George Brandis’s political crusades win him no fans
Let it not be said that George Brandis, QC, abandons an unpopular brief. The attorney-general persisted in making the case for a dilution of the Racial Discrimination Act, to allow bigots the freedom to insult and offend, right up until Monday night.
At a cabinet meeting just hours later, Prime Minister Tony Abbott jettisoned Brandis’s free speech crusade, in the interests of uniting “Team Australia” behind new national security laws.
Brandis was forced to take one for the team and switch abruptly from championing individual liberty to curbing it, from Voltaire to Orwell in the space of one awkward day.
“You win some, you lose some,” he ruefully observed the following day.
As attention swung to the ill-defined counterterrorism measures, the government also began to show signs of pragmatism elsewhere, flagging a willingness to compromise to secure senate passage of contentious budget measures, starting with university changes.
Now Brandis has another unpopular brief to prosecute. Already, he has stumbled in trying to explain what data about Australians’ internet use intelligence agencies want telecommunications companies to retain.
And that’s just one in a raft of new counterterrorism measures, including a proposal that anyone visiting a region that the government has declared a no-go zone could face charges and have to prove their intent was innocent.
His critics are having a field day.
“If Tony Abbott and the cabinet don’t trust George Brandis with social policy why should Australia trust George Brandis with national security matters?” says shadow attorney-general Mark Dreyfus, helpfully suggesting that Abbott replace him with Malcolm Turnbull.
Acting Greens leader Adam Bandt urged him to consider falling on his sword after he struggled to define metadata in an awkward interview on Sky News. “George Brandis is a hopeless minister with a dangerous policy,” he says.
Even Liberal MPs say privately that Brandis botched the case for changes to the Racial Discrimination Act.
Never were the internal contradictions of the nation’s chief law officer more apparent. He is a devotee of J.S. Mill, yet he is proposing to expand the powers of the state, encroaching on individual liberties. He is a moderate Liberal who has become the Coalition’s leading cultural warrior. Long excluded from the Howard cabinet, he is now in the government’s inner sanctum and intent on staying there.
He has the ear of the prime minister. Indeed, he was doing Abbott’s bidding by pursuing the removal of section 18C from the Racial Discrimination Act, which makes it unlawful to “insult or offend” on racial or other grounds. In opposition, Abbott vowed to overhaul the law that conservative News Corp columnist Andrew Bolt was found to have breached in 2011 when he cast aspersions on “light-skinned” indigenous Australians.
Brandis prosecuted the philosophical case with fervour. When asked by The Australian last year if he had the tenacity to push through the changes, he declared he was “born for it”. Yet he failed to grasp the politics. His ideological certitude seemed to blind him to the inevitable backlash, not just from ethnic groups but also from the Liberal MPs who represent culturally diverse seats.
Although the debate had run already for some months, the first time many voters twigged to it was on March 24, thanks to Brandis’s statement, under questioning from Labor’s Nova Peris in the senate, that: “People do have a right to be bigots, you know.” And, with that utterance, a blue about bigotry eclipsed all valid arguments about the importance of free speech in a vibrant democracy.
Not that Brandis regretted saying it. He made this clear a month later, when he dined at Sydney restaurant, Machiavelli, with the British editor of Spiked Online, Brendan O’Neill, who is variously described as a Marxist firebrand and a libertarian ideologue. They enjoyed “too much booze and amazing food”, wrote O’Neill in a 2600 word tribute to Brandis’s defence of “the Enlightenment-era principle that the state shouldn’t get to determine what people can think and say”.
Brandis had a receptive audience and was in his element, holding forth on his philosophy on how the left is stifling debate and attempting to impose its “secular morality on society at the cost of the freedom of speech”.
But he failed to make his case where it mattered, to the ethnic communities that felt threatened by the dilution of protections against hate speech.
There can be no doubting Brandis’s sincerity when he waxes lyrical about individual freedom. It was the guiding theme of his first speech when he was appointed in 2000 to fill a casual senate vacancy following the retirement of Queensland Liberal Warwick Parer.
“For as long as I sit in this place I will defend the absolute right of all citizens to the free expression of their opinions – no matter how unfashionable, ignorant or offensive those opinions may seem to others,” he vowed.
Most first speeches give an insight into the personal backstory of a politician and the relationships that have shaped them. Usually, there are words of gratitude to friends, family, political allies. Not so for Brandis. He guards his privacy closely.
Disdain for Howard
“Aloof” is one word that comes up frequently when colleagues and associates are asked to describe the attorney-general, though one does mention his wry humour.
His first speech was heavy on ideas and light on autobiographical detail, beyond a reference to the lessons he had learned from Sir Isaiah Berlin at Oxford University in the 1980s and, as a trade practices lawyer, horrified at Labor plans to reduce protections for businesses against industrial disputes.
He was at Oxford, on a Commonwealth Scholarship, at the same time as Abbott, but they were not close. Abbott was a jock, Brandis was bookish. He was already deeply interested in politics. Former editor-at-large of The Age Mark Baker recounted in a profile last year how, at Oxford, Brandis formed two life-time friendships, with Don Markwell and Tom Harley. Markwell is now a senior adviser to Education Minister Christopher Pyne. Harley is a prominent Melbourne businessman and Liberal Party vice-president.
Later, Brandis and Harley would be involved in founding a forum for Liberal moderates – including Turnbull – which they dubbed the “Black Hand”. The group still meets for dinner ahead of party conferences. In 2012, the Black Handers invited a certain mining magnate, Clive Palmer, to address their dinner during the party’s federal council. Andrew Bolt spoke at the function for those from the right.
Back in Brisbane, Brandis was admitted to the bar in 1985. He was practising in commercial law when he entered the senate in 2000. But his appointment as a Queen’s Counsel six years later raised some eyebrows among the state’s barristers.
“There’s a process that exists for appointment of silk,” says immediate past president of the Queensland Bar Association Peter Davis, QC. “One of the criteria is you generally have to be a practising barrister. He wasn’t practising as a barrister for about five years before he made his application for silk in 2006.”
This clearly still rankles with some accomplished lawyers, including colleagues in federal parliament, who imply that his elevation in the profession had more to do with politics than merit.
In the senate, Brandis distinguished himself on committees, vigorously defending the government in 2002 against Labor senator John Faulkner’s forensic probing of the children overboard affair. But it was a remark he apparently made in relation to this that would blot his copybook with the then prime minister, John Howard.
In 2004, a state party official, Russell Galt, claimed Brandis had referred to Howard as a “lying rodent” and complained “we’ve got to go off and over his arse again on this”. No one really believed Brandis’s denial. He now says the “rodent” moniker was a harmless nickname.
Whether it was this indiscretion or the fact he was firmly in Peter Costello’s camp, Brandis never made it into Howard’s cabinet, though he was eventually given a junior ministry, for sports and arts, in 2007.
Again, his disdain for Howard was evident in an erudite and even courageous speech he gave in 2009, as the Liberal Party struggled with its identity in opposition. Brandis argued in his Alfred Deakin lecture that, under Howard, the party had departed from the liberal tradition of Menzies.
“John Howard did not see the Liberal Party as simply the custodian of the liberal cause,” he said. “For Howard, it was as much a conservative party as a liberal party – indeed, with the passage of time, rather more the former than the latter. Recently, Howard’s own political legatee, my friend and colleague Tony Abbott, has taken up the cause of making the Liberal Party more conservative still.”
Whatever qualms he then held about Abbott’s views – which had been outlined that year in Battlelines, Abbott’s call to arms for the party – he is now in the prime minister’s inner circle.
On Tuesday, they fronted a press conference to announce the suite of national counterterrorism laws to deal with the threat of jihadists returning from Iraq and Syria.
“We’ve approached this, and I, in particular, have approached this task with a very strong prejudice against expanding the powers of the state and with a very strong prejudice against winding back traditional rights and liberties,” Brandis said.
Apparently, when Brandis served on the parliamentary committee that has oversight of intelligence matters, he was less hawkish than some MPs, more willing to question the need for extra powers.
But it is impossible to judge what protections are in place and whether he has found the right balance in the proposed national security changes, given the details are still hazy.
Communications Minister Malcolm Turnbull is one of the few cabinet ministers to grasp the technological issues around the retention of metadata but was initially not involved in explaining the measures. That may have had something to do with a speech he gave in 2012, in which he confessed “very grave misgivings” about metadata retention, which was being considered by the then Labor government. At the time, Turnbull characterised it as “the latest effort by the Gillard government to restrain freedom of speech”.
The Brandis-Turnbull relationship is intriguing, as the attorney-general seems to side with the prime minister on issues where the communications minister lets it be known he has different views. The two have also been at odds over the details of a crackdown on online piracy. Brandis argues internet service providers should bear some of the costs, but Turnbull says content owners, such as Village Roadshow, who are making a loss due to piracy, should foot the bill.
Since becoming attorney-general, Brandis has had to confront some realities that challenge his liberal philosophy. He has admitted as much himself, saying in a speech in April that “the more intelligence I read, the more conservative I become”.
He is not the first attorney-general to face this dilemma. Philip Ruddock was also known as a moderate before his time as immigration minister and attorney-general. “The present environment is perhaps one that is more exposed to potential risks than we have had to face before and that’s what the attorney has to deal with,” Ruddock told The Saturday Paper. “One of the most important rights we all have is the right to life. When you know that people use individual liberties to put at risk other people’s lives, you have to balance that out.”
Explaining the need for the extra powers, intelligence chiefs told journalists this week that Australia faced a real threat from radicalised jihadists returning to Australia and the region, particularly Indonesia. Their activities would need to be closely monitored for years to come.
Dreyfus says the government should not assume a “blank cheque” from Labor on national security legislation. He has already questioned some of the proposed measures, including the removal of sunset clauses on preventive detention orders that he says have never been used by ASIO.
As Brandis makes the case for new counter-terror measures, it will test his own beliefs and his ability to mount an argument that will require more than abstract ideals and scholarly speech-making.
Brandis finds himself at the centre of this government’s more controversial policies. He’s failed in his first major challenge and his job is about to get even harder.
This article was first published in the print edition of The Saturday Paper on Aug 9, 2014 as "The madness of King George". Subscribe here.