Introduction and background
On 15 September 2016 the Senate referred the following matter to the
Senate Legal and Constitutional Affairs References Committee (the committee)
for inquiry and report by 8 November 2016:
the nature and scope of the consultations prior to the making
of the Legal Services Amendment (Solicitor-General Opinions) Direction 2016,
with particular reference to:
- the extent to
which any consultation drew on the knowledge or expertise of persons having
expertise in the relevant fields;
- whether persons likely
to be affected by the proposed instrument had adequate opportunity to comment
on its content;
- what was the
form of the consultation, including whether any written submissions were
- the timing of when any
consultation occurred; and
- any related
Conduct of inquiry
In accordance with usual practice, the committee advertised the inquiry
on its webpage, and also wrote to a number of organisations and individuals
inviting written submissions by 3 October 2016. The committee received 7
submissions, listed at Appendix 1.
The committee held a public hearing in Canberra on 5 October 2016, and
an additional hearing in Canberra on 14 October 2016. A list of the witnesses
who appeared at the public hearing is provided at Appendix 2, and additional
information received by the committee at Appendix 3.
Structure of this report
There are four chapters in this report.
Chapter 1 describes the context and background to the inquiry.
Chapter 2 discusses the views of the Attorney-General in relation to the
consultations described in the terms of reference, and the relevant views of legal
Chapter 3 discusses the Solicitor-General's views on the consultations undertaken
by the Attorney-General that are described in the terms of reference.
Chapter 4 outlines the committee's views and recommendations.
Section 12 of the Law Officers Act 1964 (Cth) (the Law Officers
Act) provides that:
The functions of the Solicitor General are:
- to act as counsel for:
- the Crown in right of the
- the Commonwealth;
- a person suing or being
sued on behalf of the Commonwealth;
- a Minister;
- an officer of the
- a person holding office
under an Act or a law of a Territory;
- a body established by an
Act or a law of a Territory; or
- any other person or body
for whom the Attorney General
requests him or her to act;
furnish his or her opinion to the Attorney-General on questions of
law referred to him or her by the Attorney-General; and
- to carry
out such other functions ordinarily performed by counsel as
the Attorney General requests.
Section 55ZF of the Judiciary Act 1903 (Cth) provides that the
Attorney-General may issue directions to apply to Commonwealth legal work,
either generally or in relation to a particular matter. The Legal Services
Directions 2005 are binding rules that provide obligations with respect to how
Commonwealth agencies should conduct themselves during litigation. Guidance Notes
are issued to assist Commonwealth agencies comply with their obligations.
Section 17 of the Legislation Act 2003 (Cth)
provides that rule‑makers should consult before making legislative
- Before a legislative instrument is made, the rule‑maker
must be satisfied that there has been undertaken any consultation that is:
considered by the rule‑maker to be appropriate; and
reasonably practicable to undertake.
- In determining whether any consultation that was undertaken
is appropriate, the rule‑maker may have regard to any relevant matter,
including the extent to which the consultation:
- drew on the knowledge of
persons having expertise in fields
relevant to the proposed instrument; and
- ensured that persons
likely to be affected by the proposed
instrument had an adequate opportunity to comment on its proposed content.
- Without limiting, by implication, the form that
consultation referred to in subsection (1) might take, such consultation
could involve notification, either directly or by advertisement, of bodies
that, or of organisations representative of persons who, are likely to be
affected by the proposed instrument. Such notification could invite submissions
to be made by a specified date or might invite participation in public hearings
to be held concerning the proposed instrument.
On 4 May 2016 the Attorney-General tabled the Legal Services Amendment
(Solicitor-General Opinions) Direction 2016 (the Direction) in the Senate.
The Explanatory Statement to the Direction stated that the purpose of the
Direction was to clarify the circumstances in which an opinion on a question of
law may be sought from the Solicitor-General pursuant to paragraph 12(b) of the
Law Officers Act and to regularise the process by which referrals to the Solicitor-General
for opinions are made.
The key provision of the Direction, at clause 10B.3 of Schedule 1,
No person or body referred to in paragraph 12(a) of the Law
Officers Act, other than the Attorney-General, may refer a question of law to
the Solicitor-General except with the consent of the Attorney-General.
The Direction further specifies that if such a person or body wishes to
refer a question of law to the Solicitor-General, they must seek the Attorney-General's
written (signed) consent to do so, with the request copied to the
Attorney-General's Department (Department). Should the Solicitor-General receive
a reference for advice without the signed consent of the Attorney-General, the Solicitor-General
must seek the Attorney-General's consent to (or rejection of) it before
proceeding. As noted above, the Direction applies to all persons and bodies
referred to in paragraph 12(a) of the Act; while the Legal Services Directions
otherwise only apply to 'non-corporate Commonwealth entities'. The Explanatory
Statement stated that this was 'not expected to have any practical impact' on
the operation of the Direction.
In the Explanatory Statement, the Attorney-General advised the Senate that
before the instrument was made, he 'considered the general obligation to
consult' imposed under section 17 of the Legislation Act 2003 (Cth)
and, '[a]s the Direction relates to the process for referring a question of
law to the Solicitor-General, the Attorney-General has consulted the
The Attorney-General also answered numerous questions in the Senate
about this matter between 12 September 2016 and 12 October 2016. These
[Senator Collins] ...The Solicitor-General has said, 'I wasn't
consulted about the direction'. Is the Solicitor-General correct?
[Attorney-General] ...I consulted the Solicitor-General about
the matter at meeting in my office on 30 November 2015. I invited the
Solicitor-General to put his ideas in writing, which he did, and I considered
those as well. When I made the direction, I was advised by my department that
the requirements of section 17 of the Legislation Act had been satisfied.
[Senator Collins] ...I refer to the Attorney-General's answer in
question time on 12 September in which he claimed that the Solicitor-General
was consulted on the direction 'during the course of a meeting in my office on
30 November 2015'. Does the Attorney-General stand by this statement?
[Attorney-General] Obviously I do, Senator, and I have just
repeated it. That is my position.
Both the content of the Direction and the background to its tabling
became the subject of media attention in June 2016. On 16
June 2016 the Australian Financial Review (AFR) reported that the Solicitor-General
had challenged the Attorney-General's claim that the Solicitor-General had
been consulted in relation to the Direction. The AFR report stated that the Solicitor-General
had written to the Attorney-General on 11 May 2016 'noting that he did not
accept that he had been consulted as Senator Brandis had asserted'.
Citing 'an extensive record of correspondence, meeting minutes and
reports about the behind-the-scenes meetings about the [Direction]', the AFR
reported that in November 2015 the Attorney-General met with the Solicitor-General,
the Secretary of the Attorney-General's Department and the Australian
Government Solicitor, at which time the Solicitor-General raised concerns about
the management of requests for advice that were submitted to him. Pursuant to an
agreement at the meeting, suggested amendments to the guidance notes for such
advice were provided to the Attorney-General in late March. No response was
received from the Attorney-General before 4 May, when the Direction was tabled
and the Solicitor-General advised accordingly. The AFR article also stated that
'a range of officials...were instructed not to consult the Solicitor-General or
his office or to notify him [in advance] of the change'.
In response to an enquiry from the AFR, the Attorney-General's office
stated that there was 'uncertainty in government about the procedure for
briefing the Solicitor General', and that the new arrangement sought to clarify
the relevant procedures. The office said that following the November 2015
meeting and subsequent correspondence with the Solicitor-General and other
senior officials, the Attorney-General 'considered the suggestions carefully
and incorporated some, but not all of them, in the final documents'. The Attorney-General
described the Direction as 'inspired by a request by the Solicitor-General
himself, to regularise the practice and make it consistent with the statutory
requirement that is section 12(b) of the
[Law Officers Act]'. 
Disallowance motion in the Senate
On 13 September 2016, Senator the Hon Penny Wong, Leader of the
Opposition in the Senate, gave notice of a motion to disallow the Direction, to
be moved on the next sitting day.
In accordance with the Legislation Act 2003 (Cth), unless the
motion is resolved or withdrawn by 28 November 2016, the Direction will be
disallowed on that date.
Consideration by the Senate Regulations and Ordinances Committee
On 14 September 2016, the Senate Standing Committee on Regulations and
Ordinances (Regulations and Ordinances Committee) advised the Senate of its
concern that the Direction contained matters more appropriate for parliamentary
enactment (i.e. primary legislation) than a legislative instrument. Noting that
subsections 12(a)(i) to (vii) of the Law Officers Act allocated
functions to the Solicitor-General that did not involve the Attorney-General, the
Regulations and Ordinances Committee stated that:
...in effect, this direction appears to narrow the scope of the
Solicitor-General's functions prescribed under subsections
12(a)(i)-(a)(vii)...because, for example, ministers or officers of the
Commonwealth can no longer seek the advice of the Solicitor-General on
questions of law without the consent of the Attorney-General, unless the
question of law arises in the course of a matter in which the Solicitor-General
is acting as counsel.
Given this, the [Regulations and Ordinances] committee
considers that the changes effected by the direction may be regarded as more
appropriate for parliamentary enactment.
On 24 October 2016 the Solicitor-General announced that he was resigning
from his position, effective from 7 November 2016. In a letter informing the Attorney-General
of his resignation, the Solicitor-General stated that
...the best interests of the Commonwealth can be served only
when its first and second Law Officers enjoy each other's complete trust and
confidence within a mutually respectful relationship. When such a relationship
is irretrievably broken, as is the case here, and each Law Officer holds a term
of office established by the Constitution or statute which will not expire in
the near future, there must be some resolution to the impasse...My decision does
not amount to a withdrawal of any position I have taken in relation to matters
of controversy between us, including before the Senate Legal and Constitutional
Affairs References Committee.
In response, the Attorney-General thanked the Solicitor-General for his
I agree with the view, expressed in your letter, that in the
circumstances this is the proper course for you to take. I take this
opportunity to thank you for your service as the Solicitor-General of the Commonwealth
and wish you well in your future career.
A note on terminology
In the remainder of this report, a reference to the Solicitor-General is
to Mr Justin Gleeson SC, Solicitor-General of the Commonwealth of Australia
from 14 February 2013 to 7 November 2016, unless otherwise specified.
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