Lateline interview

SUBJECT/S: Senator Brandis misleading Parliament; Solicitor-General’s submission to Senate Inquiry.

THE HON MARK DREYFUS QC MP

SHADOW ATTORNEY-GENERAL

SHADOW MINISTER FOR NATIONAL SECURITY

ACTING SHADOW MINISTER FOR JUSTICE

MEMBER FOR ISAACS

 

E&OE TRANSCRIPT

TELEVISION INTERVIEW 

LATELINE 

WEDNESDAY 5 OCTOBER 2016

SUBJECT/S: Senator Brandis misleading Parliament; Solicitor-General’s submission to Senate Inquiry.

EMMA ALBERICI,  HOST: The Federal Attorney-General has been accused of misleading the Parliament. George Brandis has also faced fierce criticism by Australia’s second highest law officer.  A public spat with Solicitor-General Justin Gleeson SC has boiled over in a Senate Inquiry. The Inquiry is examining a directive by Senator Brandis that Mr Gleeson inform the Attorney-General before offering legal advice to others in the government. Joining me now from Melbourne is Shadow Attorney-General Mark Dreyfus. Thank you for your time.

MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thank you for having me Emma.

ALBERICI: What is it exactly that George Brandis is being accused of doing here?

DREYFUS: I’m accusing George Brandis of lying to the Australian Parliament and lying to the Australian people. He’s directly misled the Senate by saying in a formal document, in an explanatory statement, when he tabled something call the Legal Services Direction on 4 May, shortly before the election, he said that he had consulted with the second law office, Justin Gleeson, and he hadn’t. 

That was a lie. And Justin Gleeson, in a submission to the Senate Inquiry, which is inquiring into this matter and opened its inquiry today, has said very clearly just that, that he was not consulted about this Legal Services Direction, he was not consulted about this very important change. Senator Brandis should resign. It’s a disgraceful act that he’s engaged in here.

ALBERICI: That’s some very serious allegations that you’re levelling at the Attorney-General. Isn’t it though his discretion to vary the functions of the Solicitor-General in any way he pleases?

DREYFUS: It’s true that the Solicitor-General is subject to, at some level, guidance and counsel from the first law officer, the Attorney-General. The problem here is that Senator Brandis has directly misled the Australian people, lied to the Parliament by saying that he consulted with the Solicitor-General. He’s required to consult with the Solicitor-General by the law that relates to this kind of subordinate instrument. The Legal Services Direction has the force of law, and in his formal explanatory statement, he said to the Senate ‘I consulted with the Solicitor-General’ and he didn’t. And the Solicitor-General has made this clear in his submission to the inquiry that is now looking into this.

I am hopeful that the Senate will ultimately disallow this instrument, but in the meantime, this Senate Committee is inquiring into how it came about that Senator Brandis has made this Legal Services Direction and how it came about that he lied to the Senate.

ALBERICI: Let’s take one step back. What is the role of the Solicitor-General?

DREYFUS: He’s the second law officer Emma. It’s a role that has existed and has served the Australian people very well for about a century. Invented in 1916, modelled on a similar but not identical office in the United Kingdom, and he assists the government in providing legal advice. In almost every constitutional case the Solicitor-General will represent the Commonwealth of Australia.

The public don’t know much about the Solicitor-General because it’s worked very well. It hasn’t needed to become the subject of public discussion. Unfortunately, this Attorney-General, Senator Brandis has blown this up. It’s a kind of power grab that he’s made. In real terms what he’s tried to do is impose a requirement for written consent by him, Senator Brandis, before the Solicitor-General gives advice to anyone in the government, including the Prime Minister, the Governor-General, or heads of Department. That’s never happened before in the 100 years of history of this office. It’s an extraordinary thing to do and made worse by the fact that he’s lied about the way in which he did it.

ALBERICI: Why does Labor suspect Senator Brandis did issue this directive?

DREYFUS: It’s a grab for power Emma, pure and simple. It’s an indication of Senator Brandis’ own complete lack of understanding of the function of the Solicitor-General, his lack of understanding of the how the independence of the Solicitor-General has served Australia so well.

That’s it, pure and simple. He thought he could get away with, just before the election was called, imposing this requirement for written consent to be obtained from him personally before anyone got the advice of the Solicitor-General, and he thought he could get away with it, and he hasn’t.

The Solicitor-General has called him out on it, by explaining in very clear terms to the Senate how the Senate has been misled.

ALBERICI: Now I see that Justin Gleeson started in his role as Solicitor-General in 2013. Was he operating in this capacity when you were Attorney-General?

DREYFUS: Yes, he had been the Acting Solicitor-General, appointed by my predecessor, Nicola Roxon, in 2012. I confirmed his appointment as Solicitor-General. He is someone who is among the most eminent counsel in Australia. He has long experience appearing in the High Court before he became Solicitor-General, and he has served Australia extremely well. 

I had the honour and privilege of appearing with him in the International Court of Justice in the Whaling case. He has since then appeared in other cases in the International Court of Justice for Australia, and has appeared very competently in the High Court of Australia. And I know whose word I’m going to believe on this, and it certainly won’t be Senator Brandis’.

ALBERICI: How has this matter come to your attention?

DREYFUS: The matter was first revealed in the Australian Financial Review during the election campaign. It didn’t get the attention it deserved. The Senate after the election has decided that it will inquire into how this Legal Services Direction, and this extraordinary new requirement came about, and that’s the inquiry that held its first hearing today. 

For the purposes of that hearing, Justin Gleeson, the Solicitor-General, made a written submission, that became available for the first time today, and it’s extraordinary because it confirms that Senator Brandis has misled the Parliament and lied to the Australian people. And incidentally, he produced some documents which absolutely support the Solicitor-General’s accounts of events including, extraordinarily, the revelation that we don’t just have this instance of the Attorney-General’s misconduct, it seems that he’s misled Australians last year in another way by misrepresenting the Solicitor-General’s advice in relation to the Citizenship Bill which passed through the Parliament last year.

This is something that particularly concerns me because, as a member of the Intelligence Committee, I expressed concerns about the constitutionality of that Bill. The Attorney-General, Senator Brandis responded to that by producing a letter, which is annexed to the Intelligence Committee’s report, in which he asserts that the Solicitor-General advised to the general effect that it was going to be constitutional. It turns out from this letter that Justin Gleeson has attached to his submission today that he gave no such advice, that the Attorney-General has misrepresented that advice, and it would appear that Mr Turnbull has gone on to make the same misrepresentation about the advice of the Solicitor-General. It is no way that the government should be treating the Solicitor-General. Senator Brandis, I repeat, should resign in disgrace because of his behaviour in this matter. 

ALBERICI: Is there any other advice you’re away of specifically that has been sought by other members of the government from Justin Gleeson, that Senator Brandis wanted passed by him first?

DREYFUS: Well he now has said, specified as a matter of law, because he’s got the power to make this Direction, that every single advice that a minister, the Prime Minister, the Governor-General, that any Head of Department seeks from the Solicitor-General has to go by him first and he has to give his written consent. That’s never happened before in the history of this office. It shouldn’t happen now.

Justin Gleeson makes clear in his submission that had he been consulted that he would have said loud and clear to the Attorney-General, do not do this, I ask you not to do this. 

And it’s the fact that the Solicitor-General gives advice regularly to the senior agencies and officers of the Commonwealth.

ALBERICI: What does this episode tell us about the relationship between Senator Brandis, as you say the nation’s number one legal officer, and his number two?

DREYFUS: It tells us that the relationship between the Solicitor-General and Senator Brandis is very frayed. The letter of 12 November 2015, which the Solicitor-General has annexed to his submission, says that in terms the relationship between the Solicitor-General and the government is frayed. I hold both the Attorney-General and the Prime Minister directly responsible for this. It’s their job to make sure that they get the best out of this eminent counsel, the Solicitor-General Justin Gleeson, for the good of the government and the good of Australia.

ALBERICI: Just to be clear, are you alleging the Senator Brandis didn’t like the advice that was coming from Justin Gleeson and therefore misrepresented that advice?

DREYFUS: Well I’m not privy to the advice that Justin Gleeson.

ALBERICI: Well, on the citizenship issue.

DREYFUS: That’s apparent. And in his letter to the Attorney-General that he releases today, it’s clear that he gave advice to the Attorney-General on a previous version of the Bill, but his advice was not then sought on the version of the Bill that was produced in the Parliament. It appears that the Attorney-General and subsequently Mr Turnbull has misrepresented the effect of the Solicitor-General’s advice about that very Citizenship Bill. That is an absolutely disgraceful way to treat the most senior advice that is available to the government of Australia. The Attorney-General has a duty to behave in a directly opposite fashion. He has a duty not only to tell the truth to the Parliament and the Australian people, but a duty to respect the advice that’s given by the Solicitor-General and not misrepresent it to the Australian people, which is what appears to have occurred here.

ALBERICI: Mark Dreyfus, thank you very much.

DREYFUS: Thank you very much Emma.

END

 

THE HON MARK DREYFUS QC MPSHADOW ATTORNEY-GENERALSHADOW MINISTER FOR NATIONAL SECURITYACTING SHADOW MINISTER FOR JUSTICEMEMBER FOR ISAACS
E&OE TRANSCRIPTTELEVISION INTERVIEW LATELINE WEDNESDAY 5 OCTOBER 2016SUBJECT/S: Senator Brandis misleading Parliament; Solicitor-General’s submission to Senate Inquiry.EMMA ALBERICI,  HOST: The Federal Attorney-General has been accused of misleading the Parliament. George Brandis has also faced fierce criticism by Australia’s second highest law officer.  A public spat with Solicitor-General Justin Gleeson SC has boiled over in a Senate Inquiry. The Inquiry is examining a directive by Senator Brandis that Mr Gleeson inform the Attorney-General before offering legal advice to others in the government. Joining me now from Melbourne is Shadow Attorney-General Mark Dreyfus. Thank you for your time.MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thank you for having me Emma.ALBERICI: What is it exactly that George Brandis is being accused of doing here?DREYFUS: I’m accusing George Brandis of lying to the Australian Parliament and lying to the Australian people. He’s directly misled the Senate by saying in a formal document, in an explanatory statement, when he tabled something call the Legal Services Direction on 4 May, shortly before the election, he said that he had consulted with the second law office, Justin Gleeson, and he hadn’t. That was a lie. And Justin Gleeson, in a submission to the Senate Inquiry, which is inquiring into this matter and opened its inquiry today, has said very clearly just that, that he was not consulted about this Legal Services Direction, he was not consulted about this very important change. Senator Brandis should resign. It’s a disgraceful act that he’s engaged in here.ALBERICI: That’s some very serious allegations that you’re levelling at the Attorney-General. Isn’t it though his discretion to vary the functions of the Solicitor-General in any way he pleases?DREYFUS: It’s true that the Solicitor-General is subject to, at some level, guidance and counsel from the first law officer, the Attorney-General. The problem here is that Senator Brandis has directly misled the Australian people, lied to the Parliament by saying that he consulted with the Solicitor-General. He’s required to consult with the Solicitor-General by the law that relates to this kind of subordinate instrument. The Legal Services Direction has the force of law, and in his formal explanatory statement, he said to the Senate ‘I consulted with the Solicitor-General’ and he didn’t. And the Solicitor-General has made this clear in his submission to the inquiry that is now looking into this.I am hopeful that the Senate will ultimately disallow this instrument, but in the meantime, this Senate Committee is inquiring into how it came about that Senator Brandis has made this Legal Services Direction and how it came about that he lied to the Senate.ALBERICI: Let’s take one step back. What is the role of the Solicitor-General?DREYFUS: He’s the second law officer Emma. It’s a role that has existed and has served the Australian people very well for about a century. Invented in 1916, modelled on a similar but not identical office in the United Kingdom, and he assists the government in providing legal advice. In almost every constitutional case the Solicitor-General will represent the Commonwealth of Australia.The public don’t know much about the Solicitor-General because it’s worked very well. It hasn’t needed to become the subject of public discussion. Unfortunately, this Attorney-General, Senator Brandis has blown this up. It’s a kind of power grab that he’s made. In real terms what he’s tried to do is impose a requirement for written consent by him, Senator Brandis, before the Solicitor-General gives advice to anyone in the government, including the Prime Minister, the Governor-General, or heads of Department. That’s never happened before in the 100 years of history of this office. It’s an extraordinary thing to do and made worse by the fact that he’s lied about the way in which he did it.ALBERICI: Why does Labor suspect Senator Brandis did issue this directive?DREYFUS: It’s a grab for power Emma, pure and simple. It’s an indication of Senator Brandis’ own complete lack of understanding of the function of the Solicitor-General, his lack of understanding of the how the independence of the Solicitor-General has served Australia so well.That’s it, pure and simple. He thought he could get away with, just before the election was called, imposing this requirement for written consent to be obtained from him personally before anyone got the advice of the Solicitor-General, and he thought he could get away with it, and he hasn’t.The Solicitor-General has called him out on it, by explaining in very clear terms to the Senate how the Senate has been misled.ALBERICI: Now I see that Justin Gleeson started in his role as Solicitor-General in 2013. Was he operating in this capacity when you were Attorney-General?DREYFUS: Yes, he had been the Acting Solicitor-General, appointed by my predecessor, Nicola Roxon, in 2012. I confirmed his appointment as Solicitor-General. He is someone who is among the most eminent counsel in Australia. He has long experience appearing in the High Court before he became Solicitor-General, and he has served Australia extremely well. I had the honour and privilege of appearing with him in the International Court of Justice in the Whaling case. He has since then appeared in other cases in the International Court of Justice for Australia, and has appeared very competently in the High Court of Australia. And I know whose word I’m going to believe on this, and it certainly won’t be Senator Brandis’.ALBERICI: How has this matter come to your attention?DREYFUS: The matter was first revealed in the Australian Financial Review during the election campaign. It didn’t get the attention it deserved. The Senate after the election has decided that it will inquire into how this Legal Services Direction, and this extraordinary new requirement came about, and that’s the inquiry that held its first hearing today. For the purposes of that hearing, Justin Gleeson, the Solicitor-General, made a written submission, that became available for the first time today, and it’s extraordinary because it confirms that Senator Brandis has misled the Parliament and lied to the Australian people. And incidentally, he produced some documents which absolutely support the Solicitor-General’s accounts of events including, extraordinarily, the revelation that we don’t just have this instance of the Attorney-General’s misconduct, it seems that he’s misled Australians last year in another way by misrepresenting the Solicitor-General’s advice in relation to the Citizenship Bill which passed through the Parliament last year.This is something that particularly concerns me because, as a member of the Intelligence Committee, I expressed concerns about the constitutionality of that Bill. The Attorney-General, Senator Brandis responded to that by producing a letter, which is annexed to the Intelligence Committee’s report, in which he asserts that the Solicitor-General advised to the general effect that it was going to be constitutional. It turns out from this letter that Justin Gleeson has attached to his submission today that he gave no such advice, that the Attorney-General has misrepresented that advice, and it would appear that Mr Turnbull has gone on to make the same misrepresentation about the advice of the Solicitor-General. It is no way that the government should be treating the Solicitor-General. Senator Brandis, I repeat, should resign in disgrace because of his behaviour in this matter. ALBERICI: Is there any other advice you’re away of specifically that has been sought by other members of the government from Justin Gleeson, that Senator Brandis wanted passed by him first?DREYFUS: Well he now has said, specified as a matter of law, because he’s got the power to make this Direction, that every single advice that a minister, the Prime Minister, the Governor-General, that any Head of Department seeks from the Solicitor-General has to go by him first and he has to give his written consent. That’s never happened before in the history of this office. It shouldn’t happen now.Justin Gleeson makes clear in his submission that had he been consulted that he would have said loud and clear to the Attorney-General, do not do this, I ask you not to do this. And it’s the fact that the Solicitor-General gives advice regularly to the senior agencies and officers of the Commonwealth.ALBERICI: What does this episode tell us about the relationship between Senator Brandis, as you say the nation’s number one legal officer, and his number two?DREYFUS: It tells us that the relationship between the Solicitor-General and Senator Brandis is very frayed. The letter of 12 November 2015, which the Solicitor-General has annexed to his submission, says that in terms the relationship between the Solicitor-General and the government is frayed. I hold both the Attorney-General and the Prime Minister directly responsible for this. It’s their job to make sure that they get the best out of this eminent counsel, the Solicitor-General Justin Gleeson, for the good of the government and the good of Australia.ALBERICI: Just to be clear, are you alleging the Senator Brandis didn’t like the advice that was coming from Justin Gleeson and therefore misrepresented that advice?DREYFUS: Well I’m not privy to the advice that Justin Gleeson.ALBERICI: Well, on the citizenship issue.DREYFUS: That’s apparent. And in his letter to the Attorney-General that he releases today, it’s clear that he gave advice to the Attorney-General on a previous version of the Bill, but his advice was not then sought on the version of the Bill that was produced in the Parliament. It appears that the Attorney-General and subsequently Mr Turnbull has misrepresented the effect of the Solicitor-General’s advice about that very Citizenship Bill. That is an absolutely disgraceful way to treat the most senior advice that is available to the government of Australia. The Attorney-General has a duty to behave in a directly opposite fashion. He has a duty not only to tell the truth to the Parliament and the Australian people, but a duty to respect the advice that’s given by the Solicitor-General and not misrepresent it to the Australian people, which is what appears to have occurred here.ALBERICI: Mark Dreyfus, thank you very much.DREYFUS: Thank you very much Emma.END