The reporting in our press regarding the ‘Gleeson Affair’ has been woeful. Most people simply do not understand what the argument is about let alone comprehend the ramifications of this policy decision for our democracy. I am unsure if this is due to our journalists being sloppy and uninformed, partisan in their reporting, or simply exhibiting an ignorance of the law and political science. Perhaps it’s all these factors.
Everyone should be appalled. Like on the day of the Dismissal we should be out in the streets in massed protest. The actions of our current Attorney-General are not just reprehensible and dishonorable – they threaten to undermine the good function of our government and turn Australia into a banana republic.
As a legal academic I fully understand the predicament that Solicitor-General Justin Gleeson, SC, found himself in. No wonder he could not sleep at night. He notified the government of his intention to resign on Monday because he is an honorable man. He had no choice.
Many of our papers made light of his distress. He was portrayed as being weak and personally interested. Not up to the job. I was infuriated every time I encountered one of these smears. I remain ashamed. What has happened to our country? An honorable man lies awake at night fretting for the health of our democracy and he is demeaned by many commentators? The Murdoch press makes me want to vomit.
Why am I so upset? In simple terms Mr Brandis has now turned the Solicitor-Generals Office into an office of the Government. At the heart of this matter is a despicable and almost treasonous direction from the Attorney-Generals office that any matter that the Solicitor-General might consider, from now on, has to be first cleared personally by Mr Brandis.
However this is not just Mr Brandis acting alone. The Prime Minister is also responsible for this piece of bastardry if only because of his utter lack of spine. He is a lawyer and so should be as appalled and sickened by these events as are the rest of the profession. However it is becoming ever more obvious, everyday, that Mr Turnbull has sold his soul for an empty chair. As long as he can clutch to the reigns of power it is apparent that it matters not a jot what dishonorable actions need to be sanctioned. Mr Turnbull has his bauble so professional ethics and the public interest can go hang.
To understand just how appalling this policy decision is requires a quick description of what the Solicitor-Generals office does. The function of the Solicitor-General has traditionally been one in which a well respected lawyer, aided by a highly qualified legal team, provide legal advice regarding the actions of Statute or Common Law to any member of the Parliament who might wish to approach them. This advice might even be tendered confidentially if deemed appropriate. In this way all members of our parliament were assured of being provided with, and receiving, impartial and accurate legal advice which could then be advertised as being an opinion of the Solicitor-General. In this way the office has always been one which is entirely impartial. It was politically neutral. The SC would declare how the law (or a proposed amendment to the law) might operate.
The Attorney-General was responsible for generating a law and the Solicitor-General for advising on the likely legal impact or actions of a proposed amendment to the existing laws. But not now.
Now Mr Brandis has decided that the current government will no longer provide this service to the parliament. Like a banana republic, whether or not a proposed amendment to a law will even be appraised prior to its introduction to the parliament, will now be entirely at the behest of the government of the day. The very same government that generates the proposed legal changes will now be able to veto any adequate and independent appraisal of those amendments before their introduction to the House. If the government does not want a law to be appraised in an impartial manner all it need do is say ‘no’. The implications are dangerous. Moreover this new policy fails to abide by either parliamentary tradition or normal legal practice.
The relationship of the two top legal officers in Australia is often strained and almost always very formal. Which is entirely appropriate. These two offices need to work in unison however the office of the Attorney-General is a political office while the office of the Solicitor-General is an arm or the Judiciary. Yes the AG might be the highest legal officer in the land but this is a purely ceremonial designation. It has to be ceremonial due to the division between the Executive Office and the Judicial Branch, a division that is explicitly enunciated in our Constitution.
Why is this significant? Not only can the government now suppress the generation of any legal opinion regarding its own proposed laws that it thinks is likely to be unhelpful to its political cause, also any opposition or small party request for advice will now be telegraphed immediately from the Judicial Branch to the Executive. It means that the highest legal arbiter in our land has been handcuffed to whatever politician happens to sit in the AG’s chair.
No wonder the partisan hacks and our ‘opposition’ have been so circumspect regarding this matter. If most Aussies did understand these matters fully then Mr Brandis would be tarred and feathered and run out of Canberra on a rail. Turnbull we need not worry about. He is shrinking in public view and will very soon disappear entirely if not stabbed in the back by one of his colleagues first.
Poor fellow my country…
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