Senator Penny Wong – speech criticising the behaviour of the Attorney General irresponsibly freelancing on Australia’s policy on the Israel-Palestine conflict

photo of Senator Penny Wong
October 12, 2016

The catalogue of misleading and deceptive conduct by Senator Brandis is a very lengthy document. It includes…recklessly freelancing on Australia’s policy on the Israel-Palestine conflict and on East Jerusalem…

Full speech

Senator WONG (South AustraliaLeader of the Opposition in the Senate) (13:23): I rise to speak on the issue of the behaviour and conduct of the Attorney-General, because this has been an issue of some focus in the media and, certainly, in this Senate. I think it is useful to remind us all of the behaviour of this Attorney-General, not just on this occasion but over a period of time.

The Attorney-General is the first law officer of the land. This means he should defend and promote Australia’s legal system, and that he should support the independence of our courts and of senior statutory office holders within the legal system. It means he should set an example of ethical standards, personal integrity and basic honesty. And, of course, like all ministers, the Attorney-General should not mislead the parliament or the public. Regrettably, Australia’s Attorney-General has failed to meet these fundamental obligations of his office.

This is the Attorney-General who not only failed to defend the President of the Human Rights Commission when she was subject to political bullying; he then tried to induce her to resign her office. This is the Attorney-General who stood here and told the world that it was okay to be a bigot. This is the Attorney-General who deliberately delayed correcting the parliamentary record about the letter to him from the Lindt cafe gunman, Man Monis.

And now we have Senator Brandis’s latest demonstration that he is not fit to be Attorney-General. He has attempted to undermine the independence of a senior statutory office holder, the Solicitor-General, and then he has attempted to mislead the parliament about his conduct. Now, as is his wont, Senator Brandis seeks to brush off this matter. Frankly, that is typical of a man who seems to regard ministerial standards and ethical conduct as mere nuisances.

The Attorney-General’s conduct concerning the Solicitor-General is not trivial. It represents a major attack on the independence of the Solicitor-General. It puts at risk the quality of legal advice to government departments and agencies as they develop policies, implement legislation and defend the Commonwealth’s legal interests. The minister whose job it is to uphold the law has been exposed as flouting the law by failing to comply with the legislation’s requirements to consult before making a legislative instrument. And, finally, the Attorney-General has been caught out breaching one of the most fundamental requirements of our democratic system of government: ministerial accountability to the parliament.

This matter started when Senator Brandis made an amendment to the Legal Services Directions in May. The Legal Services Directions set out rules and requirements for the performance of Commonwealth legal work. Senator Brandis’s amending direction bars the Solicitor-General from providing legal opinions or advice to anyone in government without the Attorney-General’s permission. It prohibits any Commonwealth agency or officer from referring a question of law to the Solicitor-General without the written permission of the Attorney-General, Senator Brandis. This is a blatant power grab. It is a bid to control the flow of legal advice from the independent Solicitor-General to government departments and to senior figures in the government.

And remember just who is making this power grab: the same Attorney-General who failed to seek advice from the Solicitor-General on the constitutionality of a raft of amendments to the government’s foreign fighters’ citizenship legislation and the same Attorney-General whose mishandling of marriage equality has been exacerbated by his failure to seek advice from the Solicitor-General about the government’s proposals at critical points in the process. It appears that Senator Brandis is of the view that the only legal opinion anyone could ever need is his opinion. And he continues to fail to disclose fully the facts to this Senate. We saw that yesterday in question time, when he was asked why he did not make clear to the Senate in debate on the citizenship bill that the Solicitor-General had not been asked to look at the bill that was introduced. And, again, he obfuscated. It is quite clear from the Solicitor-General’s letter that the evidence he gives about his involvement is not what this Attorney-General said to the chamber. His actions demonstrate how monumentally arrogant and, frankly, deluded this Attorney-General has become.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ): Senator Seselja, a point of order?

Senator Seselja: Yes, thank you, Mr Acting Deputy President. Standing order 193, on the rules of debate, talks about offensive language and imputations against members. Senator Wong has made those imputations just now against the Attorney-General. She should withdraw.

The ACTING DEPUTY PRESIDENT: There is no point of order.

Senator WONG: The substance of the amendments to the directions is bad enough, but the senator—the Attorney-General—has also misled parliament. He told the Senate he had consulted the Solicitor-General over the amending direction, and he said that repeatedly—in a written explanatory statement and in answers to opposition questions. But the Solicitor-General says something quite different—completely different. He has made it clear that he was never consulted by the Attorney-General. I will quote from his submission to the legal and constitutional affairs committee:

Since the Direction was made, I have written to the Attorney-General and written to, and met with, the Secretary of the Attorney-General’s Department to ascertain why I was not consulted about the Direction. I have also taken steps to have the Direction withdrawn and for a proper consultation process to commence. All those steps to date have proved futile.

      …      …      …

… any consultation that may have occurred in relation to the Direction did not occur with me … I had no advance knowledge that the Direction would be made, no notice of what would be in the Direction and no opportunity to put a submission to the Attorney-General or the Attorney-General’s Department as to my views on the legality or merits of the Direction.

He says:

… I was not given an opportunity to comment on the content of the Direction.

And he says:

… there was no consultation with me at any time.

It could not be clearer. This is an open-and-shut case of misleading the Senate. Remember the substance of what is occurring is effectively a power grab—a power grab by this Attorney-General, who wants to close off the avenues of independent advice that he may not like. This is an open-and-shut case of misleading the Senate.

Regrettably, as I said, this is not the first time Senator Brandis has acted in this way. The catalogue of misleading and deceptive conduct by Senator Brandis is a very lengthy document. It includes: claiming to have consulted the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, before establishing the Don Dale royal commission, when no such consultation had occurred; giving the wrong information to parliament about the letter to the Attorney-General from the Lindt cafe gunman, Man Haron Monis, and, when made aware of this fact, delaying correcting the record for three days; failing to defend another independent statutory office holder, the President of the Australian Human Rights Commission, from political attacks and bullying; offering an inducement to the President of the Human Rights Commission to quit her position after the commission issued a report criticising government policy; failing to seek advice from the Solicitor-General on a raft of amendments to the foreign fighters’ citizenship legislation; openly breaching cabinet rules by disclosing publicly the contents of a cabinet debate on national security legislation; seeking to remove the Racial Discrimination Act’s protection against speech that offends, insults or humiliates people on the basis of their race; recklessly freelancing on Australia’s policy on the Israel-Palestine conflict and on East Jerusalem; appointing a Liberal donor to the AAT and refusing to answer questions about the conflict of interest in making such appointments; and using taxpayer-funded travel entitlements to attend the wedding of a friend.

Senator Brandis’s conduct over the Solicitor-General is just the latest in a long saga of misleading statements, attacks on independent office holders, breaches of ministerial standards and, frankly, poor conduct. His track record is one of evasion, of slipperiness, of belligerence, of dishonesty and, I am sure if you ask Senator Abetz, of disloyalty. It is time for this Attorney-General to go before he does any more damage to the legal and political systems in this country. He is now not only bringing himself into disrepute but also he is bringing his office into disrepute, he brings his colleagues into disrepute and he brings his government, this government, into disrepute.

If Senator Brandis does not have the decency to stand down the Prime Minister should remove him, because it is the Prime Minister who now has to recognise he has an Attorney-General who is not trusted by the profession and not trusted by the Australian community to be the first law officer of the land.

Link to parliamentary Hansard