A guest post today from Darren Ferrari, a Melbourne barrister and PhD student, on the way that so many journos have been dismissive of the quality of the government’s legal advice, due to the fact that the High Court ruled against them.

Political pundits commenting on legal issues, what could go wrong?

In the wake of the High Court’s decision in Plaintiff M70/2001 v Minister for Immigration and Citizenship (the Malaysia Solution Case) it seems that the political chatterati have declared open season on the Commonwealth’s lawyers.

Michael Gordon writes in the Age that:

“The question of how the Commonwealth government’s legal advisers could have got it so wrong but a fascinating sideline in the debacle that now confronts a government that had a massive credibility problem even before the High Court pulled the rug out from under this bold play.”

A sideline it may be but some Canberra ‘insiders’ feel free to pass judgment on the Commonwealth’s lawyers’ competence.

Michelle Grattan’s piece was a fine example of this. In slagging off the government (who deserve it and can defend themselves), Grattan decides to have a swipe at the lawyers too. She said:

”The Commonwealth government is on very strong legal grounds,” Immigration Minister Chris Bowen insisted last month.


Clearly, he didn’t know what he was talking about. The government was too gung-ho and, if the advice was convincing, it was also bad.”

The weasel words ‘if the advice was convincing’ are revealing. Like everyone, Grattan has not seen the advice but that does not stop her concluding that the Commonwealth’s lawyers are incompetent hacks. See her next line, if you don’t believe me:

“If the Commonwealth’s legal experts can’t anticipate the High Court, they might need a refresher course in the law.”

Thank you Ms Grattan SC. I look forward to seeing your next cross-examination.

There is another possibility, Bowen may have been talking up the legal advice and, in doing so, misrepresenting its strength. It’s foolish to publish one politician’s statements as fact but that seems to be the sort of reporting that Grattan habitually performs these days.

Even if Bowen correctly characterised the legal advice given, the fact that the High Court subsequently showed it to be wrong does not necessarily make it bad advice. Assuming that ignores that there was an apparent ambiguity in the law, which the High Court resolved after a full hearing. Even then, the High Court was not unanimous in rejecting the Commonwealth’s submissions. To say that the Commonwealth’s lawyers should have anticipated this result (which I take Grattan as meaning that it will happen, not that it could happen) suggests that to be a litigator a lawyer must be be a fortune-teller and mind reader.

Lawyers give advice on imperfect facts and where the law is ambiguous all the time. Looking back in hindsight at that advice, we often get it wrong too. However, as long as it considers all relevant evidence and authorities available at the time and provides the client with a realistic view of the law as it applies to that case, it is not bad. Similarly, if the conclusion is reasonably open and not fanciful, it is not bad.

It should be said that Grattan is not alone in this view. Tweets by Misha Schubert and Simon Cullen during Bowen’s press conference indicated a similar view. Schubert, to her credit, seemed interested in finding out why that view is wrong when I put a very simplified version of my argument to her. Cullen was simply unresponsive.

The view that the Commonwealth’s legal team must be incompetent because its advice was proved wrong is not the only journalistic misstep when it comes to commenting on the Malaysia Solution Case. Annabel Crabb in a piece for the Drum seems to think that the Solicitor-General was part of the Commonwealth’s incompetence:

“The confident assurance from the Immigration Minister just weeks ago that the High Court legal challenge had been anticipated and rigorously prepared-for was hit amidships early on by High Court Justice Hayne, who growled at the Soliticitor-General (sic) that his submission was “half-baked”.”

Crabb is wrong in saying that Hayne said that the Solicitor-General’s submission was “half baked”. A bit of research would reveal that Hayne J was merely playing the grumpy judge (a character anyone who has appeared in court knows well), grumbling about the Solicitor-General’s inability to immediately provide the Court with a copy of an affidavit he sought to rely upon. This is demonstrated by the following exchange:

MR GAGELER: Your Honour, at the end of our learned friend’s argument we understand it to be said that there are three questions that rise to the level of a sufficiently arguable point to justify the interlocutory relief that is sought. There is one question, or perhaps two, about the construction of section 198A(3), those questions being whether it requires or imposes some element of jurisdictional fact, either for the determination of a court or for the determination of the Minister, and whether on its proper construction it is limited to examination of international law and domestic law applicable to or in the specified country. I will turn to those in a moment.

Another question said to be raised is a question of the construction of section 198A(1) and the point that is put for the plaintiffs is that section 198A(1) confers a discretion. There is no dispute between us about that. It confers a discretion. The affidavit which will be here will show that the discretion was exercised on an individual basis.

HIS HONOUR: Before you proceed further, how long is this affidavit going to take, Mr Solicitor? It is unsatisfactory that the matter proceed in this half-baked fashion.

MR GAGELER: Within the next 20 minutes, your Honour.

HIS HONOUR: If you are going to address argument on the footing of material that has not been heard or dealt with, what am I to do?

MR GAGELER: Your Honour has my assurance that the material will be before the Court this afternoon.

HIS HONOUR: When is the other party to have notice of its content and an opportunity to consider it and consider the course they should take in response to it?

MR GAGELER: Your Honour, we are responding to an urgent interlocutory injunction and we are – – –

HIS HONOUR: I understand that, Mr Solicitor, and you have the whole of the resources of the Commonwealth behind you.

MR GAGELER: They will be immediately behind me in the next 20 minutes, your Honour. I cannot do anything more than that. That was not said in jest, your Honour.

HIS HONOUR: No, it was not and it was not to be taken as such at all.

Although the exchange shows that Hayne J was not happy with the way that the Commonwealth was proceeding, it does not show any displeasure with the Solicitor-General’s submissions. It does not reflect on the Commonwealth arguments before the Court at all. It had no bearing on the way the case was run, nor does it show that the case was badly prepared. But to say that would ruin Crabb’s story.

Crabb compounded her slur on the Solicitor-General by later tweeting:

Annabel Crabb

Lib Senator Mary Jo Fisher faces court today. Believed to have declined offer of assistance from Cth solicitor-general…

Oh, what a jolly jape. Pity that Gageler’s ethical obligations prevent him from defending himself.

What both Grattan and Crabb’s pieces show is that there is a tendency amongst political commentators to simplify everything to winners good, losers bad. The problem is that in the law, things are rarely that simple.

The other problem with Grattan and Crabb’s pieces is that they leap to conclusions on the basis of insufficient evidence and, apparently, without knowledge of how the legal profession works. Grattan assumes that just because legal advice is proven wrong by a subsequent case, it must be bad. Crabb assumes that any criticism of counsel necessarily demonstrates inherent problems with that party’s case. Neither assumption is correct.