Senate debates

Tuesday, 11 October 2016

Questions without Notice: Take Note of Answers


3:03 pm

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | | Hansard source

This is the first time I have had the opportunity to congratulate you in your new role, Madam Deputy President.

I move:

That the Senate take note of the answers given by the Attorney-General (Senator Brandis) to questions without notice asked by Opposition senators today relating to the Solicitor-General.

As you may well have noted, all of the questions from the opposition were to Senator Brandis. One of those questions, of course, was a question that I, in fact, asked. Because of the way we have to ask questions in this place, I did not get the opportunity to put both the statements of Senator Brandis about one particular matter directly with those of the Solicitor-General. But I would like to do that in the course of taking note.

I would like to go back to the quote that I made regarding Senator Brandis's comments on 1 December in respect of a citizenship bill that was passed in this parliament. He said:

These changes have been reviewed by the Solicitor-General and he has now advised that they have a good prospect of being upheld by the High Court.

I would like to juxtapose that to the advice that was given by the Solicitor-General 19 days earlier. He said: 'The bill in question reflected new changes that were made without seeking my further advice.' Putting those two statements together, both of them cannot, of course, be right. Both of those statements cannot be right. One of them has to be wrong.

In this place, it is true that we all have an obligation to tell the truth. That is the first obligation. Ministers, I would submit, have an even higher obligation to tell the truth and make sure that nothing they say seeks to mislead or is incorrect. The highest obligation, I would submit to you, Madam Deputy President, is on the Attorney-General—the first law officer of this country. Attorneys-general have special obligations as a result of their training. They have special obligations to this parliament and to the people of Australia. The reality is: both of those statements that I read out a moment ago cannot be correct. One of them has to be wrong. I think what this parliament and what this Senate wants to know is: who is not telling the truth about this matter? It is a very fundamental issue. We have, on the one hand, the first law officer of this country saying one thing about a set of events and, on the other hand, we have the No. 2 law officer, the Solicitor-General, saying something quite fundamentally different. Both of them cannot be right.

What this parliament needs an answer to—I would submit to you, Madam Acting Deputy President—is the answer to the question: who is telling the truth? In one of his answers Senator Brandis said: this is all semantics. It was not an answer to my question. He is saying it is all semantics. I would submit to you, Madam Acting Deputy President, this is not an argument about semantics. There is quite a fundamental difference here. I will just repeat what Senator Brandis said. He said: these changes have been reviewed by the Solicitor-General and he is now advised that they have a good prospect of being upheld by the High Court.

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

Identify the changes you are referring to.

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | | Hansard source

I have referred to it already.

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

Identify the changes.

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | | Hansard source

You can't question him.

Photo of Gavin MarshallGavin Marshall (Victoria, Deputy-President) Share this | | Hansard source


Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | | Hansard source

He is not one of your lackeys.

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | | Hansard source

Thank you.

Senator Brandis interjecting

I am giving the speech, Senator Brandis.

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

I'm trying to help you.

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | | Hansard source

I know you are trying to help me, but I do not need your help, Senator Brandis. I do not need your help.

Senator Brandis interjecting

Senator Brandis, the person who needs some help in this debate is you. You are the person who needs some help. Senator Brandis, you are the person who needs some help in this debate. You need some help because—

Photo of Doug CameronDoug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | | Hansard source

He's slippery.

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | | Hansard source

That may be true. You need some help because there is a fundamental inconsistency between the proposition that you are putting to this Senate and the proposition that— (Time expired)

3:09 pm

Photo of James PatersonJames Paterson (Victoria, Liberal Party) Share this | | Hansard source

Can I add the congratulations of my fellow government senators to the new Deputy Leader of the Opposition in the Senate, Senator Farrell. He is an inspiration to us all. If anyone can come back in the way that he has there is hope yet for all of us. I will note that I hope that his contribution to the chamber today was just a reflection of his day one nerves and that his contributions will improve in quality and consistency from this day forward, as I am sure they will.

Before I address the direct point raised in questions today and take note of the answers given, I would just like to make a general observation, with the Senate's indulgence, on the topic chosen by those opposite to focus on yet again today in question time, as they did yesterday in question time, and that they have chosen to focus on yet again in their motions to take note of answers today, as they did yesterday. This is a parliament which deals with weighty issues. This is a parliament which deals with important issues. This may be an important issue but it is by no means the only important issue that we have been talking about today or that we will deal with this week. I note for the record that the opposition has asked no questions today on the government's legislation to protect volunteers, with the CFA bill that passed the Senate last night. They have obviously lost interest in that issue. I note that they have asked no questions at all about the government's announcement today of the structural separation of the Australian Submarine Corporation. The government announced reforms in that area today. I note that they have asked no questions about the important reforms that Senator Birmingham, the education minister, has announced to VET to ensure that taxpayers' money is being used as it was intended to be used, and that the best value for money is being sought. I note that they have a particular and special interest in this issue. They are entitled to follow it, and I realise it is not my role as a senator to give them tactical advice. But, I tell you, you are flogging a dead horse on this one, and it is becoming increasingly clear that you are.

One other general observation I would like to make about this issue is on the understanding of consultation. Even in my short time in the Senate, I am coming to realise that people in this place have a very different idea of what constitutes consultation. I will give one example without identifying the parties involved, because it is not fair to them. Last week in a Senate committee hearing, we had a lobby group come and give evidence about a change in the law which they had an interest in. They stated to the committee that they had participated in no consultation at all and that this was a great disappointment to them. They were probed with a few questions about this issue of consultation and they more or less came back to us and assured us that there had been no material consultation. Later on, the department itself appeared before the committee. We obviously sought to clarify this with them, because it would be a bad thing if the department had not done any consultation. The department—and I am paraphrasing; I do not have the exact details in front of me—was able to inform the committee that they had in fact sent a letter to the group in question, that they had a direct meeting with the group in question about the issue in question and that one of the members of that group was on an advisory council that the government regularly seeks advice from on this issue. So they clarified for the committee that there was in fact consultation, even though the group in question did not feel that there had been sufficient the consultation. It is possible in this world that we have differing interpretations of what was said at a meeting and what exactly constitutes consultation, but from where I sit I am completely satisfied that the appropriate process was followed in this instance and that the Solicitor-General was appropriately consulted, as he is required to be.

As the Attorney-General has noted in his answers today and yesterday when this question has been raised, as well as in the media, the exact appropriate process was followed in this instance. The law does require that the Attorney-General consult the Solicitor-General in this instance, and he did so. Let me spell out some of the details of that in the remaining minute that I have. Over the years, a practice has developed contrary to the Law Officers Act that the Solicitor-General had been receiving briefs directly across government rather than through the Attorney-General, as it was intended when the office was established in 1916 for the purpose of assisting the Attorney-General in the performance of his duties. The new direction establishes a whole-of-government procedure that gives effect to section 12(b) of the Law Officers Act 1964. The guidance note is simply the document that is circulated within the Public Service to give effect to the legal services direction. These arrangements do not limit the independence of the Solicitor-General. They do nothing to change the effect of the Law Officers Act.

3:14 pm

Photo of Katy GallagherKaty Gallagher (ACT, Australian Labor Party) Share this | | Hansard source

I thank Senator Paterson for his contribution and his advice and, in some sense, the permission that he has given us to pursue this issue. I am not sure we were seeking it, but it was given. It is no wonder that government members want this issue to go away and pretend that there is nothing to see here. I can see attempts to diminish this as an insignificant matter and that there are many more important matters—and, to some degree, that argument holds. There are many, many other important matters that the Senate will continue to discuss over this sitting week. But let's not pretend that the open disagreement and potential misleading of this chamber is not a significant matter that every senator in this place should be concerned about and should be wanting to pursue.

We know that on 4 May this year the Attorney-General issued a direction known as the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. The substance of the actual direction is for a debate on another day. The issue that we have been pursuing and will continue to pursue is whether the statement by the Attorney-General that he consulted the Solicitor-General on this legal instrument is true. It is about whether the explanatory statement to that direction—which specifically confirms that the Attorney-General had consulted the Solicitor-General on the individual legal direction itself—issued in the name of the Attorney-General, signed off personally by him and tabled in this chamber, is actually correct. It is about whether information tabled in this chamber, the Australian Senate, by the Attorney-General of Australia can actually be believed.

What we have learnt in this extraordinary episode, which sees the first and second law officers of the country in open disagreement, is that we have a new standard being set by this Attorney-General. For one, there is a brand-new legal definition of 'consultation.' Under the new 'Brandis standard', consultation is now defined as having a meeting about one subject and then trying to pass that meeting off six months later as consultation as defined by relevant legislation on a completely different subject altogether. What a ridiculous proposition to argue. No-one believes it, because it is simply unbelievable. Perhaps the only people that do believe it are the Attorney-General, himself, and those who occupy the parallel universe that he clearly exists in.

What we know is that the Solicitor-General sought a meeting with the Attorney-General to ensure that his advice was sought on matters of importance, to ensure that requests for advice were made in a timely fashion, to ensure that advice was sought in the case of legislation where further amendments were being made and to ensure that the Solicitor-General's advice was represented accurately in public. These are the issues that the Solicitor-General sought to prosecute in the November meeting. For the Attorney-General to pass off the November meeting as a consultation on the content of the legal direction, which was tabled in this place and which sought to significantly constrain the ability of the Solicitor-General as an independent officeholder, as being something that was discussed at that meeting is clearly incorrect. Indeed, the staff notes that have been released by the Attorney-General confirm that at that meeting no mention whatsoever was made of a legally binding direction which concerned the performance of the functions of the Solicitor-General or the requirement that the Attorney-General's advance approval must be granted before advice from the Solicitor-General could be sought.

It is very clear the direction was never mentioned, neither in the November meeting nor, indeed, in the meeting held on 23 March on other matters that were raised. There was no discussion of the direction. There was no discussion of the content of the direction. The Attorney-General's own letter on 4 May acknowledges this by mentioning the direction with the words, 'I have also issued an amendment to the Legal Services Direction 2005 and enclose a copy of the document.' It is clear from the letter that this is the very first time the Solicitor-General was made aware of it.

I asked that question in question time today. The Attorney-General has undertaken to come back with an answer, but, if you go on the facts as outlined in the submission from the Solicitor-General to the committee, it is very clear that the first time he was made aware of the legal direction was on 4 May—after it was tabled in this place—in a letter from the Attorney-General advising him that was the case. That is central to the problem that we have here with what Senator Brandis has said. (Time expired)

3:19 pm

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

Can I also add my congratulations to Senator Farrell on his election to the position of Deputy Leader of the Opposition in the Senate. Indeed, Senator Farrell has a huge job ahead of him. It is worth reminding ourselves that at the most recent federal election the Australian Labor Party recorded its second-worst primary vote in its history. So by any measure, Senator Farrell and indeed the whole Senate Labor team here in the Australian Senate have a massive job ahead of them. Senator Gallagher has made a very, very important contribution, and senators might have missed it. She conceded Senator Paterson's point that there are more important issues to be talking about.

Photo of Katy GallagherKaty Gallagher (ACT, Australian Labor Party) Share this | | Hansard source

No, I did not.

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

Yes you did, Senator Gallagher. You conceded Senator Paterson's very, very good point that there are more important issues to be making and to be talking about in the Australian Senate today, this whole week and into the future. I just wish you had embellished that admission and nominated some of them. Interestingly, in the Australian Senate today we had Senator Lambie talking about a very important issue—that is, the affliction of ice on young people in our community. That is a question Labor could have asked the government today. Senator Hanson-Young talked about job losses and lost investment opportunities in South Australia, taking a very different position to the one I would have taken but nonetheless bringing to the Senate issues around job opportunities and lost investment in South Australia. Labor spent its precious time in the Australian Senate gilding the lily. I will just explain that point briefly before I bore the Senate with the dry details of why there is no case for Senator Brandis to answer.

I say that Senator Gallagher is gilding the lily, because she is trying to suggest there was a six-month delay in correspondence in delivering on the meeting that was held on 30 November. In actual fact it is closer to four months. Indeed, in that four-month time period there was a delay of 14 weeks, because the Solicitor-General took 14 weeks to respond to the substance of the consultation he had with the Attorney-General.

I do not need to remind those listening today and, indeed, my Senate colleagues that the temptation in politics to embellish the facts, to gild the lily, is tempting. But at a time in our country's history—and I just want to come to what I think are some of the more important issues at the moment—when there are very real challenges facing young people afflicted with drugs, people addressing issues of lost investment and job growth opportunities in their home states, the Australian Labor Party in the Senate wants to spend its time gilding the lily, prosecuting a case against the Attorney-General where there is no case to answer. There is no conspiracy in this: on the record exists already a 32-page document that Senator Brandis, as the Attorney-General, has made publicly available to the Senate legal and constitutional affairs committee, which will spend Friday here in the Senate examining that evidence. There are no surprises, there is no conspiracy; but what we witnessed today was Labor's decision to spend its valuable time arguing issues where, to be frank, there is no case to answer and, to be more frank, are not the issues that are concerning Australians and Australian families at this important time.

Labor has cause for concern, because in that very prickly issue of industrial relations reform the coalition government achieved a sizeable victory last night in this Senate by securing the interests of volunteers in the country fire service in Victoria. Labor has a big challenge ahead of it in coming weeks as this Senate layers transparency and accountability over the trade union movement in a way that has not been done before, by debating the Australian— (Time expired)

3:24 pm

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Once again we have on display by Senator Brandis ample demonstration of what we have known for so long on this side of the house: that he does an awful lot of slippery talking, says nothing clearly and that this is a pattern that is repeated day after day. I did note today, however, that he has got himself into such a mess this week he began his answers with some discipline and a little reading from notes. The problem is the slippery story is getting so slippery now that even the enormous brain of Senator Brandis is having trouble hanging onto the storytelling that he is undertaking. This slippery storytelling has now become a feature of what we expect from Senator Brandis every day.

He admits to absolutely never making a mistake. Even though he has actually been censured here by the Senate, no-one would know because we have this self-aggrandising persona: 'I am perfect. This is the truth. You should never question me. Just trust me; it'll all be fine.' People are over the hubris and arrogance that is embedded in the kinds of answers that are being given to the Senate by the first law officer of the land. The Attorney-General is contemptuous in the way he has responded to questions that were put to him today—we could not call them answers.

I do note that at one point today Senator Brandis said, 'I am very careful in my use of language'. I believe that was in response to a question that was asked by Senator Gallagher regarding the Don Dale matter. 'Very careful in my use of language.' We also had him claim, once again, 'I have been a barrister for 33 years'. This appeal to the superiority of having such a wonderful education is not something that should be trotted out as a veil between him and the truth that the Senate deserves. 'Don't question me. I'm a barrister; I'm beyond reproach.' The senator, by the quality—or lack of quality—of his responses to questions today reveals that he should not hide behind that sort of a defence in future, that he is bringing disrepute to that profession by the way he is contemptuously not responding to questions properly here in the Senate.

The only person, it seems to me, who is clearly communicating on the issue of advice and access is the person who has flatly rejected the claims of the Attorney-General—that is, the Solicitor-General. He has expressed concerns that are widely held now, and the level of these concerns continues to grow because of the sorts of answers we are getting from Senator Brandis. The Solicitor-General is very concerned that processes were not followed; that he was not consulted on what he has called 'matters of high legal importance'. Indeed the Attorney-General had a nonresponse to my question today where I cited Professor Gabrielle Appleby, who said is it possible that in not seeking the Solicitor-General's responses the Attorney-General is in fact:

… shopping around for politically convenient opinions and not accepting the opinion of the statutorily independent, apolitical Solicitor-General.

That is the concern that is alive and well right now amongst the legal fraternity, that this Attorney-General is changing legislation, which we have heard referred to by the new senator for the Liberal Party over on the other side, that parliament as long ago as 1916 set up, which, with some wisdom, allows people, senior ministers, to go and get advice from the Solicitor-General. But this Attorney-General has decided that he knows better, that he should put himself—his barrister's experience of 33 years, his hubris, arrogance and sense of ascendancy—between ministers of the Crown and the advice that, up until he decided to put this order in, they were entitled to have. That is what we are seeing on display every single day.

The Senate is told constantly by Senator Brandis: 'Leave it to me. There's no problem here.' But we are not getting detailed and proper answers. The Attorney-General's response to Senator Gallagher's question in particular was shameful: arrogant in tone, lacking in transparency and denying accountability. When he was simply asked for a date, he refused to give it. This Attorney-General— (Time expired)

3:29 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Independent) Share this | | Hansard source

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 Lambie today relating to policies concerning illicit drugs.

Today I gave Attorney-General Brandis notice of my questions without notice regarding law changes to tackle ice addiction. I wanted to give him sufficient time to properly consider his answers and think about my argument for giving Australian parents, along with their family doctors, the right to involuntarily detox their children should those young people became addicted to ice. I am encouraged that he has given a commitment to consider my proposal carefully, and I will follow that up with a letter and a request for meetings. However, I am disappointed that, for the majority of his answers, he chose to read a prepared script which boasted about his government's so-called achievements. And I am very disappointed that, on my third question, he deliberately twisted his answer to give the impression that I was seeking his support to change the laws relating to drug dealers. While I am happy to talk about that issue as well, at a later date, all my questions clearly addressed the fact that Australian parents and their family doctors do not have the right, under existing state and federal laws, to involuntarily detox their children should they become addicted to ice.

As soon as a legally trained person hears the words 'involuntary treatment', an alarm bell goes off in their poor little head and they reach for a copy of the UN human rights charter. Lawyers have become so lost in their fight to protect the UN human rights charter that they forget the right of parents and medical professionals to protect children from the effects of a highly dangerous and addictive drug the likes of which we have never seen before. Indeed, very few lawyers will acknowledge that, under our existing state laws, there are provisions for involuntary medical treatment for patients suffering from severe mental health illnesses. They are called 'involuntary mental health orders'—people deemed by qualified medical professionals to be suffering from a mental health injury, and who are a danger to themselves and others, can be taken by the authorities to a medical facility for compulsory mental health treatment. This can all take place within the law and without breaching any fundamental UN human rights.

So the point of my questioning to the Attorney-General this afternoon was to remind him, Labor, Greens and crossbench senators that an important legal precedent has already been established that allows involuntary medical treatment for people who are not in control of their actions and may be a danger to themselves, and certainly a danger to others. I think it is fair to compare the actions and symptoms of someone addicted to ice to the actions and symptoms of someone who may be subject to existing involuntary mental health orders.

I have only my personal experiences and feedback from hundreds and thousands of concerned Australians to go by. I am not medically trained but I do know that, when someone is addicted to and under the influence of ice, they are certainly not themselves; they are not sane; I am not talking to a loved one anymore; all I am doing is talking to a drug. When you are trying to reason with an unreasonable, unpredictable, powerful and dangerous thing, you are trying to influence a person whose loving, caring self has gone missing; it is no longer there. They are replaced by a being who will do and say anything to feed an insatiable addiction the likes of which, I argue, we have never seen before. So if our laws allow medical professionals to order involuntary mental health treatment for patients who suffer from damaged mental health and are subject to dangerous, uncontrollable and unpredictable behaviour, why can't those same laws and medical process apply to our children, our most vulnerable and precious, who become addicted to ice?

Even with all the publicity, average Australians and politicians still do not understand how addictive ice really is. This failure to understand how addictive ice is has led to a situation where we do not have enough rehabilitation services or facilities and we do not have strong enough laws to allow for early intervention. So even if we could, by some miracle, deliver enough affordable rehab beds for all of Australia's ice-addicted children, under the current laws, if those ice-addicted children said they did not want to remain in rehab, they can just walk straight back out the front door. So the solution is to provide, firstly, affordable rehab beds; and, secondly, law changes which give parents the right to place their drug-addicted children in involuntary detox.

Question agreed to.