Topic/s: George Brandis and the Solicitor-General
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
ACTING SHADOW MINISTER FOR JUSTICE
MEMBER FOR ISAACS
FRIDAY, 14 OCTOBER 2016
Topic/s: George Brandis and the Solicitor-General
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Today’s Senate hearing has confirmed without doubt, that Senator Brandis has misled the Australian Parliament and must resign. If he doesn’t resign, Mr Turnbull must sack him. It is beyond doubt that Senator Brandis did not, as he told the Australian Senate on the 4th of May, consult with the Solicitor-General about the change he has made to the law - to the Solicitor-General’s provision of advice to the Commonwealth. It is beyond doubt, as the Solicitor-General himself has made clear over the course of extended evidence this morning, that he was not consulted about the making of this new law and he was not consulted about the substance of this new law - which of course imposes a written consent requirement. From the making of this law on the 4th of May, anyone in the Commonwealth, from the Governor-General to the Secretaries of Departments and senior Ministers, have to get the written consent of Senator George Brandis before they can seek the advice of the Solicitor-General. As we’ve also heard today, the making of this new law and the imposing of this written consent requirement have beyond doubt compromised the independence of the Solicitor-General. They have destroyed the integrity of his office. He has given detailed evidence of how his performance of his duties as the prime legal adviser or the second law officer of the Commonwealth have been compromised by this change that has taken place. I say again, Senator Brandis has misled the Australian Parliament and in his own words, it is a serious offence and the penalty for this offence is for him to resign. Mr Turnbull in the past has said on numerous occasions that it is a serious offence to mislead the Australian Parliament and the penalty for that offence is to resign from the Parliament. And if the Minister won’t resign, he must sack him. Now, Mr Turnbull is in the position to do something about the words that he spoke in opposition, that is, to take action - because it is clear now that Senator Brandis won’t resign. It’s now for Mr Turnbull to sack him and give effect to his own words as the appropriate penalty for this serious offence.
And there is one other matter that I want to raise before I take questions and that is the extraordinarily disrespectful, discourteous and rude conduct by two Government Senators who were asking questions of the Solicitor-General during the Senate hearing. This is not the behaviour to demonstrate in the Australian Senate towards senior statutory office holders. I’ve given up hope that Senator George Brandis would ever look after or make sure that respect is given to senior statutory office holders. You’ve seen of course the disgraceful attack on the President of the Human Rights Commission Gillian Triggs. He’s in effect attacked the Solicitor-General so I’m not going to bother calling on Senator Brandis to discipline his Government Senators in the way in which they behaved today, although he should. What I’m doing is calling on Mr Turnbull to step in, and make it clear that he does not condone this kind of attack on the Solicitor-General of the Commonwealth, the second law officer and primary legal advisor of the Commonwealth. I mean, these two Liberal Senators should be ashamed of themselves and those of you who watched this proceeding this morning know just how disgracefully and disrespectfully they behaved.
Do you have any questions?
JOURNALIST: Do you think it was appropriate for you to call Justin Gleeson during caretaker period?
DREYFUS: Yes, when it came to my attention that this extraordinary change in the way in which the Solicitor-General does his work had been tabled in the Australian Senate by Senator Brandis, just before the Parliament was prorogued - dissolved - for the election. It’s absolutely appropriate for me as the Shadow Attorney-General to contact the Solicitor-General to discuss with him two very simple things which were: were you consulted? No. And do you support the making of this direction, do you think it’s the right thing to do, to which he also said no. But there can be absolutely no suggestion - again we’ve got the smokescreen, the obfuscation, the slithering around by Senator Brandis trying to distract attention from the offence that he has committed, suggesting that there could be anything wrong with the Shadow Attorney-General speaking with the Solicitor-General, the second law officer of the Commonwealth, about a major change in the way in which the Solicitor-General does his job. So yes of course I spoke to the Solicitor-General, it was absolutely the right thing to do. It’s a complete nonsense, and it’s usually the case when Senator Brandis opens his mouth that he’s speaking complete nonsense. It is a complete nonsense to suggest that this is in any way a breach of the so-called caretaker conventions. The caretaker conventions are there to restrict the ability of the government to make major decisions during the dissolving of Parliament and the election. They’ve been in place since the early 1950s. On that basis they make absolutely no reference to an entirely appropriate conversation between me as Shadow Attorney-General and the Solicitor-General.
JOURNALIST: Why should people outside a two kilometre radius of this place care about this particular issue?
DREYFUS: Everyone in Australia should be concerned about the rule of law. Everybody in Australia should be concerned about the legal advice, the legal services that are provided to Australia by the Solicitor-General, an institution that has served Australia now for a hundred years since it was invented in 1916. Everybody in Australia should be concerned about attacks on senior office-holders. Everybody in Australia should be concerned by the grab for power that we have seen from this very destructive Attorney-General Senator George Brandis, of course it is a matter of concern that goes directly to the rule of law.
JOURNALIST: Based on the Solicitor-General’s evidence, do you think that the Attorney-General was trying to cut people like the Prime Minister out of the conversation on these kinds of legal advice?
DREYFUS: It’s obvious that that is exactly what the Attorney-General is trying to do. He was putting himself between the Governor-General, and the Solicitor-General. He was putting himself between the Prime Minister and the Solicitor-General. He was putting himself between every Secretary of a Commonwealth Department, between every head of agency, by requiring that his written consent be obtained before the Solicitor-General does what is his statutory duty which is to act as counsel for every arm of the Commonwealth. I find it extraordinary that he’s done this, he hasn’t put forward the slightest justification for it, he’s tried to cover up what he’s done with a whole lot of mumbo jumbo nonsense. He’s tried to distract attention from a direct lie that he has told the Australian Senate in a document tabled in the Senate on May the 4th this year.
JOURNALIST: Do you still maintain that opinion-shopping as you accused the Attorney-General of doing is still wrong?
DREYFUS: My complaint against the Attorney-General was sidelining the Solicitor-General. And I’ve been asked about this since the Attorney-General, since George Brandis raised this yesterday in Senate Question Time. My concern if you read the whole of the text that he quoted half a line from, is not the seeking of a second or third opinion once the Solicitor-General has already given him one, it’s the complete sidelining of the Solicitor-General altogether by going to somebody else. As I said in the book, as quoted by Professor Appleby, the Solicitor-General is the first source of advice on important legal matters to the Commonwealth. His advice carries weight, I said it in the book, which she quoted me as saying. His advice carries more weight than that of the Australian Government Solicitor, his advice carries more weight than that of the private Bar, and that is why I went on to say - and she quotes me as saying - you might need two or even three other opinions on a question. Minds can differ on really difficult legal questions. My complaint - and George Brandis shouldn’t be allowed to get away from this - is the sidelining of the Solicitor-General which is what he has done. It is what the Solicitor-General said in a letter to him - which has now been tabled in the Senate - he had done in relation to, of all things, the plebiscite which is now in the Parliament. And who knows which other matters the Solicitor-General’s advice has been sidelined on, when Senator George Brandis has gone off and got advice from somebody else because he was worried of what Justin Gleeson, one of the most eminent legal minds in Australia, might actually say. It is no way for the Attorney-General to treat the Solicitor-General, and while I am on it, what’s also emerged in these Senate hearings, what has also emerged from that letter of the 12th of November is that George Brandis has misled Australia, misled the Parliament about even the effect of advice that the Solicitor-General did give. There is not one example of him misleading the Parliament, there are multiple examples of misleading the Parliament. George Brandis has not provided the slightest explanation, he’s tried to split hairs and argue that consult doesn’t really mean consult. Well I think Australians know what consult means. It means that you have to tell the person you are consulting with about the thing you are about to do. And that is what he did not do.
JOURNALIST: Was it a mistake for the Solicitor-General to this morning talk about advice that he had given the government about a looming High Court challenge? Senator Brandis says he didn’t give permission to the Solicitor-General to do that.
DREYFUS: Well I don’t think it’s a matter of permission. The Solicitor-General is before the Senate and has honestly answered the questions put to him by the Australian Senate. You again see Senator Brandis out of control, suggesting that not Parliament is supreme, but that he is supreme and that for some reason it’s somehow inappropriate for the Solicitor-General of the Commonwealth, appearing when requested to do so before a Senate committee, to decline to answer questions without asking for George Brandis’s consent. You’ve only got to state it to see how ridiculous George Brandis is, and he’s wrong to suggest the Solicitor-General has in any way behaved inappropriately. At every point in this sorry affair, Justin Gleeson has behaved entirely appropriately, consistently with the loyal and eminent service that he has provided the Commonwealth in more than four years that he has been Solicitor-General.
JOURNALIST: Is it your understanding that the crux of this argument began with a dispute over the Citizenship Allegiance to Australia Bill? And what does that mean about future national security legislation?
DREYFUS: What we now have is the situation where we will have to go back over every single statement this disgraceful Attorney-General has ever made within the Parliament and actually check: was he telling the truth when he said that he had the advice of the Solicitor-General? Was he telling the truth when he said that particular amendments to bills were there because the Solicitor-General had advised that they were needed? Was he telling the truth about whose advice he had got? We, in particular, now have to have grave concerns about the Solicitor-General which you asked about. This is a bill of tremendous importance. It’s right at the heart of national debate through the course of last year and it gave rise to a huge split in cabinet, it got mixed up with Mr Turnbull’s bid for the leadership of the Liberal Party, and during the course of the hearings of the intelligence committee of which I am a member, into that citizenship bill, many of the submitters raised deep concerns as to the constitutionality of that bill. So much so that I sought to have the intelligence committee reassured - I’m a member of this committee - I sought to have the committee reassured by the Attorney-General that the bill was constitutional. He wrote to me on behalf of the committee saying that he had the advice of the Solicitor-General and it now turns out that when he said that, he was not telling the truth. And Mr Gleeson has confirmed - said that in his letter of the 12th of November, because what Mr Gleeson discloses to all of Australia now, what he says is that the version of the bill you introduced to the Parliament, Attorney-General, is not the bill you gave me to look at. And it’s not open to you to say to the intelligence committee, nor was it open to the Prime Minister to later say that the bill in the Parliament was based on the Solicitor-General’s advice because it wasn’t. And the Solicitor-General had not advised on the form of the bill that was introduced into the Parliament. It’s hard to imagine a more serious offence than misleading the Parliament about a constitutional question, misleading the Parliament about a bill that was a very contentious piece of legislation, that split the cabinet in the Liberal government. That’s what this Attorney-General has done, and that is now apparent to all of Australia thanks to the very frank submission that has been made to the Senate committee by Mr Gleeson.
Any other matters? Thanks very much.