Matters of Urgency - Attorney-General


Senator IAN MACDONALD (Queensland) (17:11): Before I start on this debate, can I just repeat a warning I gave to the Legal and Constitutional Affairs References Committee before it embarked upon this political witch-hunt, and that is that what the Labor Party and the Greens political party are doing is politicising the role of the Solicitor-General vis-a-vis his immediate superior, the Attorney-General. The Attorney-General is responsible and answerable to this parliament and ultimately to the people of Australia. The Solicitor-General is responsible to no-one except his legal training, his commitment to the law and the Attorney-General. By raising this matter here in this political witch-hunt inquiry, what the Labor Party and the Greens have successfully done is diminish the position of the Solicitor-General generally and this Solicitor-General in particular.

I might say to these so-called independent statutory officers like the President of the Human Rights Commission and the Solicitor-General: if you want to be captured by the Labor Party's political approach, if you want to become a player in the political system, then do the right thing by your position, resign as President of the Human Rights Commission or Solicitor-General, take a real pay cut from the enormous salaries both get, stand for parliament, see if you can get people to support you and elect you to parliament, and then come into parliament and play the games. Deliberately or innocently, both the Human Rights Commissioner and the Solicitor-General have allowed themselves to be involved in the political games, and by doing that they have diminished the positions they hold and themselves.

Senator McKim seemed to think it was awful for Senator Brandis to get legal advice from elsewhere. Well, can I tell you, Senator McKim, that the fact that he holds the title of Solicitor-General does not mean that his legal opinions are any better than those of any number of very experienced silks who are available to give advice to the government and anyone else and who make their way in the courts.

Senator McKim: Mr Acting Deputy President, briefly on a point of order: I suspect that Senator Macdonald has just misled the chamber. In my contribution, I was explicit that there were circumstances where it would be appropriate not to seek the advice of the Solicitor-General—

The ACTING DEPUTY PRESIDENT ( Senator Whish-Wilson ): That is not a point of order; that is debating the subject.

Senator IAN MACDONALD: The Solicitor-General does not have a monopoly on good advice. In fact, I know from my very limited legal training that some of the advice given by the Solicitor-General has not been all that hot, and I can understand why the Attorney has gone and sought other advice. Remember that the Attorney-General is a qualified barrister and a Queen's Counsel himself. Like him or hate him—and we can all say which side we fall on there—he has a very astute and sharp legal mind. In fact, I would back the Attorney's legal view on matters ahead of most other QCs and SCs.

Regrettably, this inquiry, and the politicisation of the role of Solicitor-General, stems from the Labor Party's insatiable—almost manic—desire to try to get rid of Senator Brandis. And I can understand why they want to get rid of Senator Brandis. In Senator Brandis the government has a Leader of the Government in the Senate who is up to the challenge, whose knowledge of the law of the Senate and politics is such that the Labor Party and the Greens can never lay a glove on him. As much as they keep trying to attack him, they never succeed—and they never will because Senator Brandis, love him or hate him, is a very able and competent person. The Labor Party cannot stand that, and they will go to any length—even to the length of diminishing the role of Solicitor-General—just to try and get at the Attorney-General.

I am sad that it has come to that. If you do not like the legal direction note, do the right thing and move a motion of disallowance—which is going to happen this afternoon. If you do not like the motion, bring on the disallowance motion and argue it—agree with it or disagree with it—and deal with it. That is the way you deal with it, and I understand that is what the Labor Party are going to do later on. But why politicise the role of the Solicitor-General by bringing on this debate today, wasting all of question time on the same thing and setting up this dodgy political Senate inquiry simply to politicise these matters? If you are interested in the substantive article, bring on the motion of disallowance and argue the debate on the facts, not on politicising the role of the Solicitor-General.

My colleague Senator Reynolds went through the facts very well, and I do not want to repeat a lot of them. But, of course, we have never heard the Labor Party and the Greens talk about the note taking of that meeting on 30 November 2015. The notes of what was discussed at that meeting say: 'Four documents in issue: (1) The Law Officers Act, (2) LSD, (3) guidance note, (4) MPS.' I asked a witness what LSD stood for and, of course, it was Legal Service Directions. So it is there in the note taker's notes of that meeting, which have been tendered to the committee. But, strangely, no-one else has mentioned that in this debate so far.

Further, while everyone seems to concede that the guidance note was discussed, they seem to think that the Legal Service Directions note was not. Senator Reynolds rightly pointed out this whole process started because the Solicitor-General was concerned at the number of briefs he was getting, from all sorts of departments and officers, that were impinging upon his time and stopping him from doing the quality high-level work that he was supposed to be doing. So he asked for this meeting with the Attorney-General, who listened to him and heard what he had to say. And then it was up to the Attorney-General to devise the way to address that. He asked the Solicitor-General to put his thoughts in writing, which he did. Having done that, it is left to the Attorney-General, who is responsible to parliament and the people, to then make a decision. Having heard all the submissions from his secretary, from the department, from the Solicitor-General and from previous people involved in this particular area, he has mixed that all up and then come to a decision. And it is his decision to make.

But what I get from reading the Solicitor-General's submission to the committee is that he perhaps feels he has a veto power, that he is the one who makes the rules. Well, I am sorry, Solicitor-General, you do not make the rules; the Attorney-General makes the rules. Under the act, you are able to give advice on those—which you initiated and were asked for, which you gave and put in writing. Just because the Attorney-General did not follow your advice to the letter does not mean to say that the Attorney-General is wrong. It is the Attorney-General, Senator Brandis, who has to make the decisions, not the Solicitor-General—and, from reading the Solicitor General's submission, it seems to me that he has confused his role.

I also want to reiterate that this is a purely administrative matter that has been blown out of all proportions by the Labor Party and the Greens simply because of their insatiable and manic desire to attack Senator Brandis using any means at their disposal. Regrettably, it has brought this whole process and the role of the Solicitor-General into the political field.

What is consultation? This debate is about the Attorney-General allegedly misleading parliament because he said he consulted with the Solicitor-General, which he clearly did, and the Labor Party wanting to use this to try to attack the Attorney-General. Consultation was clearly and obviously had. Not only was it had at the request of the Solicitor-General but the note taker has shown what the matters to be discussed were. There was a general discussion on how the Solicitor-General should be briefed. He was concerned about his workload. The Attorney-General listened to him and asked him to put his thoughts in writing. The Attorney-General, having consulted, then made a decision, which is his decision to make, not the Solicitor-General's. I might say, not that Senator Brandis needs the comfort of departmental confirmation of what he has done, but, as all ministers do, when these matters come up the department prepare a brief, they send forward the brief with all the alternatives, the options, what it is all about and some recommendations. The recommendation in this instance was that the Attorney sign the direction to deal with the issue, which was consulted on—that is, the workload of the Solicitor-General. Not only did the department recommend that this direction should go ahead but they also clearly said in their advice—and that was given to the committee; we do not hear too much from the other side about that—'Yes, the consultation you have had satisfies your obligation under the act.'

Again, I am disappointed that this is not being dealt with in the disallowance motion later today. Whether you agree with it or not—and I have an open mind on it, I tell you—that is where it should be dealt with. This unfortunate debate really politicises the position of the Solicitor-General. I have to say, in my mind at least, it makes his position subject to question.

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