A gathering of former solicitors-general has supported Justin Gleeson’s view that Attorney-General George Brandis misunderstands the Law Officers Act. By Richard Ackland.
Solicitors-general support Justin Gleeson in argument with George Brandis
Sir Anthony Mason was Australia’s solicitor-general between 1964 and 1969. Early in his term, he was approached by the then attorney-general Billy Snedden with a request.
Mason told a gathering of lawyers on Monday night: “A discussion with Snedden was by no means memorable.”
But this one must have been. Snedden told the S-G to go to the High Court at the earliest available opportunity and argue that the judges’ life appointments to the court – as they then were – did not mean “life”.
The attorney-general had the idea that if a “life” conviction for a serious crime meant 25 years, it should mean the same thing for appointments.
Mason told him that he didn’t think this would be “an attractive argument for the High Court”. Ultimately, the case was never made. Instead, in 1977 the constitution was altered by referendum to provide for the retirement of federal judges at 70.
Bob Ellicott, another former solicitor-general, told Monday’s event in Sydney’s Banco Court that he had “difficulties” with Lionel Murphy as attorney-general and sometimes he was kept out of the loop by the A-G’s department.
At the 1974 case brought against France over nuclear tests in the Pacific, Australia was represented by Murphy and Ellicott. Before the hearing at the International Court of Justice, Murphy told Ellicott to take off his wig. He refused. This seemed to be a stumbling block to the unity of Australia’s submissions to the court, with Ellicott appearing wigged, while Lionel, in the spirit of egalitarianism, was unwigged.
Ellicott went on to become attorney-general under Malcolm Fraser. He remarked that there needs to be trust and confidence between the two office holders, “otherwise it’s no good”. He didn’t adopt a confrontational attitude with Murphy, preferring to try to work with him.
These war stories about troublesome A-Gs were unburdened at what was slated to be a celebration of 100 years of the office of solicitor-general, serendipitously timed with the appearance of associate professor Gabrielle Appleby’s book on the office and its history. The silent pachyderm in the vast room was just-resigned solicitor-general Justin Gleeson and the ruction with Attorney-General Brandis.
What emerged from Monday’s discussion is that the preponderance of former S-Gs, who are alive and kicking, think Brandis was wrong in his interpretation of the legislation that governs the independent office of solicitor-general.
Brandis concocted the idea that the Law Officers Act means that, to function as counsel to the various emanations of the Commonwealth, the solicitor-general requires prior written approval from the attorney-general, even if the prime minister or the governor-general are seeking advice.
Sir Anthony Mason said the legislation doesn’t support Brandis’s interpretation and added, “It is a big stretch to say the attorney-general has to say ‘yes’ or ‘no’ to the prime minister’s request for advice”.
Ellicott said he interprets the Law Officers Act “in largely the same way as Sir Anthony”. Gavan Griffith, in office from 1984 to 1997, said the same thing. The act cannot mean what Brandis wants it to mean, adding: “Some attorneys-general would need a seeing-eye dog to find their way to the High Court.”
We also know that Gleeson told the recent senate committee called to investigate the relationship breakdown between the two law officers that in his view Brandis’s direction to him is unlawful and should be ignored, which is what he has done. The weight of legal intelligence is clearly against Brandis.
Brandis was never quite who he wants us to think he is. After a BCL at Oxford on a Commonwealth scholarship he returned to Brisbane to teach at the law school and go to the bar. Of course, his first love was politics and by the time he applied for silk in 2006 he was well and truly ensconced in the tribal affairs of Canberra. The Bar Association of Queensland declined his application for senior counsel, saying he didn’t have a significant enough practice.
But the chief justice, Paul de Jersey, had the ability to write in names to the silks’ list and he added Brandis. His selection as senior counsel raised eyebrows and tut-tutting at the bar.
When the monarchist zealot and Queensland attorney-general Jarrod Bleijie reintroduced the royal bauble for barristers in 2013, Brandis smartly traded in his SC for a shiny new QC and has had the postnominal plastered all over his stationery ever since.
Justin Gleeson already had a significant trial, appellate and High Court practice when he was appointed solicitor-general by Labor’s Mark Dreyfus in 2012. Contrary to popular belief, he is not the son of former chief justice Murray Gleeson. Rather, he springs from Gerry Gleeson, who ran the New South Wales premier’s department under Neville Wran.
Justin Gleeson is a university medallist in law and an Oxford graduate. The legal tradition is further embedded with his marriage to Bernadette Brennan, the daughter of Sir Gerard Brennan, former chief justice of the High Court.
That makes him the brother-in-law of lawyer and priest Frank Brennan, while his brother is Fabian Gleeson, a judge of the NSW Court of Appeal. His daughter is Madeline Gleeson, currently a lawyer and researcher at the Andrew & Renata Kaldor Centre for International Refugee Law at the University of NSW, whose book Offshore: Behind the Wire on Manus and Nauru is a chilling account of what is going on in Australia’s name at regional detention centres.
Justin Gleeson also served as treasurer of the NSW Bar Association, a position from which he resigned on a matter of principle in 2008, with plenty of steam coming out of his ears.
The issue there involved a loss of $750,000 faced by the bar for the year 2007-08. Gleeson wanted members of the bar council to have a copy of his draft letter explaining the need for a hike in members’ fees. According to an email Gleeson sent to councillors on April 13, 2008, bar president Anna Katzmann, now Justice Katzmann of the Federal Court, directed the executive director of the bar, Philip Selth, not to distribute the letter. Gleeson claimed that Katzmann also directed the issue not be discussed at a council meeting.
Gleeson resigned, saying: “I could not function as treasurer or director if I am not allowed to raise matters which I consider important with you.”
In echoes of the more recent events, he added that he cares “about this association too much to drag it into continuing dispute”.
In the senate committee hearings Gleeson had to endure a session of bullying from Ian Macdonald and Barry O’Sullivan, plus a further series of more than 120 irrelevant questions on notice from West Australian Liberal senator Linda Reynolds.
Reynolds even had a query as to why he used the postnominal SC when, under the Law Officers Act, the solicitor-general technically does not practise as a barrister. She must have forgotten Brandis’s “QC”. Senator Reynolds herself uses the postnominal CSC, which stands for “Conspicuous Service Cross”.
In a piece for The Australian, journalist Chris Kenny berated Gleeson for having the temerity to go to the book launch of his daughter, Madeline, and speculated that the SC may have given the dangerous book as a present.
The Coalition senators contrived plenty of synthetic indignation that Gleeson, during the caretaker election period, in answer to questions from shadow attorney-general Mark Dreyfus, has said he did not support the attorney-general’s legal services direction. The overwrought indignation was designed to kick a lot of sand in the face of the serious allegation that Brandis had not consulted with Gleeson about the legal service direction, as he is legislatively required to do, and had lied to the parliament in claiming that he had.
In a written submission to the senate committee, Brandis attached a heavily redacted letter from Gleeson, dated November 12, 2015, in which he sought a meeting about better co-ordinating the briefing arrangements for his office.
The attorney-general then parlayed that into the ludicrous idea that the solicitor-general himself wanted the mandatory direction, which would allow the A-G to filter his briefs.
Brandis also released the handwritten meeting notes from members of his own staff, which allegedly assert the solicitor-general was consulted about the direction. The reference to consultations must have been written in secret ink, because they are not apparent.
While the office of solicitor-general is 100 years old in this country, it is about 370 years old in the Old Dart. John Cook was England’s first solicitor-general for the Commonwealth and he prosecuted King Charles I on charges of high treason. After the restoration, Cook himself was prosecuted for regicide, was found guilty, and duly hung, drawn and quartered – suggesting that from its very infancy the position of solicitor-general has been a most dangerous office of state.
This article was first published in the print edition of The Saturday Paper on Oct 29, 2016 as "General agreement".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.
Letters & Editorial