Doorstop at Commonwealth Parliamentary Offices, Melbourne

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



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

MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Australians need to be able to trust their Attorney-General and this Attorney-General, Senator George Brandis, clearly cannot be trusted. I've called on him to resign and I call on Mr Turnbull to sack him if Senator Brandis won't resign. And it's for a very straightforward, simple reason. It is that Senator George Brandis has lied to the Australian Parliament and lied to the Australian people.

And not just about some trivial matter. He has told, it's quite clear, a deliberate falsehood to the Australian Parliament about a significant change to the way in which the Second Law Officer of the Commonwealth, the Solicitor-General Justin Gleeson, is to go about providing advice to the Prime Minister, the Governor-General, heads of Departments, or anyone else in the senior levels of the Australian Commonwealth about important legal matters.

What's worse is that since the Solicitor-General told George Brandis that he had misled the Parliament, which happened way back in the first week of May, the Attorney-General has simply dug in. He's further mislead the Senate on the 12th of September, when in Question Time, in answer to a direct question "did he stand by what he had said to the Parliament in his Explanatory Statement in May", he confirmed that he did. He pointed to a meeting on the 30th of November 2015 as the basis for saying that he had consulted the Solicitor-General.

What we now have is the extraordinary circumstance that the Second Law Officer of the Commonwealth has made a written submission to a Senate Inquiry, which commenced its hearing yesterday, in which the Solicitor-General has made it absolutely crystal clear that the Attorney-General Senator George Brandis has misled the Parliament. He's made it crystal clear that that misleading occurred in not one, but two ways.

The first way is that he did not consult the Solicitor-General about the making of something called the 'Legal Services Direction', a revision of the Legal Services Direction, a document which has the force of law.

And the second way in which there was a misleading about the consultation is, as the Solicitor-General has made clear in his written submission, that he was never told by the Attorney-General that the Attorney-General was proposing to introduce a new requirement for the written consent of the Attorney-General to be obtained before his advice could be given to senior officers of the Commonwealth, Departmental Secretaries, the Prime Minister, the Governor-General, or anyone else senior. 

It's an extraordinary thing that Senator George Brandis is persisting with his lie. As late as yesterday, in the submission that Senator Brandis gave to the Senate Committee, he's persisting with his lie by saying that he consulted about the general area. He repeated this lie this morning on ABC radio. But it remains a lie. We have Senator George Brandis now lying about lying. It's a disgraceful performance.

Australians do need to be able to trust their Attorney-General. They clearly can't trust this Attorney-General.
And there's one other matter that needs to be drawn attention to. Attached to the written submission that the Solicitor-General produced to the Senate Inquiry yesterday is a letter dated the 12th of November 2015 from the Solicitor-General to Senator George Brandis which Senator Brandis, at least, has admitted is what gave rise to the discussion that occurred on the 30th of November.
But in that letter, of the 12th of November, Justin Gleeson the Solicitor-General reveals that the Attorney-General, and it appears the Prime Minister subsequently, misrepresented the effect of written advice that the Solicitor-General had provided to the Government about a very significant matter - the Citizenship Bill which was under consideration in the Australian Parliament last year. Grave concerns had been raised about the constitutionality of that Bill.

In an endeavour to allay those concerns, Senator Brandis wrote to me and wrote to the Intelligence Committee to say that he had had advice that should satisfy us, I'm paraphrasing, about the constitutionality of that Bill. The Solicitor-General in his later letter from the 12th of November last year, is making clear that as far as he was concerned he had not been consulted about the Citizenship Bill that was put before the Parliament, and that there had been a misrepresentation of his advice. Those two are very, very serious matters.

It's an extraordinary event, unprecedented in the history of the Federation, that there should be this kind of public dispute, now before a Senate Committee, where the Solicitor-General, the Second Law Officer, is directly calling into question what the First Law Officer has told the Parliament.

The Second Law Officer, Justin Gleeson, the Solicitor-General, has put beyond doubt for anyone that cares to read his submission, that the Attorney-General of Australia has misled the Parliament. He should resign. And if he won't resign, he should be sacked by Mr Turnbull. Do you have any questions?

JOURNALIST: Senator Brandis has said his relationship with the Solicitor-General is cordial and workable. Do you think that's true?

DREYFUS: Well, it appears that that version of events, Senator Brandis' version, is at odds with what's been revealed by the Solicitor-General. Certainly the correspondence between them last year does not suggest cordial relations. And in fact suggests that relations are quite frayed. And that's got to be a concern. It's the job of the Attorney-General to work properly with the Solicitor-General. It's the job of the Attorney-General to seek the advice of the Solicitor-General and accept the advice of the Solicitor-General and to work constructively with him. That certainly is not what the documents produced in the Senate yesterday reveal.

JOURNALIST: If, as you say, he lied, you mentioned he should resign but what is the process? What should happen if something like that comes out as being true?

DREYFUS: Mr Turnbull himself, back in 2009, set the standard here. He said, in unequivocal terms, that for this offence, of misleading the Parliament, the penalty is resignation or dismissal. “And it's perfectly clear” - I think is the way that Mr Turnbull put it back in 2009. That remains the standard today.

What we're seeing here from Senator Brandis is simply squirming and slithering around, trying to pretend that he did not mislead Parliament. The one thing he is not doing is meeting directly what has been said by Justin Gleeson, the Solicitor-General. And he can't meet it, because the fact of the matter is that he did not raise with Justin Gleeson his proposal to introduce a new Legal Services Direction. And he did not raise with the Solicitor-General his proposal to introduce a new requirement for written consent before the Solicitor-General could give advice. In the absence of having raised those two matters, it's simply not open to Senator George Brandis to assert, as he's now trying to do, that he consulted.

You can't consult on a matter that you haven't actually told the other person about. And that's the position. That's what Justin Gleeson, in his written submission makes clear to the Senate. And that should be the end of the matter. What needs to happen is that Senator George Brandis should resign, and before he goes he should admit that he's misled the Australian Parliament and lied to the Australian people.

JOURNALIST: Just on the second matter you raised, I didn't quite understand. Would you be able to repeat that in a little bit more of layman's terms of what actually went on?

DREYFUS: Sure, sorry I understand why it might be complex. What's going on here is that a legally binding document called the Legal Services Direction has been made by the Attorney-General. It has the force of law. That's why he's got to put it before the Senate and he did. It can be disallowed by the Senate and that's actually in process. It was accompanied by an Explanatory Statement in which he said he had consulted the Solicitor-General about it. The contents of it are equally important. They are a change to the process by which the Solicitor-General gives advice to the senior officers of the Commonwealth – people like the Prime Minister or the Governor-General or Secretaries of Departments.

Henceforth, because of this change, the Solicitor-General will not be able to give advice directly to all of those officers. He will first have to get the written permission of the Attorney-General. It's an unprecedented change. It's never happened before in the history of the Commonwealth. And it's a very bad change. The Solicitor-General said in his submission to the Senate yesterday that if he had been consulted about it he would have told the Attorney-General not to do it. He would have explained to the Attorney-General why it was the wrong thing to do.

And yesterday in the Senate we had commentary also from a very noted Australian academic, Professor Gabrielle Appleby, who's an expert on Solicitors-General and their role. And she explained that this compromises the independence of the Solicitor-General. She explained that it's an alteration, and a detrimental alteration, in the role of the Solicitor-General. I hope that answers your question. If there's nothing further, thanks very much.