Solicitor-General Justin Gleeson has revealed he told Shadow Attorney-General Mark Dreyfus during the pre-election caretaker period that he disagreed with the binding direction Attorney-General George Brandis had issued saying all requests for Gleeson’s advice must go through him.
Appearing at an often rowdy and acrimonious Senate committee hearing, Gleeson said Dreyfus rang him in early to mid June.
“Mr Dreyfus asked me two questions … The first was: ‘had I been consulted over this direction?’ and I said no. The second question was, ‘did I support the direction?’ and I said no’.” The conversation was “very short”.
The Senate legal and constitutional affairs references committee is investigating the conflict between Brandis and Gleeson over the direction, especially whether Brandis, as legally required, consulted Gleeson before issuing it in the dying days of the last parliament.
Gleeson has insisted he was not consulted; Brandis maintains he was. They continued to disagree over this in their Friday evidence.
Challenged on whether it had been appropriate to speak to Dreyfus, Gleeson said an inaccurate statement had been made to parliament (saying he had been consulted), parliament was dissolved, and he considered it “my duty” to tell the truth to any MP who asked him.
In his evidence, Brandis said this was the first time he had heard of Gleeson’s conversation with Dreyfus. “Mr Gleeson did not tell me about the fact that he had had a critical conversation with a senior member of the opposition during the election campaign … He ought to have done so, and I am shocked that he did not.”
Gleeson said one reason it was appropriate not to hang up on Dreyfus was that if there had been a post-election hung parliament and he was asked to provide advice, the appropriate constitutional position would have been for him, with the governor-general’s consent, to notify both Brandis and Dreyfus, because at that point it would not be clear who would ultimately form government.
“If I had simply said, ‘Mr Dreyfus I cannot say a word to you’, I think I would have compromised the independence of my office and I would have compromised the ability to advise the governor-general.”
Gleeson said he had been “shocked” by the direction, and the change was “making the functioning of my office exceptionally difficult”.
“I cannot run my office in the way I have run it for four years,” he said
He instanced a request he received this week from the Australian Government Solicitor on a High Court proceeding, which raised questions relating to the composition of this Senate. The brief did not have the signed consent from the attorney-general although the questions he was being asked to look at were from Brandis.
He decided to go ahead with an opinion, because he regarded as invalid the direction that everything must go through Brandis. “Do I lie awake at night and think, ‘Reading this direction literally, the attorney-general could seek an injunction against me to restrain me from performing my office?’ I do.”
Brandis criticised Gleeson for raising this case, saying he had not sought permission. “He ought to have done so but he did not.”
Brandis also said that since he had sought the opinion, “the suggestion, in relation to a matter referred to him by me, that he was somehow constrained or delayed by the operation of this legal services directive is unmaintainable”.
Government senators on the committee frequently took issue with Gleeson, sometimes aggressively, and at times he gave as good as he got.
He and Queensland Liberal senator Ian Macdonald had particularly sharp exchanges, with Gleeson reacting to Macdonald’s interruptions. “Senator, I will say this very quietly. You have now interrupted my answers three times”, Gleeson said at one point, to which Macdonald responded , “Oh, spare me!”.
“Four times”, Gleeson shot back. “Mr Gleeson, you are not in a court now. You are in a parliamentary committee hearing,” Macdonald said. Gleeson vigorously objected when Macdonald noted his daughter was a friend of academic Gabrielle Appleby, author of a recent book on the role of the solicitor-general.
Gleeson said he had written to Brandis in May criticising the direction and asking for it to be withdrawn, but had not received a reply.
Brandis said the government was in caretaker mode at that time. He said on August 16 he had written to Gleeson, inviting him to put his views, but had heard nothing from him, which was “curious”.
“And I find it curious that, in view of my letter to him of 16 August, the solicitor-general would say to this committee, ‘the attorney-general has refused to engage with me on this topic’, when the very purpose of my letter of 16 August was to do that very thing,” Brandis said.
“Had the solicitor-general sought to engage with me in response to my invitation, or even made a phone call to me, which he did not, this issue could have been sorted out in a matter of minutes.”
Brandis said the legal services direction, far from being a grab for power by him, as the opposition has claimed, “merely gives effect to the existing law”. He had seen it as a matter of “formality and administrative housekeeping”. The committee might usefully consider whether the law should be rewritten, he suggested.
He said the issue underlying the inquiry boiled down to a difference of opinion about the meaning of the word “consultation”. He handed to the committee the definition of the word as set out in the Oxford English Dictionary.
Authors: Michelle Grattan, Professorial Fellow, University of Canberra