George Brandis

Attorney-General George Brandis has been forced to acknowledge that Solicitor-General Justin Gleeson’s account of the lack of consultation over his May direction on access to the Solicitor-General is accurate.

Gleeson’s remarkable submission to a Senate inquiry into the direction — a disallowable instrument that prevents anyone other than the Attorney-General approaching the Solicitor-General for advice — rocked the government by forensically detailing the failure of Brandis or his representatives to raise the issue at any time with the Solicitor-General after Gleeson approached Brandis to discuss ways to better manage his role in relation to legislation. The two met on November 20 last year to discuss the matter.

[Brandis misled Parliament and mishandled advice, and he’s got to go]

Brandis’ submission to the inquiry in response to Gleeson states “… the Solicitor-General was consulted, at the meeting, about the very issue dealt with by the Direction and the guidance note”. His submission goes on to claim that handwritten notes taken by his staff at the time confirm his version of the November 30 meeting. However, the notes only mention a direction in passing as the background to the current framework for access to the advice of the Solicitor-General; if anything, they confirm Gleeson’s submission.

Now, Brandis appears to have accepted that the notes do not back him up. Under opposition questioning in the Senate about the disparity between his own account to Parliament on the formulation of the direction, in which he says he consulted Gleeson, and Gleeson’s detailed account that he was at no time consulted, Brandis said:

“I agree with what the Solicitor-General says. It is the case that, to quote him, at no time at that meeting did the Attorney-General indicate that he was considering issuing either a legally binding direction concerning the performance of the functions of the Solicitor-General or a requirement that a Commonwealth personal body could only approach the Solicitor-General for advice after receiving the Attorney-General’s advanced approval.”

This directly contradicts Brandis’ insistence, in writing as part of the material tabled with the direction, that Gleeson was consulted. However, in a bizarre piece of casuistry designed to get him off the hook for misleading the Senate, Brandis added:

“At the time of that meeting I was seeking Mr Gleeson’s views about the matter. I had formed no view whatever as to what course I would take. That is a view I formed subsequent to the meeting.”

But if anything this appears to take Brandis deeper into hot water — he is in effect saying he did not intend to issue a direction at the meeting, but only formed an intention afterwards — meaning by his own argument he couldn’t have consulted Gleeson about the direction, because the only possible moment for “consultation” that Brandis has cited was the November 30 meeting.

[George Brandis and the struggle for competence]

Without some later meeting, phone call or correspondence between the Attorney-General and the Solicitor-General, Brandis could not, by his own words, have consulted with Gleeson on the direction he issued. Brandi’s casuistry is a classic case of when you’re in a hole, it’s a good idea to stop digging.

Both Brandis and Gleeson are scheduled to appear on Friday morning before the Senate Legal and Constitutional Affairs Committee, which is conducting the inquiry.

Peter Fray

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