Subject/s: George Brandis and the Bell Group case
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
ACTING SHADOW MINISTER FOR JUSTICE
MEMBER FOR ISAACS
ABC RN BREAKFAST WITH FRAN KELLY
FRIDAY, 25 NOVEMBER 2016
Subject/s: George Brandis and the Bell Group case
FRAN KELLY, HOST: Mark Dreyfus is the Shadow Attorney-General, he does join us now. Mark Dreyfus, welcome to Breakfast.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thanks for having me Fran.
KELLY: If this is accurate, and there’s no confirmation apart from the way it’s reported in the paper, the Attorney-General ordered the Solicitor-General not to mount a particular case. Should the Solicitor-General comply with that order? Is he in breach of his duty, as the government’s principal legal advisor, if he ignores this request, this order from the Attorney-General?
DREYFUS: The Solicitor-General’s duty is to the Commonwealth of Australia. It is to uphold the Constitution of Australia. It’s to uphold Commonwealth laws. What’s extraordinary here is that if the facts in this story are correct, George Brandis has failed in his duty to the Commonwealth. He’s got the same duty as the Solicitor-General to uphold the Constitution, to uphold the laws of the Commonwealth, and instead – if the facts are as reported – he has attempted to favour his Liberal mates in Western Australia at the cost of the Commonwealth.
KELLY: I’ll come back to that in a moment. But this notion that where the Solicitor-General’s upward referral goes I suppose. If the Attorney-General, who is his boss, specifically asks him not to provide a certain line of advice and then he does when the Tax Commissioner, effectively, comes and asks for it. Are you saying that is the role of the Solicitor-General?
DREYFUS: The Solicitor General does not have to take instructions from someone who thought he was the Attorney-General for the Western Australian Liberal Party. His job is to act in the interests of the Commonwealth. He’s got a statutory duty. The Act of Parliament, under which he is appointed, the Law Officers Act, says that it is his function to act for a whole range of Commonwealth agencies, including of course the Tax Commissioner, and he’s got another function and which is to give written opinions to the Attorney-General. It’s not open to the Attorney-General of the Commonwealth to instruct the Solicitor-General to act contrary to the interests of the Commonwealth. It is not open to the Attorney-General to suggest, let alone instruct the Solicitor-General not to take an argument which he is, in effect, required to do. The Solicitor General has got to put the proper arguments before the High Court of Australia.
KELLY: Is it not within the remit of Federal Government to strike a deal with the Western Australian government to say “okay, we actually don’t mind if you take priority as a creditor and get this money ahead of the Tax Office”, which is effectively the Commonwealth. Is that not within the remit of the Federal Government to make an agreement like that?
DREYFUS: The Federal Government can decide to give additional assistance to the state of Western Australia if there’s some good reason for it. What it can’t do is do a shoddy secret deal where a special act of the Western Australian Parliament, that’s inconsistent with the Constitution, inconsistent with the Federal Tax Legislation, is to be the means of doing it. There can be no suggestion of any proper conduct here. This is corrupt conduct because the Commonwealth Attorney-General has apparently, according to this story, acted contrary to the interests of the Commonwealth.
KELLY: Well, corrupt is a strong word and we should repeat that this has not been tested. We have not got a comment on this yet from the Attorney-General, the Federal Attorney-General. The High Court we do know voted for the Tax Office and against the State Government seven to zero. It wasn’t long after that the Attorney-General changed that Legal Services Direction that the political row that went on for a few months and ended in the resignation of the Solicitor General, it broke out. That was the direction that all the advice from the solicitor general, all those wanting advice form the Solicitor-General must come to the Attorney-General first. Do you draw connections between this decision and the High Court argument?
DREYFUS: It’s hard not to Fran. You’ve got an attempt by the Attorney-General after this row reported in the Western Australian today happened, an attempt by the Attorney-General to impose complete control, by him, on the Solicitor-General of the Commonwealth. Something that is at odds with a century of convention where the Solicitor-General advises the whole of the Commonwealth Government, he is not simply the tool of the Attorney-General. And of course we know how sadly that ended because Justin Gleeson, someone who has provided exceptional service to the Commonwealth over some four years, was forced to resign.
KELLY: Okay Mark Dreyfus, thank you very much for joining us.
DREYFUS: Thank you very much Fran.