Legal and Constitutional Affairs References Committee - Report


Senator IAN MACDONALD (Queensland) (17:12): This report is another sad part of an unfortunate history of the Senate Legal and Constitutional Affairs References Committee, which is now renowned for the inappropriateness of its inquiries and investigations. Nobody takes any notice of anything the majority of the committee ever reports on, because the references are always political references. They have nothing to do with the good order and management of the country, the economy or the nation. They are always a political witch-hunt, and regrettably this inquiry into the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 by this unfortunate committee is the same. I have expressed concern before that the Senate committee system, which used to have a good reputation for producing quality reports that really assisted the nation, is now bogged down in a continual witch-hunt, where the three Labor members and the Greens member of the committee outvote the two government members. They do what they like. The committee is not a committee of the parliament or of the Senate. It is a committee of the Labor Party and the Greens, wasting Senate resources on political witch-hunts which go absolutely nowhere.

The only report worth reading is the one put in by Senator Reynolds and me as the government members on the committee. It sets out in detail, for those who might be interested, why the recommendations of the Labor and Greens senators were so inappropriate and just a political exercise. I am not going to go through that in detail. It is there for anyone to read. If you want to understand the real significance of this whole issue, read the coalition senators' report.

In the few minutes left to me I want to make some broader observations. The Solicitor-General resigned his post on 24 October, during the course of this inquiry, and I think that says something in itself. Coalition members commend the Solicitor-General for taking this decision because, in our view and the view of any reasonable observer, the Solicitor-General's position had become untenable and his resignation was an unavoidable consequence of the public inquiry. The Labor Party and the Greens set up this inquiry for no other reason than to attack Senator Brandis, but what happened? Thanks to the Labor Party and the Greens, a man who has devoted much of his life to public service was forced to resign—a man who the Labor Party, I might say, appointed to his position in the dying days of the Rudd-Gillard-Rudd government. You could almost say that, rather than getting Senator Brandis as they tried to do, they got their own man and he did the only thing that was open to him: he resigned from his position.

The evidence showed that the Solicitor-General had made a couple of what I will euphemistically say were unfortunate decisions. As a lawyer, he knows that it is not appropriate for him to tell the world about who he is giving advice to and what he is giving advice about, but the Solicitor-General, as is clearly shown in the Hansard evidence and as we highlight in our report, on three occasions told the world that he had given advice to someone on a certain matter. Any lawyer knows you do not do that. He did not seek the permission of his clients—in one case the Prime Minister, in other cases the Attorney-General—to expose the fact that he had given advice. The first I knew that the Solicitor-General had given some advice on the position of senators—and I was a bit worried when I read this because I thought it might have been something to do with me—was when he exposed to the world that he had given advice to the government on the qualifications of senators. I did not know what that was a few weeks ago. I suspect I know now what it was all about. It is inappropriate for any lawyer to disclose that he has given advice on any particular matter. He told the world that the Prime Minister had asked him for advice. That is not the role of the Solicitor-General. The Solicitor-General is a senior public servant and should abide by the rules of his job and the normal rules of the legal profession. The Solicitor-General said, in a weak excuse, 'I only mentioned the Prime Minister because the Prime Minister mentioned it in the other chamber two days ago.' Unfortunately for the Solicitor-General, he had released that information a week before, when he put in his written submission, which he knew—or should have known—would be made public. Not only did he err but he then tried to cover up that error with the weak excuse that the Prime Minister had himself alerted the world to the fact that he had sought advice. But the Prime Minister only did that a week or so after the Solicitor-General had made it public.

There is another unfortunate aspect to the Solicitor-General's tenure. During the caretaker period, to which, as we all know, very careful rules apply, the Solicitor-General of his own accord had a conversation with the shadow Attorney-General, Mr Dreyfus, about matters that were occurring in the government. That is a no-no. Any basic student of the caretaker period would know that you do not do that or, if it is a matter of urgency that you do do that, the first thing you do is report that to the department or to the Attorney-General. Unfortunately the former Solicitor-General, Mr Gleeson, had a conversation with Mr Dreyfus and did not report it. He did not speak about it either to the department or to the Attorney-General, and that just does not happen within the Public Service. In fact, it was only when he was questioned at this hearing about whether he had ever spoken to the opposition when he held the position of Solicitor-General to the government that he admitted that he had actually spoken to a member of the Labor Party opposition during the caretaker period, and that in itself is inexcusable.

On the issue, the Solicitor-General seemed to think that, as the second law officer, he was the decision-maker. It is quite clear that the decision-maker on these issues is the person who is accountable to parliament and through parliament to the people of Australia—not a statutory office holder who has a fixed term of office and is accountable to no-one except the Attorney-General.

Opposition senators interjecting

The ACTING DEPUTY PRESIDENT: Order on my left!

Senator IAN MACDONALD: Thank you, Mr Acting Deputy President. The Labor Party do not like this. They realise they have made a huge mistake. They went out to get Senator Brandis and they ended up getting their own man. The Solicitor-General seemed to think that he gave advice to the Attorney-General and to other ministers, and he seemed to think that, simply because he had given the advice, it should have been taken. He thought his advice was sacrosanct. He did not think the Attorney, who is quite a brilliant legal mind himself, might say: 'Well, I'm not quite sure about that legal opinion. I might get a legal opinion from a QC in the private profession—one who has a reputation for excellence,' which the Solicitor-General may or may not have had. But the Solicitor-General seemed to think that, because he gave advice, that was it and the Attorney-General had to not only accept it but also act on it. So I think the Solicitor-General did the right thing in resigning. He obviously realised he had made mistakes, and he did the only thing open to him.

Opposition senators interjecting

Senator IAN MACDONALD: As for the question of Senator Brandis telling the chamber—and unfortunately I only have 20 seconds—

The ACTING DEPUTY PRESIDENT: Senator Scullion, on a point of order?

Senator Scullion: We have listened in silence to several statements that would have brought your attention to the standing orders. Generally the convention is we let that go through to the speaker. But we listened to them in silence, so I wonder if you could ask the other side to provide the same courtesy.

The ACTING DEPUTY PRESIDENT: Thank you, Senator Scullion. I repeat that interjections are disorderly and the senator is entitled to be heard in silence.

Senator IAN MACDONALD: Senator Brandis did consult. The evidence is there showing the consultation on both the guidance note and the direction, which are in exactly the same words. The department actually gave advice to the minister that he had, in fact, consulted in accordance with the act. (Time expired)

Back to List