Friday, 7 October 2016

Australia's two most senior legal officers square off

Attorney-General George Brandis is making the news again for all the wrong reasons.

The Sydney Morning Herald, 5 October 2016:

Attorney-General George Brandis is facing calls to resign after the government's top legal adviser accused him of misleading Parliament, in a dramatic escalation of a toxic row between the country's two most senior legal officers.

Documents released at a Senate inquiry on Wednesday suggest same-sex marriage laws and a proposal to strip dual nationals involved in terrorism of Australian citizenship were flashpoints in a simmering feud between the two men.

Mr Gleeson, the government's top legal adviser, said in an explosive submission to the inquiry that he had not been consulted about a change requiring all ministers – including the prime minister – to obtain the written approval of Senator Brandis before seeking his advice.

Senator Brandis claimed in Parliament Mr Gleeson was consulted about the legally binding change, made days before the election.

Mr Gleeson said he had taken steps to have the change "withdrawn and for a proper consultation process to commence" but they had "proved futile".

"Had I been consulted ... I would have made a submission to the Attorney-General, in the strongest terms, that [the change] should not be made," Mr Gleeson said.

Legal experts have expressed concern the change is a power grab that restricts the independence of the Solicitor-General.

Mr Gleeson said there had been times since his appointment in 2013 when he had been asked directly by "persons, such as a Prime Minister or Governor-General" to provide confidential advice and it was "critically important" this should continue.

The Sydney Morning Herald, 5 October 2016:

Mr Gleeson wrote to Senator Brandis in November 2015, raising concerns the Australian Government Solicitor (AGS) rather than his office was consulted on a marriage equality proposal that was "under active consideration by the government".

Mr Gleeson also said he was not consulted about significant changes to a proposal to strip dual nationals involved in terrorism of Australian citizenship. Senator Brandis later made public statements that Mr Gleeson had advised there was a "good prospect" the law would withstand a High Court challenge….

The Guardian, 5 October 2016:

So what did George Brandis tell the Senate? He tabled an unequivocal statement that he had consulted the solicitor general in relation to the Legal Services Direction:

“Section 55ZF of the Judiciary Act 1903 empowers the attorney general to issue directions, which are to apply generally to Commonwealth legal work, or are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. As the Direction relates to the process for referring a question of law to the solicitor general, the attorney general has consulted the solicitor general.”

A document obtained under Freedom of Information by The Guardian newspaper demonstrates that the Attorney-General has a rather odd notion of what consultation entails.

This letter clearly highlights the fact that there had been no prior consultation on changes to Legal Services Direction 2005:

Unfortunately for Senator Brandis the current Senate Standing Committee on Legal and Constitutional Affairs' inquiry into the Nature and scope of the consultations prior to the making of the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 allows the Solicitor-General of the Commonwealth to give a full and frank explanation of the circumstances surrounding the Attorney-General's blatant power grab.

Something Justin Gleeson SC avails himself of in Submission No. 3 to the inquiry:

Evidence given at the 5 October 2016 inquiry hearing supports the contention that the Solicitor-General was only consulted about a guidance document (now superseded) not the directions document.

It  would appear that the Attorney-General has indeed knowingly mislead the Australian Parliament.

A position that sections of the mainstream media support., 6 October 2016:

George Brandis has blatantly misled parliament and has to resign. And his reluctance to use a better lawyer than himself for advice is behind the debacle……

Brandis has clearly, plainly misled Parliament, and on a very important issue. There’s no wriggle room or get-out clause for the provincial lawyer from Brisbane. He’s got to go.

As to a motive imputed to Brandis by the Crikey journalist - I suspect that the Solicitor-General holds a similar view although more diplomatically worded here:

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