Views of the Attorney-General
Prior to the Direction
This chapter describes the perspective of the Attorney-General on the
consultation process he conducted with the Solicitor-General prior to issuing
the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 (the
On 12 November 2015, the Attorney-General received correspondence from the
Solicitor-General requesting a meeting to discuss issues associated with the
processes for seeking his advice. The Attorney-General quoted the Solicitor-General
as writing: 'the processes for coordination of my advice function with my
responsibilities to appear, and for coordination of advice across government,
are not working adequately'.
In order to discuss the issues raised in the letter further, a meeting
was held on 30 November 2016 at the Attorney-General's office in Canberra. The Attorney-General
states in his submission:
I met with the
Solicitor-General to consult him on, amongst other things, the following issues,
which he had raised in his letter of 12 November:
- the '[p]rocess for seeking ...Solicitor-General
advice in significant matters';
- 'procedures...to ensure appropriate coordination
within Commonwealth agencies, and between agencies and [the Solicitor-General's]
office, in matters of high legal importance';
- how processes might be 'followed in a manner
that best facilitates [the Solicitor-General's] performance of [his] statutory
- 'the processes for coordination of [the Solicitor-General's]
advice function with [his] responsibilities to appear, and for coordination of
advice across government'.
In other words the Solicitor-General was consulted, at the
meeting, about the very issue dealt with by the Direction and Guidance Note.
That was the main purpose of the meeting (although other unrelated matters were
The Attorney-General invited the Solicitor-General to provide written
suggestions for dealing with the issues that he raised, and on 11 March 2016, the
Attorney-General's Department (the Department) provided the Attorney-General's Office
with a draft copy of written suggestions from the Solicitor-General relating to
the briefing process. On 21 March 2016, the department circulated a finalised
copy of the Solicitor-General's suggestions which all related to a redrafting
of Guidance Note 11.
In his submission, the Attorney-General notes that he had thanked the Solicitor-General
for his suggestions at a meeting dealing with other matters on 23 March 2016.
The Attorney-General indicated to the Solicitor-General at that meeting that the
suggestions would be considered.
An extract of the Solicitor-General's written suggestions was included
in the Attorney-General's submission as follows:
 Before accepting a brief to advise, the
Solicitor-General will notify the Attorney-General of the request to ensure
that the Attorney is content to refer the question of law for the
Solicitor-General's opinion under s 12(b) of the Law Officers Act.
The opinion will also be provided to the Attorney-General.
According to the Attorney-General, he '...took that recommendation [that
the Solicitor-General advise the Attorney-General of a request and with a copy
of the opinion] into account when formulating the Direction'.
...[a]s required by the Law Officers Act, and as is provided
for in the Direction, the procedure proposed by the Solicitor-General envisaged
the Attorney-General giving his consent prior to the Solicitor-General's
provision of an opinion on a question of law.
The Attorney-General sought a meeting with the Solicitor-General in
early April 2016, but was advised that the Solicitor-General was overseas and unavailable
until 19 May 2016.
In late April 2016, the Attorney-General decided that a new Direction, in
addition to the Guidance Note, was necessary to address the issues that had
been raised by the Solicitor-General.
The Secretary of the Department confirmed that:
On 20 April 2016, the Attorney-General advised the department
that he wished to make changes to Guidance Note 11 and also that he intended to
issue a Direction mirroring the contents of the Guidance Note.
The Office of Parliamentary Counsel (OPC) clarified that although they
were involved in drafting the Direction, but not the Explanatory Statement, they
were 'not responsible for undertaking consultation in relation to legislative
instruments. That is done by the rule-maker or by the relevant instructors
on behalf of the rule-maker'.
Consultation between the Department and OPC on the content of the Direction
occurred on 27 and 28 April 2016, and a final version was provided to the
Department on 29 April 2016.
The Attorney-General states that he took into account the Solicitor-General's
proposals when the new Direction and Guidance Note were prepared prior to the
dissolution of the 44th Parliament, following liaison between the Attorney-General's
Office and Department.
In his submission, the Attorney-General is emphatic that the Solicitor-General
was consulted on the '[p]rocess for seeking...Solicitor-General
advice in significant matters', both verbally at the meeting on 30 November
2016, and through the subsequent written suggestions the Solicitor-General
made, and that input provided during these consultations was taken into account
in developing the new Direction and Guidance Note.
The Attorney-General insists:
...this consultation was appropriate and sufficient for the
purpose of s 17 of the Legislation Act. Given that the Direction (like the
Guidance Note) makes no change to the law contained in the Law Officers Act,
and given that it is entirely procedural in nature, I did not consider that
further consultation was necessary or appropriate.
To support his position, the Attorney-General provided evidence that this
interpretation is supported by advice obtained from the Department:
Section 17 of the Legislative Instruments Act 2003
[sic] provides that before a rule-maker makes a legislative instrument the
rule-maker must be satisfied that any consultation that is considered to be
appropriate and is reasonably practicable to undertake, has been undertaken.
Due to the nature of the power exercised by you under s 55ZF of the Judiciary
Act 1903 and the subject matter of the instrument, we consider that your
consultation with the Solicitor-General would meet this obligation.
After the Direction
On 4 May 2016, the new Direction and Guidance Note were issued. The
statement included in the Explanatory Statement also reflects this advice. It
states that: 'As the Direction relates to the process for referring a question
of law to the Solicitor-General, the Attorney-General has consulted the
On the day the Direction was issued, the Attorney-General informed the Solicitor-General
via a letter thanking him for his suggestions regarding the Guidance Note.
In his submission, the Attorney-General notes that '[s]oon after the
Direction and Guidance Note were issued, I became aware that the
Solicitor-General was dissatisfied with aspects of those instruments'.
Further, the Attorney-General invited the Solicitor-General to discuss any
concerns with him, but has stated that he did not receive a response.
In evidence to the committee at a public hearing, the Attorney-General
described a breakdown in the relationship between himself and the Solicitor-General
since 4 May 2016:
The Solicitor-General also said, on this matter...the
Attorney-General has refused to engage with me on this topic...That is not the
case. After the election occurred, as you know, several days passed before the
outcome of the election was known, and several more days passed before the new
government was sworn in. I wrote to the Solicitor-General on 16 August, some
two months ago, well before this Senate committee was convened, and invited him
to put before me his views. I have heard nothing from the Solicitor-General by
way of reply to my letter of 16 August, and I find that curious.
In his submission, the Attorney-General states that 'it cannot sensibly
be suggested that the Solicitor-General was not consulted',
and 'it should go without saying that while the Legislation Act provides
for consultation prior to the making of a legislative instrument, it does not
require suggestions made in the course of that consultation to be accepted by
The Attorney-General's assertion that he consulted the Solicitor-General is
founded on the requirements is set out in the Legislation Act 2003
(Cth). The Attorney-General states that:
...the Legislation Act does not stipulate the form or extent of
consultation that should take place prior to the making of a legislative
instrument such as the Direction. It does not, for instance, require that an
instrument be provided in draft form to any particular stakeholder prior to its
being made. Of course, there may be instances where it would be appropriate to
do so. Given the entirely procedural and routine nature of the Direction,
however, I did not consider that this was required here.
At a public hearing the Attorney-General elaborated on the comments made
in his submission both in terms of his interpretation of what it means to
consult, and on the legislative requirements he was required to comply with. On
the meaning of the word 'consult' he stated that:
To be clear, this consultation, both at the meeting and in
the Solicitor-General's subsequent written feedback, occurred prior to my
deciding what should be done about the process for referring questions of law
to the Solicitor-General. That is how consultation generally works. The person
doing the consulting seeks the views of those being consulted and then makes
decisions based upon what emerges from that process of consultation. When I use
the word 'consult' what I mean is to confer about, deliberate upon, debate,
discuss or consider a matter. When one consults someone, one asks their advice,
seeks their counsel, has recourse to that person for instruction, guidance or
Regarding the legislative requirements, the Attorney-General stated
Some of the submissions to this inquiry, as well as some
statements by members of parliament, appear to proceed on the premise that
section 17 of the Legislation Act requires something much more than it actually
does. It does not require a person who is consulted to be specifically aware of
any precise intention or lack of intention that a rule maker may have. Under
section 17, it is enough—indeed, it is more than enough—that a rule maker be
satisfied that there has been appropriate consultation about the subject matter
of a legislative instrument.
The Attorney-General was presented with an alternative interpretation
posited by the Solicitor-General (discussed in the following chapter of this
report). In response to questioning at the public hearing about the
contradictory views of the Solicitor-General, the Attorney-General replied:
Mr Gleeson, who is a very good lawyer, plainly does consider
the directions to be unlawful...Having been a lawyer all of my adult life, I am
extremely familiar with the view that lawyers have different views about
contestable legal issues...
At the public hearing, the Attorney-General's view on the consultation
was challenged by members of the committee. In response to the direct question:
'Did you consult the Solicitor-General prior to issuing the new legal services
direction on 4 May 2016?', the Attorney-General replied:
Yes, I did—on 30 November in my office, and by inviting him
to put forward his ideas, which he did in a letter which I received in March.
He put his ideas forward in the form of amendments to the guidance note, but
the words of the guidance note and the words of the legal services direction
are actually identical...I regarded the conversation on 30 November in my office
about the issue of the way in which the Solicitor-General was to be briefed,
and during the course of which there was a specific reference to the legal
services directions as being at issue, as constituting the relevant
The Attorney-General was also asked if the Explanatory Statement made in
the Senate on 4 May 2016 was true. The Attorney-General replied:
I believe it to be true. I have been advised by my Department
that they believe it to be accurate. The Solicitor-General considers it to be
inaccurate, because his understanding of the word 'consult' in section
17 of the Legislation Act is different from my understanding of the word
'consult' and the dictionary's understanding of the word 'consult'.
A further issue discussed at the hearing related to meeting notes taken
by the Attorney-General's staff during the meeting on 30 November 2016, and
whether those notes indicate that the Direction was discussed with the Solicitor-General.
The Attorney-General responded:
...on the very first page of the notes this is what they say:
4 x docs at issue
1. Law Officers Act
Which I think is acknowledged as a reference to the legal
3. Guidance note 11.
4. NPS – 2A
So the issue of the legal services direction, for the purpose
of this discussion, was explicitly raised.
The Attorney-General attributed conflicting accounts of whether the
Direction was discussed at the 30 November 2016 meeting to the fact that the Solicitor-General's
notes were a record of meeting outcomes, and the while the Direction was
discussed, there was no relevant outcome related to it that warranted
CHAIR: Why did the Attorney-General's Department, in
responding to Mr Gleeson on that basis, not include in the notes for that
meeting explicit reference to a legal services direction, and only a guidance
Senator Brandis: There are a couple of things. First of all,
obviously, you would have to ask them. Secondly, it was a very abbreviated
note. Third, it is mis-described as notes of the meeting. It was not. It is
described as— the heading of the document is 'Meeting Outcomes', which to me
suggests decision points or action points. What I have told you several times
now is that no decision was made at that meeting to issue a legal services
direction, because we were talking about the substance of the issue, not the
form of a legal instrument, if any, which would be promulgated to reflect that
of which we had been speaking. Lastly, may I say that there are only two sets
of contemporaneous notes of the meeting, and those [are] the ones I have
The Attorney-General maintained his position throughout the hearing that
he consulted the Solicitor-General on the Direction, but conceded that the
discussion he had with the Solicitor-General regarding the Direction on 30
November 2016 'focused on the substance, not the form of the rules':
Senator WATT: But you never consulted him, did you?
Senator Brandis: As you know, I did. It was an issue he
brought to me.
Senator WATT: He did not bring the issue of the direction to
Senator Brandis: It was a problem that Mr Gleeson brought to
me and wanted me to fix, and we had a discussion about how to do it. The discussion
was focused on the substance, not the form of the rules, and ultimately—and, I
issued the two instruments, guidance note No. 11 and a legal services
direction, which were in identical words.
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