Solicitor-General Justin Gleeson has launched a swingeing attack on Attorney-General George Brandis, effectively accusing him of misleading parliament, ramping up an extraordinary conflict between the Commonwealth’s first and second law officers.
The row is over a legally-binding Direction that Brandis tabled in the Senate in May, requiring that all requests for the Solicitor-General’s advice must go through him.
Gleeson insists he was not consulted before Brandis issued the Direction and would have strongly opposed it if he had been. Brandis maintains he was consulted.
When the Direction was tabled on May 4, shortly before the Parliament was dissolved for the election, Brandis issued an explanatory statement, drafted by his department, that said bluntly “the Attorney-General has consulted the Solicitor-General”.
The Senate legal and constitutional affairs references committee, which met on Wednesday, is inquiring into “the nature and scope of the consultations” before the Direction was made. Submissions from Gleeson and Brandis were released on Wednesday.
While the details of the bitter row have been public for some time, the conflicting submissions have elevated it to a new plane, prompting Shadow Attorney-General Mark Dreyfus – who when attorney-general appointed Gleeson - to call for Brandis’s resignation.
“Senator Brandis has misled the Australian parliament and lied to the Australian people,” Dreyfus said.
He said Brandis had “attempted this power grab and then covered it up by claiming that he had consulted the Solicitor-General. Today it was revealed that Senator Brandis did not consult the Solicitor-General.”
In his submission Gleeson says: “I was not given an opportunity to comment on the content of the Direction.” He argues that the basis of the Direction is wrong in law “and represents a radical change in how Solicitors-General have acted”.
“It is critically important that persons such as the Governor-General, Prime Minister and officers of Parliament are able to approach the Solicitor-General for advice in an uninhibited fashion, and in respect to questions framed by them and not by others,” he says.
Gleeson also released a letter he sent to Brandis in November that suggested Brandis had given a false impression about his advice on the legislation to revoke the citizenship of people involved with terrorism.
Gleeson said in the letter he had not been asked for advice on the version of the bill introduced into parliament, after advising on earlier iterations. But, he wrote, Brandis had said that the Solicitor-General had advised “there is a good prospect that a majority of the High Court would reject a constitutional challenge to the core aspects of the draft Bill”.
In his submission to the committee, Brandis defends both the content of the Direction and the process of producing it.
He says that on November 12 Gleeson wrote to him requesting a meeting, concerned there were “insufficient procedures” in place to ensure “appropriate co-ordination” within agencies, and between agencies and the Solicitor-General’s office, “in matters of high legal importance”.
“In short, the Solicitor-General requested a meeting to discuss the very issues addressed by the Direction,” Brandis says. A November 30 meeting followed.
“The Solicitor-General was consulted, at the meeting, about the very issue dealt with by the Direction” and a “Guidance Note”. Later Gleeson provided suggestions in writing, which Brandis says he took into account.
“I did not consider that further consultation was necessary or appropriate,” Brandis says.
Brandis argues the Direction “does nothing to change the substance of the Law Officers Act. It simply establishes a procedure for implementing that Act. In particular, the arrangements do not in any way limit the independence of the Solicitor-General.”
He says he has so far considered 10 requests for a referral of a legal question to the Solicitor-General and passed them all on. Another is being processed.
Gleeson agrees the November 30 meeting discussed the Guidance Note - which guides those who do Commonwealth legal work but is flexible and non-binding. But “neither the making of a Direction nor the requirement for pre-approval from the Attorney-General before a Solicitor-General could provide advice was discussed at the meeting of 30 November 2015, at any subsequent meetings, or in any subsequent correspondence”, he states.
“Any consultation that may have occurred in relation to the Direction did not occur with me and did not draw on my knowledge or expertise as the Solicitor-General.
"I had no advance knowledge that the Direction would be made, no notice of what would be in the Direction and no opportunity to put a submission to the Attorney-General or the Attorney-General’s Department as to my views on the legality or merits of the Direction.”
Authors: Michelle Grattan, Professorial Fellow, University of Canberra