Inside the Brandis-Gleeson breakdown
During last week’s explosive senate committee hearing into the relationship breakdown between the first and second law officers of the land, Queensland Liberal National Senator Ian Macdonald’s aggressive questioning drew a reminder from the chairwoman that he was required to treat witnesses with respect and courtesy.
Nobody missed the innuendo in Macdonald’s response. “I always give witnesses the respect they deserve,” he shot back.
Macdonald was referring to the solicitor-general, Justin Gleeson, SC, who had been called to appear to explain how and why he and the attorney-general, Senator George Brandis, QC, had fallen out over recently imposed changes to the way he does his job – changes Gleeson has strenuously opposed, arguing they impede his independence.
The extraordinary hearing of the senate legal and constitutional affairs committee gripped lawyers across the country. In an extremely rare appearance of a minister as a witness before such an inquiry – as opposed to answering questions during regular budget estimates hearings – Brandis also appeared, after Gleeson, at his own instigation.
Brandis was extremely annoyed that the Labor-led committee had failed to invite him to either make a submission or appear – or even to notify him.
The opposition has demanded Brandis resign, accusing him of misleading parliament over the new legal services direction that governs how Gleeson gives advice. Brandis strongly rejects Labor’s assertion.
“The attorney-general has my complete confidence,” Prime Minister Malcolm Turnbull told parliament this week. “The solicitor-general has my confidence, too.”
Sources inside the government have suggested to The Saturday Paper that some ministers would not be unhappy if Gleeson resigned. But at this point, with his five-year term not due to expire until 2018, he’s defiantly not going anywhere.
Officially, the dispute stems from the legally binding direction Brandis issued on May 4 in the shadow of the double-dissolution election called two days later.
It stipulated that from then on, anybody across government or its agencies wanting the solicitor-general’s legal advice had to check with the attorney-general first. That included the governor-general and the prime minister.
“What is currently contained in the direction issued on 4 May has never previously existed between attorney-general and solicitor-general in Australia since 1916,” Gleeson told the committee.
“It is a radical change whereby a solicitor-general can do nothing – he cannot even speak to a lawyer – until he has received a brief with a signed consent.”
Before Brandis’s May direction was made, the general process for the solicitor-general giving advice was laid out in two places – a document known as Guidance Note 11, which is not legally binding, and section 12 of the Law Officers Act, which is.
Brandis says the new direction merely entrenches what is already specified in sections 12(a) and 12(b) of the Law Officers Act. Part (a) says the solicitor-general should act as counsel to those in various specified offices of government and, separately, for “any other person or body for whom the attorney-general requests him or her to act”.
Part (b) says he or she will furnish opinions to the attorney-general on questions of law that the attorney-general refers. Brandis says these provisions allow him to require that every request for advice from the solicitor-general crosses his own desk first.
But Gleeson cites the view of Sir Anthony Mason, former chief justice of the High Court and the first person appointed solicitor-general under that Act. Mason’s view is not the same as Brandis’s.
“It is not to be implied from this qualification [in s 12(b)] that the solicitor-general cannot furnish an opinion to the Commonwealth or its emanations without a request from the attorney-general,” Mason is quoted as saying in a 2014 study of Australian solicitors-general.
Brandis disputes that the direction impedes Gleeson’s independence. He says nobody can instruct or influence a barrister as to the advice he or she can give and anyone susceptible to influence would be “disgracing” the profession.
“Mr Gleeson, like every barrister I have ever met, is a fiercely independent person, and so he should be.”
In some respects, the May 4 direction effectively places the attorney-general above everyone in the government hierarchy. Already Australia’s first law officer, he has now arguably extended his political power by ensuring he has to know – and approve of – every issue requiring the solicitor-general’s legal opinion before it can be given.
It means Brandis is able to keep closer tabs not only on the solicitor-general but on his own colleagues.
Consultation in dispute
The Saturday Paper has been told the attorney-general notified the prime minister before he issued the direction. Malcolm Turnbull supports it.
“It is always appropriate to say to the attorney-general: ‘I would like to seek advice from the solicitor-general’ and to do so in consultation with the attorney-general,” Turnbull told journalists after last Friday’s hearing. “It is inconceivable that the attorney-general would say: ‘No, I don’t want you to seek the advice.’ ”
But in his submission, Gleeson highlighted a tension in this position: “There have been times when persons, such as a prime minister or a governor-general, have approached me to provide advice in circumstances where I have been required to keep their very request for advice, as well as the content of advice given, confidential.”
Brandis says the May 4 direction stemmed from a letter Gleeson wrote to him in November last year, expressing concern he was receiving many unco-ordinated legal requests from government. The letter was also a protest of sorts, asking that he be given the opportunity to advise on the final draft of any legislation in future, not merely an earlier draft.
Both Gleeson and Brandis included copies of the letter in their submissions to the committee and both redacted sections of it. Gleeson’s version contained more detail, making it clear he believed he had been verballed on the constitutionality of a piece of contentious legislation amending the Citizenship Act and affecting the deportation of people involved in terrorism offences.
Brandis had stated publicly that Gleeson said the legislation was constitutionally sound and would withstand a High Court challenge.
Gleeson told the committee his advice related to an earlier draft and he hadn’t advised on what eventually went into parliament. He asked the attorney-general not to tell parliament and the public he’d approved something when he hadn’t. Brandis agreed to amend the Guidance Note.
But after correspondence that Gleeson says did not always receive a response from Brandis or his office, the new direction – which went a lot further – came out in May.
The first he knew of it was when it arrived at his office.
When Brandis tabled the direction in parliament, he included in the explanatory memorandum the statement that he had “consulted” the solicitor-general. Gleeson disputes this.
The law requires that for the attorney-general to introduce any change to the solicitor-general’s role, consultation is necessary. But the attorney-general has the discretion to define that consultation, and is only required to be satisfied that “any consultation that is considered to be appropriate and is reasonably practicable to undertake has been undertaken”.
Brandis is relying on a meeting to discuss Gleeson’s letter in November last year to support his “consultation” claim. He says they discussed the general process for giving advice and that was sufficient.
They did not discuss the precise proposed change. Gleeson says that means there was no consultation.
“I considered that this consultation was appropriate and sufficient for the purpose of s 17 of the Legislation Act,” Brandis’s submission says, calling the change included in his new direction “entirely procedural in nature”.
Brandis says he has merely done what Gleeson requested – regularised the process.
Turnbull described the attorney-general and solicitor-general as “a team” who “support each other”.
But in his submission to the inquiry, former solicitor-general Gavan Griffith, QC, said Brandis was treating Gleeson like “a dog on a lead”.
Brandis called that an “insult” to the solicitor-general and to every other barrister.
Fairly or not, Brandis’s approach has created the impression that he dislikes or disagrees with either some of Gleeson’s advice or the way he conducts himself, or perhaps both.
Even before the May 4 direction, there was no love lost between the two.
Some point back to the case Timor-Leste brought against Australia in the International Court of Justice, alleging spying during negotiations over the resources of the Timor Gap. Raids on the office of Timor’s Australian lawyer, Canberra-based Bernard Collaery, exposed Australia to criticism internationally.
Gleeson is understood to have given advice that both the Abbott and Turnbull governments did not appreciate.
Others suggest Gleeson’s role in a case involving the liquidated Bell Group of companies may not have helped. The case was a challenge to the conservative West Australian government’s move in seizing the group’s assets, sidelining other creditors. Gleeson advised the Australian Tax Office in the proceedings and criticised the WA government when the Liberal federal government as a whole opted not to join the action.
But if indeed it was the substance of Gleeson’s advice or his priorities bothering Brandis – who regularly seeks advice from other sources, as Dreyfus also did when he was attorney-general – it is now also several other things besides.
Some observers in the legal community believe Gleeson let his anger show too much in the committee hearing and that he should accept that being “verballed” occasionally in a political context went with the job. His decision to reveal subjects on which he has been asked for advice has also raised some eyebrows inside and outside government.
Along with his disclosure about the Citizenship Bill, he revealed he had given advice on same-sex marriage.
In a move that some legal observers consider mistaken overreach, Gleeson revealed he had also given confidential advice to the prime minister in January this year. Declining to reveal the subject of the advice, he said it was “a matter that was relevant to the nation this year” and that he provided the advice “confidentially to the prime minister”.
“The prime minister may have shared that advice with the attorney-general,” he told the committee. “I am not aware whether he did or did not but I considered that where I receive such a request I should respond to it.”
What seems to have made Brandis angriest of all, however, is that during the pre-election caretaker period Gleeson took a call from shadow attorney-general Mark Dreyfus – the Labor frontbencher who in office in 2013 had appointed him solicitor-general.
Dreyfus had asked him whether he had been consulted on Brandis’s direction and whether he supported it. He confirmed he responded “no” to both questions. The first Brandis knew of it was when Gleeson told the committee last Friday.
A clearly angry Brandis said he should have been notified of the conversation. “I consider that he ought to have done so and I am shocked that he did not.”
In front of the committee, Gleeson revealed that he ignored the new direction just last week – the day before the hearing – when he had received an urgent request for advice from a senior government lawyer on a matter before the High Court that had “questions of law attached to it which relate to the composition of the senate”.
He said the brief did not have signed consent from the attorney-general, as required.
“Yesterday I was faced with a situation where, if the attorney-general’s direction was lawful and meant what it said, I was meant to say to this senior solicitor, ‘Go away. You don’t have a consent.’ The problems this direction is causing are as practical as that. I cannot run my office in the way I have run it for four years and the way … all of my predecessors did.”
Brandis was, again, furious. “Mr Gleeson did not seek my consent or authority to disclose that fact – the fact of advice on that topic being sought – to this committee. He ought to have done so but he did not.”
He said it was clear the direction had not obstructed Gleeson’s actions the previous day, saying he’d raised no query about the absence of a signature but had gone ahead and given the advice.
He also said he had written to Gleeson on August 16 seeking to discuss his concerns but Gleeson had failed to reply.
Parallels with Triggs
In terms of his employment, Gleeson is in a similar position to Human Rights Commissioner Professor Gillian Triggs – in whom some senior government ministers have previously expressed no confidence because of her criticisms of the offshore detention of asylum seekers. Like Triggs, Gleeson is a statutory officer, not easy to dismiss.
This week, Triggs was forced to correct the record relating to an interview she gave to The Saturday Paper earlier this year.
Triggs told the senate committee during a separate budget estimates hearing that quotes in an interview for The Saturday Paper were “taken out of context”. She was asked about a section of the interview in which, referring to an earlier committee hearing, she said: “I knew I could have responded and destroyed them – I could have said, ‘You’ve asked me a question that demonstrated you have not read our statute. How dare you question what I do?’ ”
Triggs said – incorrectly – that this line was “put in by the subeditor”. She has now written to the committee to correct the record, acknowledging it was “an accurate excerpt”.
Despite the government’s desire to remove Triggs, she remains steadfastly in her position as Gleeson does in his.
The Law Officers Act specifies Gleeson can’t be removed from office unless he resigns, becomes incapable of performing the duties of office by reason of temporary illness, is guilty of misbehaviour, or becomes bankrupt or insolvent.
Arguing he is “guilty of misbehaviour” would be extremely controversial and likely subject to legal challenge – something the government would prefer to avoid.
As with Triggs, some in the government now consider him hostile.
In his written submission, lodged before he gave evidence in person, Gleeson observed: “I am already seeing evidence that requests for advice on matters of very great significance to the government and the community are going to persons other than the solicitor-general.”
The Saturday Paper has been told that in the wake of his evidence to the committee, the solicitor-general may receive fewer briefs from ministers and others in government requesting advice because of a “breakdown of trust”, based on his disclosures and taking Dreyfus’s call – something he argues was not just acceptable under the caretaker convention, but obligatory. Brandis considers he was obliged to notify him.
In his written submission, Brandis insisted he and Gleeson continued to work together “on a cordial and professional basis”. But the senate committee hearings on Friday last week did little to help.
Brandis insists that the new arrangements “do nothing in any way to limit the independence of the solicitor-general”.
That is definitely not Gleeson’s view. It’s not the opposition’s view, either.
The direction is what’s known as a “disallowable instrument”; that is, is in a form that parliament has the power to vote to disallow. Labor has moved to do exactly that and it is due for a vote before the senate rises at the end of the year.
How will it all end? Perhaps in 18 months when the solicitor-general’s term expires, perhaps sooner.
But separate from Gleeson’s fate is the issue of the impact of the direction itself. Whether that stays or goes, some questions about why it was necessary may linger unanswered.
This article was first published in the print edition of The Saturday Paper on Oct 22, 2016 as "Inside the Brandis-Gleeson breakdown". Subscribe here.