Andrew McLachlan (SA, Deputy-President) | Link to this | Hansard source

Pursuant to order, I call on Minister Watt to provide an explanation.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) | Link to this | Hansard source

The government affirms the terms of the public interest immunity claim made in respect to the Senate order of 15 June 2023 relating to the resignation of Justice Meagher as the President of the Administrative Appeals Tribunal.

The government also deeply regrets the grubby attempt by the opposition and the Greens political party to draw a justice of the Federal Court of Australia into a political controversy. It is almost without precedent to use the procedures of the Senate to examine matters concerning a judge in this way. The only precedent that comes to mind is the disgraceful attempt by former Liberal senator Bill Heffernan to use the Senate to besmirch the reputation of a justice of the High Court. Those acts were rogue acts done without the support of the Liberal Party. In contrast, the motions moved by the Liberal Party in relation to Justice Meagher were moved here by the shadow Attorney-General, Senator Cash. Senator Cash demonstrates time and time again that the modern Liberal Party is incapable of viewing any significant matter of public policy through any prism other than the prism of self-interest.

Not so long ago, the AAT commanded universal respect. Its integrity and independence were lauded by politicians of all political persuasions, by members of the community and even by High Court judges—one of whom, the late Sir Gerard Brennan, served as the AAT's inaugural president between 1976 and 1979. In 2006, the former Liberal Attorney-General Philip Ruddock said that the AAT led the world in administrative law innovation and best practice. It is inconceivable that any Commonwealth Attorney-General, Liberal or Labor, could make remotely similar comments now. That, in large part, is because a series of Liberal Attorneys-General broke the AAT. They trashed it. They treated it like a cash cow for their Liberal mates. When Labor was last in government, appointments to the AAT were made in accordance with a publicly accessible merit based selection process. However, after the Liberals came to power in 2013 they dumped the merit based selection process and, over the course of almost a decade, appointed at least 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process, including some individuals with no relevant expertise or experience.

Unfortunately, a series of Liberal Attorneys-General, like Senator Cash and Christian Porter, made non-merit-based appointments to the AAT, because for them and their Liberal colleagues the AAT was there to serve the interests of the Liberal Party and its mates, not the Australian community. The former coalition government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making. Senator Cash and her colleagues cared so little about preserving the actual or perceived independence of the AAT that they even appointed active lobbyists as members. Remember, the job of an AAT member is to conduct independent merit reviews of government decisions, yet Senator Cash and her colleagues thought it was appropriate to spend taxpayers' money to appoint Liberal aligned lobbyists as AAT members while those individuals were also being paid by corporate interests to influence government decision-making.

In December last year, the Albanese government announced the abolition of the Administrative Appeals Tribunal. That decision was not taken lightly, but it was made necessary because of the actions of the former government and those former Liberal Attorneys-General. Every senator in this place who supported this motion by Senator Cash, including every member of the Greens political party, should hang their heads in shame, because what they did by supporting the motion was to align themselves with Senator Cash and the Liberal Party's campaign to protect the Liberal Party's stack of the AAT. What Senator Cash and her Liberal colleagues did to the AAT was a disgrace. Tens of thousands of the most vulnerable people in Australia rely on the AAT each year to independently review government decisions that have major and sometimes life-altering impacts on their lives—decisions such as whether an older Australian receives an age pension, whether a veteran is compensated for a service injury or whether a participant in the NDIS receives funding for essential support.

Not on this matter and not on any matter will be Albanese Government take lectures from the Liberal Party on integrity or transparency—a Liberal Party that, while in government, was led by a prime minister who appointed himself to secret ministries; that contained a cabinet that endorsed, defended and doubled down on the illegal and disgraceful robodebt scheme; that failed to honour a commitment to establish an anticorruption commission; and, of course, that contained ministers whose offices leaked police raids on union premises, jeopardising police investigations. Senator Cash and the Liberal and National parties have no credibility whatsoever on integrity matters, and we won't take lectures from them now.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I move:

That the Senate take note of the explanation.

This motion is not about the coalition. It's not about their stack of the AAT. Indeed, the Greens are on the record as being deeply concerned by the politicisation of the AAT. This motion is about the current Attorney-General. It's about a meeting that was arranged on behalf of the current Attorney-General. An invitation was made by the AG to meet with Justice Meagher and Michael Hawkins, the president and registrar of the AAT respectively, on 25 November 2022. That's what it's about. It's about a meeting between the Attorney-General and the registrar and the president of the AAT on 25 November 2022, and the reason we want to know what occurred at that meeting is that, following that meeting and, it appears, as a result of that meeting, the president resigned.

The president is a statutory officer, protected with tenure and not able to be removed by the Attorney-General. The president can only be removed by a resolution passed by both houses of this parliament. That is to prevent the politicisation of the AAT. It is to protect the AAT. It is to protect the independence of the AAT. We found out not in a document volunteered by the government in estimates. After the house moved the resolution calling for papers, we found out that it was as a result of that meeting on 25 November 2022 between the Attorney-General and the president that the president resigned. And we know this because we finally have the communication written from the president to the Attorney-General, and I will just read it onto the record. It's from 30 November 2022 and it reads: 'Dear Attorney, having regard to our meeting on Friday 25 November 2022, I inform you that I am today offering my resignation as President of the Administrative Appeals Tribunal to the Governor-General. I have made myself available to the Chief Justice of the Federal Court to sit as required there.'

'Having regard to our meeting on Friday 15 November 2022.' What happened in that meeting? The Attorney explained what happened in that meeting. The Greens may not have chosen President Meagher to be the president of the AAT. We may have chosen somebody else. We may have chosen someone with different experience. But this isn't about the choice of President Meagher to head the AAT. This is about the removal from office of the president of the AAT. This is about ensuring the independence of the AAT and ensuring there's no political interference with it and ensuring that no Attorney-General can at their whim just remove somebody from a statutory office when it's protected by legislative tenure.

So, when we hear from the minister that they will produce nothing about that meeting, and when they rely upon a claim of privilege which is based upon preserving the confidentiality of communications between the Attorney-General and statutory office holders, there's no such privilege. There's no such immunity. It's not known to the law. It's not known to this house. It's not a basis to refuse the production. If nothing untoward happened in the meeting, show us the minutes. If nothing untoward happened at all, please just show us what occurred in the meeting.

Far from this motion being a politicisation of the AAT, this is a motion designed to ensure the integrity and political independence of not just the president of the AAT but any other statutory office holder that is within the remit of the Attorney-General's jurisdiction. This is about ensuring independence and ensuring that people with tenure and statutory positions cannot be removed, if that's what happened, at the whim of the Attorney-General or the Prime Minister or any senior minister. If there's nothing to be troubled about, show us the documents, Attorney. Show us what happened in that meeting.

Paul Scarr (Queensland, Liberal Party) | Link to this | Hansard source

I, too, rise to take note of the minister's response to the resolution passed in this place that documents be produced and the claim of public interest immunity. It is very disappointing to see Senator Watt come into this place and attempt to defend the indefensible. There is a very, very serious question which the Attorney needs to respond to, and that is, to put it very, very precisely: what happened in meeting room 3 on 25 November 2022 when the Attorney and his chief of staff met with then president of the AAT, her Honour Justice Meagher? What happened in that meeting room? That is a legitimate question that all senators have a right to ask the Attorney with the reasonable expectation that he will engage with the question. There are extraordinary issues arising from this matter. Quite often Senator Shoebridge and I are on the same page in matters of process, governance and in the importance of our institutions, including this place, the institution of the Senate. Quite often we are on the same page. I absolutely agree with many of the comments he has made in this respect, including the public interest in knowing what happened in that meeting between the Attorney and the then president of the AAT, who was a member of the Federal Court. This has nothing to do with past matters involving past High Court judges and past senators, absolutely nothing. It has direct relevance in terms of what happened in that meeting on that day.

I refer to some of the testimony we received before the Legal and Constitutional Affairs Committee in estimates in May 2023. In fact, there were two meetings on 25 November 2022 in the Attorney-General's office in Sydney or in the Commonwealth meeting offices in Sydney, Meeting Room 3. The first was attended by Her Honour Justice Meagher with the Attorney and his chief of staff between 10:15 and 10:45 on that day. The second was attended by the Attorney, his chief of staff, with the registrar of the AAT, Mr Hawkins, half an hour later. This is something extraordinary which Mr Hawkins, the registrar, brought to the attention of the committee during the course of estimates, after he was asked questions in relation to what happened in the meeting he had with the Attorney and the Attorney's chief of staff. This is what he said in answer to a question from Senator Cash, who asked, 'Can I ask what the meeting was about?' Registrar Hawkins responded, 'I would like to tell you that the Attorney prefaced the meeting by saying it was cabinet in confidence and confidential, and that I wasn't authorised to speak about it with anyone, so could I take that on notice?' Senator Cash then asked, 'It was cabinet in confidence and confidential? Have you ever been told that before in relation to any meetings that you had?' Mr Hawkins: 'No, it was certainly the first time I've been told that and that's why I'm particularly reluctant to discuss it.' Senator Cash: 'I accept your reluctance. Are you a member of cabinet, Registrar?' Mr Hawkins: 'No I'm not.' How can the discussions held between the Attorney, his chief of staff and the registrar of the AAT be cabinet in confidence? It's absolutely extraordinary.

I went and had a look at the cabinet handbook. Who is the secretary of the cabinet? It is the Attorney-General, who claimed cabinet in confidence in relation to a discussion with the office holder of the AAT. Does it have any comment at all in relation to cabinet-in-confidence discussions with people totally external from the cabinet? No, it doesn't. Of course it doesn't. It's absolute nonsense. Yet we have no explanation whatsoever from the minister's response today as to how a discussion between the Attorney, with their own chief of staff and the registrar of the AAT could be cabinet in confidence. This is extraordinary. There are serious, serious questions to be asked about what happened on that day, 25 November 2022, and the Attorney should carefully reflect on how he responds to the questions raised in this chamber.

Slade Brockman (WA, Liberal Party) | Link to this | Hansard source

I will continue where my good friend and colleague Senator Scarr left off because this is an extraordinary set of circumstances. You have a letter released under the order for production of documents where the former president of the AAT says, 'Having regard to our meeting on Friday 25 November 2022, I inform you that today I am offering my resignation.' So something happened in that meeting that triggered the resignation, but the Attorney-General, hiding behind a public interest immunity claim, won't give us the details.

Let's look at this public interest immunity claim that the Attorney-General—quite frankly, the chief legal officer in the nation and someone who should know better—is relying on. On the one hand, he's relying on this impediment to future communications between statutory office holders and ministers. To be clear to those listening, this is not an accepted ground for a public interest immunity claim. It has never been accepted by this place. It has never been tested in the courts as acceptable grounds for a public interest immunity claim. In fact, it seems to have been made out of whole cloth. There is no mention of such a claim in Odgers'. Quite frankly, as someone who's had a fair bit to do with PII claims over a number of years, it's not one that I have ever heard of before.

The other one is perhaps even more puzzling. It claims that it would disclose deliberations of cabinet. As Odgers' makes very clear, this is a very narrow, very limited public interest immunity claim specifically about the deliberations of cabinet. To give an example, in 2016 an order for the production of documents regarding a submarine tender process was refused, but, later, that document became available, because the cabinet decision related to that document had been made. If this public interest immunity claim is truly about the deliberations of cabinet, then they have been overridden by the action of time—by the decision to make changes in the leadership of the AAT. Even if that was the claim, the effluxion of events means that that claim would lapse with time, as it clearly now has with the resignation of the former head of the AAT and the putting in place of a new head. We have a tissue paper of claims by a government and, particularly, by an Attorney-General who should know better but who is hiding behind claims of public interest immunity. At the same time, he is championing this Labor government as one that has the virtues of transparency and openness. It clearly doesn't live up to its own rhetoric. There is clearly something to hide here, and the Senate should demand that these documents are released in full with no redactions apart from those designed to protect members of the Public Service—certainly with no redactions that are designed to protect ministers or the Attorney-General.

Question agreed to.

(Quorum formed)