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Estimates: Legal and Constitutional Affairs Legislation Committee: Attorney-General's Portfolio: Attorney-General's Department

Tuesday, 28 February 2017

Senator RHIANNON: In estimates on Monday of this week, Senator Brandis, you argued that Senate order 20C, for rolling disclosure of meetings with former ministers, is potentially invalid on the basis of advice from the Clerk of the House of Representatives. The Greens have obtained today advice from the Acting Clerk of the Senate, Mr Richard Pye, which confirms that the order is valid.

Senator Brandis: That does not surprise me, Senator Rhiannon.

Senator RHIANNON: I would like to table the letter, please, Chair. Could I table that letter?

Senator Brandis: Senator Rhiannon, I am not at all surprised—

Senator RHIANNON: Minister, I am still asking for—

Senator Brandis: I am sorry, but I am not at all surprised.

CHAIR: Senator Brandis, please let Senator Rhiannon complete her—

Senator RHIANNON: I seek leave to table it.

CHAIR: Just explain what this is, please, Senator Rhiannon.

Senator RHIANNON: It is a letter from the Acting Clerk of the Senate dated today under the subject line 'Senate order on former ministers and lobbying meetings'.

CHAIR: Yes, the committee agrees to that being tabled. What is your question?

Senator RHIANNON: I am seeking leave to table this document.

CHAIR: Yes, leave is granted.

Senator RHIANNON: He has done it? Okay. I did not hear. Thank you. The order seeks to bind ministers in the Senate in their capacity as representing ministers in the House. Will you commit to comply with the basic transparency now that the reach of the order has been clarified, Minister?

Senator Brandis: No because—

CHAIR: Sorry, have you got a copy of this, Senator Brandis?

Senator Brandis: It has just been handed to me.

CHAIR: Have you read it?

Senator Brandis: No, I have not.

CHAIR: If you are being asked about it, perhaps you should read it.

Senator Brandis: I can answer the question, Mr Chairman. The answer to your question, Senator Rhiannon, is no for these reasons: firstly, I have not read the advice from Mr Pyne and I want to look at it carefully and, secondly, I am told, though I have not read it, that there is contrary advice from the Clerk of the House of Representatives. I see you smiling like a crocodile, Senator Macdonald. As those like Senator Macdonald, the Father of the Senate, who have been around for a long time will know, the history of conflicting advice between the Clerk of the Senate and the Clerk of the House of Representatives is, I suspect, as old as federation itself. Surprise, surprise—the Clerk of the Senate always takes a view that is defensive of the rights and prerogatives of the Senate and the Clerk of the House of Representatives invariably takes a view that is protective and defensive of the rights and prerogatives of members of the House of Representatives. I do not know who is right. All I knew yesterday when I was answering those questions is that there was advice to the effect I expressed by the Clerk of the House of Representatives. I now know, because you have shown it to me, that there is advice to the contrary effect from the Clerk of the Senate. So what I would like do is read the advice from the Clerk of the House of Representatives, read the advice from the Acting Clerk of the Senate and make my own mind up.

Senator RHIANNON: The first sentence of the third paragraph reads:

“… the order requires Senate ministers to provide information about their own portfolios …”

That is in the first instance. Do you dispute that?

Senator Brandis: Do I dispute what—that it says that?

Senator RHIANNON: What I just read out.

Senator Brandis: Sorry—are you asking me whether I dispute that that is what it says?

Senator RHIANNON: Are you disputing that you will not follow that order?

Senator Brandis: I have just told you. The answer to your question is no, at least until, having examined the advice of the Clerk of the House of Representatives and having examined this advice, I arrive at my own view as to what I think is the correct position.

Senator RHIANNON: Why has the government failed to act to clarify the effect of order 20C for three months when it took us 24 hours to get this advice from our clerk?

Senator Brandis: Because the issue has only in the context of these estimates.

Senator RHIANNON: You are contradicting the evidence that you gave in an earlier estimates—

Senator Brandis: Really, how am I doing that?

Senator RHIANNON: when you said that you knew about this before these estimates—

Senator Brandis: Yes, that is true.

Senator RHIANNON: when you said you had been informed—

Senator Brandis: That is correct.

Senator RHIANNON: Thank you.

Senator Brandis: Well, how is that contradictory?

Senator RHIANNON: Could you now give your correct version that you will stick by?

Senator Brandis: I am sorry. I am lost to understand the contradiction. I said that I knew about it. Well, I did. I also said that the issue does not arise until these estimates are convened. That is also the case.

Senator RHIANNON: But you say it had not arisen until the estimates, but in estimates you told us how you already knew about it. You twist—

Senator Brandis: I am sorry, Senator Rhiannon, I did know about it, but the issue did not present itself until these estimates arose. I just do not follow what you are saying, I am sorry.

Senator RHIANNON: Which is, again, the classic that you use in every estimates. When you are facing a difficult question you say—

CHAIR: Senator Rhiannon, if you have questions, ask them. If you just want to chastise the minister or abuse him, that is not parliamentary.

Senator Brandis: Do not worry. I am used to it. Senator Rhiannon, I am sorry—I make no apology for being unable to follow your train of thought, on occasions.

Senator RHIANNON: No, it is not about what I am saying. There is a clear order that the Senate has passed. So the question that now arises is: will you instruct your department to comply with the order from now on?

Senator Brandis: Well, that is not the question that arises, with respect.

Senator RHIANNON: Well, it is a question I am asking.

Senator Brandis: The question that arises is as to the validity of the order, and there are contrary views about it, and I have not arrived at my own view. But, when I arrive at my own view, I will give some advice to the government.

Senator RHIANNON: So is that how you act on everything that comes before the Senate? It is up to you interpreting and providing your own view, rather than going on—

Senator Brandis: You are asking me about whether or not a particular order of the Senate should be complied with, which depends upon its validity. And, for reasons that I explained to you—or explained to another Senate committee, I should say, yesterday—an issue has arisen about its validity. Now, you have produced in the last few minutes some advice from the Acting Clerk of the Senate that upholds the validity. So there is dispute between the two clerks, apparently. That is nothing unusual. It is nothing unusual that two people might have different views about a particular order of the Senate or of the House of Representatives, for that matter, but I will consider both and arrive at my own view.

Senator RHIANNON: Mr Moraitis, what role have you had in ensuring this code is followed?

Mr Moraitis : I have not been aware of this issue till you brought it to our attention now. We will look into that.

Senator Brandis: I am not sure that it is really an issue for the Public Service, because this is a question of the privileges of the parliament. It may be, Senator Rhiannon, that Mr Pye is right and the House of Representatives Clerk is wrong. I do not have a view of that fact yet, because I have not thought about it carefully. But I am just flagging to you that, evidently, there is a difference between the two and, therefore, it is perfectly—I hope you would accept—reasonable for the government not to take steps until it has arrived at its own view as to which of those different points of view is correct.

Senator RHIANNON: Further to some of your comments yesterday, Minister, I put your view—and these were your words: '"Lobby, advocate or have business meetings" in the Statement of Ministerial Standards mean the same thing as the Lobbying Code of Conduct, which defines lobbyists only as'—

Senator Brandis: Well, I did not say that, actually.

Senator RHIANNON: No, you repeated it many—

Senator Brandis: Excuse me, Senator, I did not say it means the same thing.

Senator RHIANNON: Minister, you are interrupting me every time I try and ask a question, and I think you should listen to the whole question.

Senator Brandis: Well, you are just misquoting me.

CHAIR: Sorry, I was distracted. Can you start your question again, Senator Rhiannon, and I will listen intently. Senator Rhiannon?

Senator Brandis: I am a bit fussy about language, as you are aware—

Senator RHIANNON: Yesterday the minister, the first time that we discussed this matter, put his view, and these were his words, '"Lobby, advocate or have business meetings" in the Statement of Ministerial Standards mean the same thing as the Lobbying Code of Conduct, which defines "lobbyists" only as third-party lobbyists, rather than, for instance, industry associations like the Business Council of Australia or the Queensland Resources Council.'

Senator Brandis: What document—

CHAIR: Senator Brandis, I have not heard the question yet—

Senator RHIANNON: I am now coming to my question. Your contention was that, because of the narrow definition of 'lobbyist' in the Lobbying Code of Conduct, the Statement of Ministerial Standards does not apply in Mr Macfarlane's situation. Is that still your view?

Senator Brandis: Before I answer that, you are attributing some words to me—from what document are you quoting?

Senator RHIANNON: I really think that it is fair that you answer—

Senator Brandis: No, I think that it is fair to me that if you are going to attribute words to me you tell me what your source it.

Senator RHIANNON: It continues on from a very clear conversation we had yesterday and you are using classic tactics when you do not answer the question.

Senator Brandis: No, I do want to answer the question. I will answer the question, but, before I do, I want to know whether you are quoting me in direct speech or merely your interpretation or paraphrase, or some third-party's paraphrase, of what I said. Which is it?

Senator RHIANNON: You put the view—

Senator Brandis: What document are you quoting from?

Senator RHIANNON: They were my words. You put your view that the words—and the words are from the Statement of Ministerial Standards—'lobby, advocate or have business meetings' mean the same thing. You made that comparison a number of times, trying to dilute the argument by comparing it to lobbyists, which has got nothing to do with it.

Senator Brandis: Why won't you tell me what document you are quoting from?

Senator RHIANNON: I am relaying the conversation we had yesterday.

Senator Brandis: So you are not quoting from a document.

Senator RHIANNON: Chair, I would like to move on to another question to try and get some answers.

Senator Brandis: I am sorry, Senator Rhiannon, if you are not quoting from a document, you should not have attributed words to me which are now revealed to be your recollection of what I said. If you are reading from Hansard—there is only one official record of this—

Senator RHIANNON: The Hansard was not out when I came to it. It is quite an accurate representation.

Senator Brandis: Okay, that is fine. So what you said is not strictly correct; however, let me say again what I said last night. In interpreting those words in the Statement of Ministerial Standards, in my view, one would look in the first instance to the definition of 'lobbying' in the lobbyists code. Now, that is not quite what you said.

CHAIR: Senator Rhiannon, if you want to be more specific, would you like to put a question on notice about that and refer Senator Brandis to where he said those words?

Senator RHIANNON: I will certainly come back to it, because—

Senator Brandis: I think it is a narrow difference, particularly given the absurdity of—

Senator RHIANNON: Thank you—it is good that you have come to a 'narrow difference'—

Senator Brandis: It is a narrow difference, Senator Rhiannon, given the absurdity of the last two hours.

CHAIR: Senator Brandis, that will do. Senator Rhiannon wanted to ask one other question on a different matter.

Senator RHIANNON: With regard to, effectively, what has now played out, you are avoiding dealing with a substantive issue, which is about Mr Macfarlane's—

Senator Brandis: How am I avoiding it?

CHAIR: It is not a different question, but let the senator finish the question, and then you can give your answer, Senator Brandis. It will be the last question and answer for the night.

Senator RHIANNON: It is about Mr Macfarlane's involvement in making representations on behalf of—

Senator Brandis: Queensland Resources Council.

Senator RHIANNON: his new employers to ministers in the government.

Senator Brandis: What is your question?

Senator RHIANNON: My question is: do you acknowledge that has happened?

Senator Brandis: That what has happened—that he has made representations?

Senator RHIANNON: Yes.

Senator Brandis: I know he has made representations.

Senator RHIANNON: And you are basing that on your direct knowledge—

Senator Brandis: Yes.

Senator RHIANNON: or on that statement?

Senator Brandis: On my direct knowledge.

Senator RHIANNON: He has made representations. What form have those representations taken?

Senator Brandis: Well, the issue on which I know that Mr Macfarlane has made representations is in relation to amendments to the Native Title Act.

Senator RHIANNON: Right. So, how many meetings has he had with you about that?

Senator Brandis: Meetings? None.

Senator RHIANNON: How many conversations has he had with you about that?

Senator Brandis: Several.

Senator RHIANNON: And he has put a case for the changes going ahead?

CHAIR: Well, I am not sure that he would be willing to answer that.

Senator Brandis: I am comfortable answering that, because what Mr Macfarlane has said to me in telephone conversations is nothing different from what he has said on the public record and in media statements, and that is that he urged the government to move legislatively to correct for the McGlade decision and then congratulated the government on its promptness in doing so.

Senator RHIANNON: Do the comments coming from the Townsville Bulletin about Mr Macfarlane saying that he would talk to his 'good mates in Canberra', along the lines of 'in order to make sure our native title laws are amended in the wake of a Federal Court decision which threatens the Adani coalmine' sum up the essence of how he has approached you and other ministers?

Senator Brandis: No, for two reasons in my particular case. First of all, I do not know that Mr Macfarlane would call me a good mate of his, but I do have a cordial relationship with him. Secondly, although Mr Macfarlane was of that view, as he has said both publicly and privately, independently of Mr Macfarlane, I was also of that view, and others, even before Mr Macfarlane—including Dr Lynham, the Queensland Labor minister for mines—had urged that view upon me. So I agree with Mr Macfarlane, or, perhaps, Mr Macfarlane agrees with me; we agree with one another. But any decision I may have made and any recommendation I may have made to the government was not influenced by Mr Macfarlane, because it was a view I already held. But, that having been said, I do not want to be ungracious. I welcome his input.

Senator RHIANNON: Coming back to Mr Macfarlane: if you accept order 20C, wouldn't you then agree—considering the cooling-off period still stands—that Mr Macfarlane's actions are inconsistent with order 20C?

Senator Brandis: Well, I do not think that is right, because Mr Macfarlane was not acting, in my view, as a lobbyist, for the reasons I explained yesterday, because, in my view—and this is consistent with the lobbyist code of conduct—to be a lobbyist, you have to be a paid third party—

Senator RHIANNON: Point of order, Chair. This is where you keep muddying the waters. It is not about the lobbyist code of conduct. It is about post-ministerial employment, 2.24, and that is not about that lobbyist code that you keep quoting.

Senator Brandis: But you are the one who referred to it.

Senator RHIANNON: No, I was referring to it to show your inconsistency. You know what 20C is, and there is post-ministerial employment. That was what my question addressed. Isn't that where he has been—

Senator Brandis: If that is the footing on which you are putting this to me, in nothing Mr Macfarlane said to me—which is no different, by the way, from anything he has said on the public record—was he drawing upon information which he had received in his capacity as a minister.

Senator RHIANNON: To remind you of those words:

Senator Brandis: Senator, could I finish the point.

Senator RHIANNON: It reads:

“Ministers are required to undertake that, for an eighteen month period after ceasing to be a Minister, they will not lobby, advocate or have business meetings with members of the government, parliament, public service or defence force on any matters on which they have had official dealings as Minister in their last eighteen months in office.”

That describes Mr Macfarlane and his actions with you.

CHAIR: Senator Rhiannon, order! If this is a question about the Ministerial Code of Conduct, I suggest that this is not the estimates committees to deal with it. But, in any case, your time is five minutes over the allotted 15 minutes.

Senator Brandis: May I answer the question, please?

Senator RHIANNON: Yes.

Senator Brandis: There are two reasons why there has been no breach, in my opinion, by Mr Macfarlane: first of all, because he was not a lobbyist, for the reasons I explained yesterday: because he was not a paid third-party advocate; he was representing his own industry association, which represents the stakeholders. That is not what 'lobbying' means. Secondly, there is nothing that Mr Macfarlane said to me that relied upon anything that had to do with his responsibilities as a minister. The Native Title Act is an act administered by the Attorney-General's Department. The occasion for the conversation arose from a legal issue created by a decision of the Full Court of the Federal Court. It is perfectly clear to me that, when Mr Macfarlane was a minister in government, this was not an issue that was within his portfolio.

CHAIR: Thank you very much, Senator Brandis. The hearing is now terminated.

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