What an exciting time to be a lawyer! Our esteemed Attorney-General George Brandis — Queen’s Counsel, first law officer of the Commonwealth — presides over the wreckage of a once ferociously independent and politically untouchable Australian legal system, gloriously indifferent to the carnage he has caused because … I don’t really know why but I suspect the Toad of Toad Hall metaphor has more than just a pictorial resonance.
It’s an irony to behold that the Prime Minister, a brilliant lawyer and once a defender of the rule of law and separation of powers — which are pretty much all that distinguish our democracy from the paralysed disaster of America — is stuck with an Attorney-General whose conduct is objectively, consistently destructive to everything true lawyers hold dear.
Seriously, George has become like that kid in primary school who spent every day alternating between correcting the teacher’s grammar, incorrectly, and being bashed in the toilets. Yesterday, it was Justin Gleeson’s turn to smack his smug face on his way out the door.
Gleeson was the Commonwealth Solicitor-General, appointed for a fixed term of office and removable only by the Governor-General in exceptional circumstances. His role, protected by statute, is one of an elite few that are designed explicitly to ensure complete independence from political interference, both real and perceived. Gleeson, one of the country’s most eminent lawyers with a perfect reputation for integrity, elected to resign his office and tell the world, in no uncertain terms, how low is his opinion of the AG. Lawyers across the country read Gleeson’s resignation letter and went very, very quiet …
Unprecedented? Uh, yeah, we’ve had only 10 solicitors-general since the post was created in 1916, and none of Gleeson’s predecessors has departed under circumstances anything like this. This is a full-on crisis.
[How much damage will Turnbull let his Attorney-General cause?]
Gleeson didn’t hold back in his letter, except for the bit he probably wanted to say about how Brandis should return his QC certificate to the cereal company from whence it came. What he did say, having confirmed the non-secret that his relationship of trust and confidence with Brandis was “irretrievably broken”, was that he wanted “to make perfectly plain that I reject absolutely each and every attack and insinuation that has been made in recent times upon me personally, or upon my office, by Government members of Parliament, including you, in Senate committee processes.” Them’s fightin’ words, lawyer-wise.
The lead-up was that Brandis had taken a dislike to Gleeson’s insistence on giving independent advice to the government. So Brandis started getting advice from external barristers instead. Then he tried to muzzle Gleeson by creating a new and — in Gleeson’s ironically independent opinion, unlawful — direction that all government requests for advice from the Solicitor-General had to go through the Attorney-General first. On the way through, Brandis misled Parliament about whether he had consulted Gleeson before making this change, and Gleeson called him out on it in front of a Senate committee.
Legal cockfighting aside, the real issue was that Brandis didn’t like Gleeson, and so he set about trying to force him out of the office from which he couldn’t sack him. Sound familiar? It should, because he tried the very same thing back in February 2015 on another fiercely independent statutory office holder, Australian Human Rights Commission President Gillian Triggs.
The two cases are remarkably similar; Triggs and Gleeson are both top lawyers with impeccable reputations and renowned as brilliant in their fields. They were objectively excellent choices for their high-profile roles. For all the crap thrown at Triggs, the truth is that neither of them was a political appointment, and neither Triggs nor Gleeson has demonstrated any political bias in reality.
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The second parallel is that clearly neither Triggs nor Gleeson gives a stuff what the government thinks of them. They did what lawyers are supposed to do: exercised total autonomy and independence in the performance of their roles, giving advice within their briefs fearlessly and apolitically.
Thirdly, that quality of true independence, the one proper lawyers most adore, is the one thing George Brandis cannot abide. Whether that’s because he, by choice, places partisan politics always above his responsibility to protect the rule of law or because he just isn’t very bright doesn’t matter. The point is that he cannot or will not work co-operatively with statutory officers who insist on doing their jobs properly. His response is to bully them into submission.
Triggs’ crime was to report on the (Labor and Coalition) governments’ breaches of their international human rights obligations in the conduct of the offshore detention centres on Manus Island and Nauru. This caused Brandis to melt down in front of a Senate committee (parallel No. 4), declaring that Triggs was politically partisan and he had lost confidence in her and the AHRC.
[Justin Gleeson resigns, tosses final grenade at Brandis]
It turned out that Brandis had earlier tried to get rid of Triggs by sending his minion to offer her a diplomatic posting if she’d resign. I guess he learnt that lesson at least, because Gleeson is so obviously angry I doubt he’d be holding back if anything similar had happened to him.
Triggs held her ground; Gleeson walked. Neither choice is wrong. They were each entitled to continue in their post, or resign. They each executed their decision with dignity intact and reputation enhanced. Gleeson is a terrible loss, his resignation a permanent crack in what had been a solid plank of our legal foundations, and an indelible black mark on Brandis’ card. What half-decent lawyer would accept the tainted role now?
In 115 years of federation, a situation like this has arisen precisely once: now. Brandis has manufactured, entirely on his own, a crisis of confidence in Australia’s system of laws and government. And for what?
So here’s the thing. Speaking as a moving part of the legal system, which I believe is all that can protect us from the abyss of totalitarianism to which the present global wave of nativist populism is the necessary precursor, I want only one thing from my first law officer. I want them to preserve and protect the law. By that measure, Brandis has failed us, abjectly.
It’s regrettable in the extreme that we appear to be stuck, because the Prime Minister is stuck, with an Attorney-General who is either too cynical or not intelligent enough to see the long-term damage his petty personal feuds are inflicting on a legal system of which we used to have reason to be proud. The law can’t make him go, but it sure wants him to.