Wednesday, 9 November 2016
Questions without Notice
My question is to the Attorney-General, Senator Brandis. I refer to the Legal and Constitutional Affairs References Committee report tabled in the Senate yesterday, which states that the Attorney-General:
… has misled the Parliament by stating in the Explanatory Statement that consultation with the Solicitor-General had in fact taken place.
Will the Attorney-General today correct the record and admit that he never consulted the Solicitor-General in relation to the changes to the Legal Services Directions?
Honourable senators interjecting—
Well, Senator Pratt, I am aware in fact of two reports. I am aware of a majority report and I am aware of a minority report. And at risk of being accused by you, once again, of misleading the Senate, let me confirm and affirm very unequivocally that I did consult the Solicitor-General, and I demur entirely from the suggestion that I did not.
It is interesting to see who comprised the majority of this committee which, of course, is dominated by the Australian Labor Party. It consisted of—the people who put their names to this report from the opposition—Senator Pat Dodson, who did not show up on the day that the evidence from me and the Solicitor-General was being heard. It consisted of Senator Murray Watt, who gave a speech in this chamber, announcing his conclusions about the issue before the first hearing day. And it consisted of you, Senator Pratt, who in the majority report based your entire case on a passage from Alice in Wonderland! Indeed, this is an Alice in Wonderland report.
It rather reminded me—I dug out Alice in Wonderland this morning—that one of the main plot lines in Alice in Wonderland is of some crazy queen, the Queen of Hearts, running around saying, 'Off with his head! Off with his head!' before the trial commences and before the first word of evidence has been heard! That is you, Senator Pratt. It is Senator Dodson, who was not there; Senator Watt, who announced his conclusion before the committee convened; and you, Senator Pratt, whose case is based on Alice in Wonderland.
I think the Queen of Hearts was often saying, 'I often have thought six impossible things before breakfast,' and I suggest that is what you are asking us to believe.
I refer to the Humpty Dumpty precedent famously cited in the House of Lords decision Liversidge v Anderson, which provides:
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean, neither more nor less."
Does not this place deserve a little more respect than the Attorney General(Time expired)
Honourable senators interjecting —
Order on my right. Order! That includes you too, Senator Bilyk. I am very tempted to ask Senator Pratt to repeat her question because of the noise, particularly from the right, but I will call the Attorney-General and ask him to respond to Senator Pratt's question.
A point of order, Mr President. There was noise from this side, but only after the time for asking the question had expired. That is when the noise was heard, because Senator Pratt spent 30 seconds and did not even get to ask the question.
Senator Pratt, yes, I am familiar with Lord Atkin's judgement in Liversidge v Anderson and I am familiar with the quotation from Alice in Wonderland. In fact, can I share a secret with you, Senator Pratt: I was even thinking of quoting that passage myself in my submission to the committee in relation to some of Mr Justin Gleeson's evidence, but I refrained from doing so for fear of being thought flippant.
Senator Pratt interjecting—
Senator Pratt, I am more than amazed to find myself having a debate across the Senate floor with you about the meaning of a word. But if you recall, Senator Pratt, I did hand up to you an extract from the Oxford English Dictionary, which defined the word 'consultation' in eight different ways. Seven of them completely supported my recollection of the events, supported by the contemporaneous diary notes, and one obscure reference to which you refer did not.
Given that multiple eminent legal experts have given evidence that the Attorney-General's direction is beyond power and inconsistent with multiple acts of parliament and compromises the independence of the Solicitor-General, will the Attorney-General, like Humpty Dumpty, fall off his wall and resign?
Senator Ian Macdonald interjecting—
Senator, once again you misquote the evidence, as you did throughout the Labor Party written majority report, because it is not uniformly the case that eminent legal experts say that. In fact, as a matter of fact, Senator Pratt, one of the witnesses speaking on the proper interpretation of the meaning of 'consult' in section 17 of the Legislative Instruments Act, said that the extent of the obligation to consult is plainly entirely a matter for the lawmaker, and that evidence was uncontradicted. Yet you did not even refer to that in your report, and yet it went to the central issue of the case. And your report itself is self-contradictory, because what you find is not that there was no consultation but, to quote your words, 'There was no substantive consultation.' You are at liberty to form the view that there ought to have been more, but the extent of consultation required under the act, as the expert evidence showed, is entirely a matter for me.