The resignation of Solicitor-General Justin Gleeson places the Prime Minister in a difficult position: he must decide just how much damage he will allow his bumbling Attorney-General, George Brandis, to inflict on Australia’s key institutions before he either forces Brandis to resign or Brandis leaves of his own accord to take up another taxpayer-funded position outside politics, as seems likely.
As Gleeson’s departure demonstrates, Brandis is no longer just a liability for the Turnbull government, he’s a liability for the rule of law and good government. The Solicitor-General is not just another senior public servant — he is intended to play a specific and very important role within the Commonwealth, as the source of binding legal advice for the government. That’s why the position is the creation of a separate act (the Legal Officers Act 1964) and why the role is intended to be independent. Without an independent Solicitor-General, the only legal advice the government will have is the advice it wants to get from the public service (the Australian Government Solicitor), or privately from hand-picked barristers. That is, it will get the advice it wants politically, but not the advice it necessarily needs.
Trashing the role of Solicitor-General — as Brandis has seemingly so gleefully been doing since he tried to sneak through an illegal restriction on access to the office on the eve of an election being called — will inflict long-term damage on the quality of the advice the government gets. Not in some nebulous public service manner, but directly, in terms of courtroom defeats, most particularly in the High Court. As Brandis now looks for a replacement, how many eminent lawyers are going to want to serve under him as second law officer, when they know the position has been the subject of vilification and undermining from — as Gleeson’s extraordinary, ferocious resignation letter makes clear — both Brandis himself and his Liberal National Party cronies?
For this is a scandal made in Queensland: Brandis is a mediocre Brisbane barrister possessed of a hypertrophied estimate of his political and legal talents, kept on ice for most of the Howard years because John Howard had an acute sense of political horseflesh. Howard’s judgement has been repeatedly vindicated in the years since: as a minister, virtually everything Brandis has touched has gone wrong. And in the Senate Legal and Constitutional References Committee hearings, Gleeson was abused and mocked by Ian Macdonald, the elderly LNP senator who chairs the legislation committee with an insistence on decorum and civility toward himself, but who readily yells over witnesses when he’s freelancing on the references committee. Macdonald was backed in his attacks on Gleeson by his Queensland colleague Barry O’Sullivan.
In resigning in order to enable his replacement by someone able to have a working relationship with the Attorney-General, Gleeson has demonstrated an acute sense of commitment to the interests of the Commonwealth: Gleeson was not the one who failed to consult, not the one who issued an illegal direction, or who misled the Senate (in writing) about consulting; Gleeson wasn’t the one who made legal howlers in his own defence. But he’s the one who has resigned to end the impasse, when it is Brandis who should have done so, or Malcolm Turnbull. He emerges from the scandal with his integrity and legal reputation untarnished.
But beyond the personalities and day-to-day politics, his departure resolves nothing. Brandis has seriously damaged a key office in the Commonwealth. By remaining in his position, the Attorney-General perpetuates and exacerbates that damage. Only his removal can resolve this extraordinary and harmful debacle.