Serial controversy magnet Brandis has turned A-G office into a joke. Go now! – By Anna Talbot

Anna Talbot 29 October 2016, 7:00am 34

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George Brandis is often portrayed as a “slug” by cartoonists, but that seems like an insult to molluscs (Cartoon by John Graham)

Serial controversy magnet, George Brandis, keeps tainting the office of A-G. The Australian Lawyers Alliance (ALA), which represents 200,000 Australian lawyers, have called on him to resign. ALA’s Anna Talbot and Greg Barns report.

AS THE fallout from the resignation of Solicitor-General Justin Gleeson continues, what has emerged is that this nation’s first law officer, Attorney-General George Brandis, does not value independent intellectually robust legal advice unless it confirms the political agenda of the government of which he is a part. 

It was an overt attempt at political control that led to events culminating in Gleeson’s resignation this week — a Direction issued by the Attorney-General demanding that all requests for advice from the Solicitor-General come through the Attorney’s office.

The dispute has turned into a “he said, he said” debate, with popular opinion uniformly supporting the Solicitor-General. Brandis has said that he consulted Gleeson; that, in fact, the Direction stemmed from a meeting Gleeson requested. Gleeson, in turn, said that the Direction severely curtails the independence of the office of the Solicitor-General; that he was not consulted and had he been consulted he would have objected in the strongest possible terms. Given Brandis’ erratic track record when it comes to the truth, a reasonable person would think that Gleeson’s version of events is to be preferred.

‘Given Brandis’ erratic track record on truth,

a reasonable person would think that

Gleeson’s version of events is to be preferred’

In a highly unusual, perhaps unprecedented, series of events, the legal profession across Australia has been united in its condemnation of the Attorney-General. The Australian Lawyers Alliance has called for Brandis to resign over this matter: he has lost the confidence of the profession.

Tony Kenyon, National President of the ALA, has described Gleeson as

“… a distinguished lawyer, with an unblemished reputation for integrity. The attempt to interfere with his independence, and his resignation, are both unprecedented in the 100 year history of Australia’s Solicitor-General.”

Mr Kenyon identified the real issue involved in the saga:

“There is a compelling public interest in having the Solicitor-General as an independent statutory counsel to government.  A core purpose of the position is to provide frank and fearless advice to government.  Senator Brandis’ actions flagrantly ignore this, and bring discredit on his position as Attorney-General.”

That Senator Brandis and the Turnbull Government think the Solicitor-General should be a political patsy was revealed by Andrew Laming a backbencher telling the media this week that the Direction was issued because Brandis did not trust Gleeson. While Laming did not make it clear where the lack of trust stemmed from, it seems clear that Gleeson’s advice was not always welcomed by the Attorney-General who, despite having the moniker QC after his name, was a run of the mill member of the Queensland Bar before entering politics and who only got the moniker because the then Chief Justice of Queensland was a chum.

The Senate Committee on Legal and Constitutional Affairs is currently undertaking an inquiry into the closing months of Gleeson’s tenure as Solicitor-General. The documents submitted to the Senate Inquiry and the hearing transcripts reveal a fractious relationship. Evidence submitted by Gleeson strongly support his version of events. Brandis has submitted some of the same documents, although in line with the obsession with secrecy characteristic of the Abbott-Turnbull government, more heavily redacted. Brandis has, for example, redacted notes about concerns raised by Gleeson regarding the failure to consult him on fundamental changes to the law that would strip Australians of their citizenship and marriage equality.

Since these submissions were made, the Shadow Attorney-General, Mark Dreyfus has rightly raised concerns regarding more recent legislation. A bill currently before another parliamentary committee seeks to indefinitely detain people after their sentences have finished. Dreyfus has asked if this Bill has been reviewed by the Solicitor-General. The Attorney has not responded.

If there is ever a demonstration of the need to ensure the Solicitor-General’s office is not turned into a political pawn, this bill provides it.

‘If there is ever a demonstration of the need to

ensure the Solicitor-General’s office is not turned

into a political pawn, this Bill provides it’

The provisions of that Bill are highly legally contentious. It has the potential to dramatically alter the power balance between individuals and the Government, allowing the government to argue that someone should be detained indefinitely on the basis of evidence that the person can never see. While courts would have some oversight of that detention, traditional safeguards would be dramatically circumscribed in the name of national security. There are significant questions as to whether such legislation would be constitutional. The opinion of the Solicitor-General should be of primary importance in proposing such a dramatic shift. The Attorney-General, however, has not provided any assurance that this opinion was sought.

The role of the Solicitor-General is one of the essential pillars of the rule of law in Australia. As an independent statutory office, the Solicitor-General gives the government the advice it needs, even if it is not the advice that it wants. The office-holder is independent of government, similarly to judges, meaning that the priority of the advice provided is the law, not ulterior considerations such as whether the Attorney-General or others in government will like it, or agree with it, or might want to restrain such advice because it is unwelcome. The Solicitor-General is best placed to provide this advice. The office has access to all advices by previous Solicitors-General and access confidential legal advice involving governments across Australia. No other lawyer has access to these sources, so no other lawyer is in a position to provide the same level of advice, regardless of how experienced they might be.

One of Gleeson’s predecessors, Gavan Griffith QC noted in 2001 that

“… there is an unbroken tradition that Solicitors-General render dispassionate and non-political  advice  to  their  governments,  including  those  of  the  contrary  complexion  to  those  under  whom  they  took  office.”

While for many Australians the Brandis-Gleeson battle might seem like a lawyers’ picnic, this dispute has very real impacts on the lives of people subjected to Australian laws. Laws impact on how we live our lives, who we do it with and what the sanctions will be if we choose to live outside of the law. In this way, ensuring that the laws that are passed comply with the foundational Australian law, the Constitution, is essential to allowing us all to live the lives we should be able to live in Australia.

The Constitution is there to ensure that the laws that are passed are legal and will be upheld as valid by the High Court if they are challenged. If the Government introduces laws that contravene the Constitution, this can create significant confusion. People might be detained, deported, denied a passport or citizenship pursuant to laws which are invalid. Even though the laws are illegal, however, they still have serious ramifications until the illegality is revealed. The person unjustly affected would need to challenge those laws through a series of court appearances to correct the misapplication of the law: a daunting, costly and time consuming endeavour. Many would not, or for financial reasons could not, mount such a challenge. Government finances would also be expended defending a law that should never have been passed which, particularly given the economic constraints we are constantly reminded of, is a futile expenditure of government finances.

So, when the Attorney interferes with the Solicitor-General’s independence, it is not just a couple of lawyers arguing as usual. It will have a direct impact on the kinds of laws that will be passed. It will have a direct impact on peoples’ lives. It will have a direct impact on our country and how it moves forward in uncertain times. And it has now had a direct impact on the confidence that the profession has on its highest national officer, the Attorney-General.

You can follow Anna Talbot on Twitter @annactalbot, as well as Greg Barns @BarnsGreg and Australian Lawyers Alliance @AustLawAlliance.

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