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
RADIO INTERVIEW
RN BREAKFAST
THURSDAY, 6 OCTOBER 2016
SUBJECTS: Senator Brandis misleading Parliament; Solicitor-Generals submission to Senate Inquiry; Marriage Equality.
FRAN KELLY, HOST: The Attorney-General George Brandis is facing cause to resign, he's accused of lying to the Senate over an extraordinary row with the Solicitor-General Justin Gleeson. This dispute revolves around the Direction, as you heard on AM, a Direction that the Attorney-General issued which the opposition claims has restricted access to the Solicitor-General, effectively the Second Law Officer in the land. Justin Gleeson flatly contradicts George Brandis' claim that he was consulted about the change before it was made. In a moment, the Attorney-General George Brandis joins us. But first, the Shadow Attorney-General Mark Dreyfus is with us. Mark Dreyfus, welcome to breakfast.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thanks for having me Fran.
KELLY: You've accused George Brandis, the Attorney-General of Australia of lying to the Parliament. What's your proof of that?
DREYFUS: It's quite clear that George Brandis has lied to the Parliament. He has claimed in a document that he tabled on the 4th of May that he consulted with the Solicitor-General Justin Gleeson about an important change to the way Justin Gleeson provides advice to the Commonwealth. And it wasn't true. And he's now lying about lying because he's still claiming that he did consult, even in the face of Justin Gleeson having put in a submission to the Senate Committee saying in unequivocal terms I was not consulted.
KELLY: Well the Attorney-General says he was consulted, that the Solicitor-General asked for a meeting because there were "insufficient procedures" in place to ensure appropriate coordination with agencies, between agencies and the Solicitor-General's office. And that they had this meeting. And that that's why he then issued this guide, this Direction.
DREYFUS: Well they had this meeting, on the 30th of November, and at no point in that meeting was the making of a Legal Services Direction raised. And at no point in the meeting was the very significant change in the way that the Solicitor-General is to provide advice mentioned. Namely, the requirement now is that George Brandis' written consent be obtained by a Secretary of a Department, the Prime Minister, the Governor-General, anyone who wants to get the advice of the Solicitor-General.
KELLY: So that's perhaps the more important element of this. Well come back to that in a second. But we do have now, a statement from the Solicitor-General Justin Gleeson and a statement from the Attorney-General that appear to be at odds. Justin Gleeson said "at no time at the meeting" that he had with the Attorney-General did the Attorney-General indicate he was considering a legally binding Direction. Could they both be right? Could they be at odds, in that the Attorney-General says the Solicitor-General wanted to change the Guidance Note and this is what he's come up with?
DREYFUS: No, they can't both be right. And I know who I'm believing here and it's Justin Gleeson, the Solicitor-General, who has served Australia very well for the last four and a half years. George Brandis is here now lying about lying. He's been caught out in this false statement to the Australian Parliament. The false statement is that he consulted with the Solicitor-General about this important change. He didn't. The documentation that is attached to the Solicitor-General's submission confirms that he didn't. And yesterday, in the Senate Inquiry, the Deputy Secretary of the Department also confirmed that Justin Gleeson the Solicitor-General was not consulted. Instead, George Brandis has made up his own mind, never having raised this important change with the Solicitor-General, and sprung it on him two days before the election on the 4th of May. Justin Gleeson immediately complained in writing to the Attorney-General saying "I was not consulted". And in his written submission yesterday George Brandis does not refer to that. He does not refer to the submission that Justin Gleeson has provided to the Senate Committee and provides absolutely no basis for his claim that he consulted with the Solicitor-General.
KELLY: Well that's the thing. It's about definitions. And the Attorney-General will join us in a moment. And I understand he's listening to this. But he did consult with the Solicitor-General. He consulted about Guidance Note number 11. Now the fact that he didn't consult about this particular binding change is the point of argument. But does that necessarily mean he's mislead the Parliament?
DREYFUS: It absolutely means he misled and you should not be taken in, Fran, by the nonsense that the Attorney-General is trying to spin here. He has been caught out misleading the Parliament. He didn't consult about the legal change that hes made. He didn't consult about the substance of the change that hes made and what's really tragic about this is that he's trying to convert the Solicitor-General's letter to him last year, which we got for the first time yesterday, it's a letter dated the 12th of May, into some basis for saying there was consultation. The letter is itself absolutely alarming because in it, the Solicitor-General tells the Attorney-General that he has misrepresented the nature of advice that Justin Gleeson had provided to the Commonwealth and makes other complaints. It's very concerning. The Attorney-General has no option here but to resign because he has behaved disgracefully. And regrettably he is going on with that disgraceful behaviour by pretending, or in some way now claiming, that he did consult. It's plain for anybody to see this - that he did not consult. It shouldn't be taken in Fran.
KELLY: Does this come down to whether the Attorney-General has the power to do this because the Legal Services Direction, as the Attorney-General asserts, regularises a practice made law more than fifty years ago that all requests for advice from Solicitor-General need to go through him, the Attorney-General? Now
DREYFUS: That's a separate matter. There's a substantial difference of opinion about what Section 12 means and Justin Gleeson is on one side of that together with the former Chief Justice of the High Court of Australia, Sir Anthony Mason, but let's not go into that. There's a factual matter in issue here. And a very important change made to the Solicitor-General's manner of giving advice. The fact of the matter is that George Brandis did not consult with Justin Gleeson about what he was going to do. He did not tell him at any point that he was proposing to make a legal change called the new Legal Services Direction and he didn't tell him that he was going to impose a requirement that be written consent from George Brandis. That is plain to see, for all to see.
KELLY: This points to a pretty dramatic breakdown, I would've thought, between the two Senior Law Officers in the land but perhaps more important, even, in real terms, is whether the Solicitor-General feels that he is being either cut out of giving advice on serious and major and contentious legislative matters, matters for instance concerning counter-terrorism law, concerning the establishment of the law around the plebiscite or is being misrepresented in terms of the advice he's given. Is that more serious than whether the Attorney-General has consulted or not?
DREYFUS: They're both very serious. The Attorney-General lying about having consulted the Solicitor-General is serious. And I actually do think you're right, that it's even more serious that this Attorney-General George Brandis is misrepresenting, it seems, the advice that he received from the Solicitor-General on the Citizenship Bill, a matter about which there was deep concern about its Constitutionality. I was involved in this as a member of the Intelligence Committee and it appears from the Solicitor-General's letter of the 12th of November that Senator Brandis has misled the Australian public about that, too.
KELLY: And Mark Dreyfus, just very briefly on another issue, the Attorney-General will meet LGBTI groups today to discuss the Marriage Plebiscite. You're going to meet them tomorrow, I understand. If the Government managed to reach a compromise, perhaps as to the funding of both sides and make the Bill self-executing, and the same-sex advocates ended up accepting the plebiscite, would Labor?
DREYFUS: We are always prepared to talk to the Government about any matter concerning the government of Australia but at the moment the LGBTQI community has said loud and clear, by substantial majority, that they do not want a plebiscite. They're concerned about the harm. We're concerned about the cost. I'm concerned about the complete break from the way in which we govern ourselves by the suggestion we should have these national opinion polls. Now it's going to take a lot of convincing, Fran.
KELLY: Mark Dreyfus, thank you very much for joining us.
DREYFUS: Thank you.
END
