Grattan on Friday: Little but grief ahead for George Brandis in battle with Solicitor-General

The future of Attorney-General George Brandis was a topic of political gossip well before the fight between him and Solicitor-General Justin Gleeson exploded spectacularly this week.

There’s been interest in both Canberra and Brisbane.

In Canberra, because if Brandis left parliament, he’d be replaced as Senate leader by Finance Minister Mathias Cormann, a man with much-needed skills in wrangling legislation through.

In Brisbane, because with speculation that Brandis mightn’t serve his full term the Liberal National Party activists are wondering who they might send to the Senate.

Rumours have swirled. Brandis to the High Court? Or perhaps high commissioner to London?

Anyone recalling Gough Whitlam’s experience of appointing his attorney-general, Lionel Murphy, to the High Court would instantly dismiss that option.

On the other hand, the London job is routinely used for political appointees; it’s currently occupied by former foreign minister Alexander Downer, whose term is up in May.

But Brandis declares he’s not going anywhere. Asked in the Senate last month whether he’d rule out accepting a diplomatic or judicial appointment before the end of his (six year) term, he was unequivocal: “Yes, I can rule that out.”

The battle between Brandis and Gleeson follows Brandis tabling in parliament in May a binding direction that all requests for the Solicitor-General to provide advice – even from the prime minister or the governor-general - should go through him rather than directly to Gleeson.

Gleeson says he wasn’t consulted about the direction, which he trenchantly opposes. Brandis has insisted he did consult him. Gleeson has effectively accused Brandis of misleading parliament in making this claim.

Gleeson also says that before the direction was issued he had instituted a process in which he would tell the Attorney-General of requests and provide him with a copy of his advice – the only exception being when a prime minister or governor-general asked for confidentiality.

The ins and outs of the affair are byzantine, detailed at great lengths in submissions each has put to a Senate inquiry into what happened.

Standing back, it is possible to argue both ways on the “consultation” question, depending on how “consultation” is defined.

It is clear, however, that Brandis should have notified Gleeson about the direction ahead of issuing it, so he could express his opinion.

In understanding how things have come to this the motives of the protagonists are critical.

Brandis has been accused of a power grab, an attempt to nobble Gleeson. His response is that after Gleeson raised with him concerns about procedures, he decided to bring practice into accord with the letter of the law. He also argues he is acting as a processor of requests for advice, not a roadblock to them.

But Gleeson sees the move as contrary both to the law and past practice, and he is digging in to defend the independence of the solicitor-general’s office.

That Gleeson - a highly respected lawyer, who previously specialised in commercial law at the Sydney bar - has so dramatically escalated the dispute is remarkable in itself.

One dynamic in this battle may be turf warfare.

As Solicitor-General, Gleeson is operating in a competitive jungle in providing legal advice. The Office of Constitutional Law, another and powerful source of constitutional advice, is located within the Attorney-General’s department, and more routine advice comes from the Australian Government Solicitor (AGS), also within the department.

In his original letter to Brandis calling for procedures to be sorted out Gleeson, among other complaints, said he hadn’t been consulted on a proposal under consideration in relation to marriage equality. “To date … I have not been asked to advise on the proposal. Instead, AGS has provided draft advice in the matter. I have raised this concern with your office and also with your department. I am told there may be a request for my advice at some unspecified point in the future.”

Fairfax has reported that on the marriage plebiscite Brandis sought advice from a previous solicitor-general, David Bennett, after rejecting advice from Gleeson.

The conflict can only become more politically charged in coming weeks. The Senate inquiry is due to report on November 8; it has a non-government majority and one would expect that Brandis will take a beating.

The Senate is likely to disallow his direction. Senator Nick Xenophon - who says of the imbroglio, “it’s not black and white, it’s a complex issue and both sides have arguments to be considered” - believes the direction “should be disallowed, because it is unnecessary”.

Disallowance would give Gleeson a win on the substance, though at a high price in terms of his relationship with the government.

Brandis on Thursday claimed that despite their differences “from a professional point of view” he and Gleeson “have never had a cross word”. Perhaps in recent times this is because they have not been actually talking about their conflict; since the direction was tabled the war has being waged by paper - they haven’t spoken about the problem by phone or in person.

On the face of it, it is hard to see how the two can continue to operate together. But unless Gleeson – whose term doesn’t expire until 2018 – quits, or Brandis does decide to seek fresh fields, the Commonwealth’s first and second law officers will remain unhappily shackled to each other for some time yet.