to take note of the response of the government to an order to produce documents. The order to produce documents sought the production of legal advice—specifically, Solicitor-General advice. It is well known to every member of this chamber that, as a matter of course, governments do not publish their legal advice. That is a practice observed by Labor governments and coalition governments alike. The principle, which was stated by a former Labor Attorney-General, Gareth Evans QC, some years ago, is this:

Nor 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.

Former Senator Evans said that in this chamber on 28 August 1995. The practice to which former Senator Evans then referred is a practice that had been observed by every Australian government since federation and, although that statement was made in 1995, it has been observed by every Australian government since, including, most recently, by the Gillard government, when Senator Ludwig, who represented the Attorney-General of that government, during an estimates hearing on 26 May 2011 said:

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.

And that statement is not only correct; it is uncontroversial—indeed, it is canonical.

Now—on no notice whatsoever—what Senator McKim seeks to do is to overturn 116 years of constitutional orthodoxy. Of course the government will not be producing legal advice because we will be observing the fundamental, well-established and never-questioned constitutional orthodoxy that governments do not produce their legal advice. And I look forward to hearing Senator Collins, who represents the Labor Party in the chamber at the moment, confirming that that is the Labor Party's understanding of the constitutional orthodoxy.

The question of Mr Joyce was referred by the government, of its own free choice, to the High Court, sitting as the Court of Disputed Returns, on Monday of this week after receiving Solicitor-General advice and after having considered that advice. On the basis of the government's consideration of that advice, we have taken the position that we have taken. Nevertheless, the matter is going to be argued before the High Court in coming weeks and, because of that, of course it would put the parties in an impossible position if the legal advice on which the government acted, which was received confidentially, were to be published.