George Brandis

Unsurprisingly, the Senate’s Legal and Constitutional Affairs references committee has recommended that Attorney-General George Brandis’s direction restricting access to the Solicitor-General be disallowed or withdrawn and that Brandis be censured. Being a references committee, it was controlled by non-government senators — in this case, Labor’s Louise Pratt — and the government was going to need crossbench senators to back it to have any hope of isolating Labor. That was never likely to happen: the two crossbench senators, the Greens’ Nick McKim and Nick Xenophon, backed Labor.

After all the theatre and farce of Solicitor-General Justin Gleeson’s appearance before the committee, and the efforts of Coalition senators Ian Macdonald, Barry O’Sullivan and Linda Reynolds to harass and intimidate him (including Reynolds’ failed effort to force Gleeson to answer over 100 additional questions after the hearing), the core case for the non-government members to make was twofold. Was the direction illegal, and did Brandis consult Gleeson?

[Concession and casuistry: Brandis admits Gleeson is right]

On legality, the non-government senators “noted” the argument of former solicitor-general Gavan Griffith, who submitted to the committee that Brandis’ direction “is void and of no legal effect” because the Solicitor-General is not captured by Judiciary Act 1903 on which Brandis relies but is directly regulated by the Law Officers Act — which defines the role of the Solicitor-General. That’s also the act Gleeson relied on to argue that Brandis’ direction was illegal. But there was no specific recommendation or finding by the committee about legality — merely the strong impression they agreed with Griffith.

On consultation, the report is much clearer — and is actually not a bad distillation of the argument between Brandis and Gleeson. Brandis’ position is that he has almost infinite discretion about how much “consultation” he is required to undertake because the wording of section 17 of the Legislation Act 2003 is so loose. That section merely states:

“Before a legislative instrument is made, the rule‑maker must be satisfied that there has been undertaken any consultation that is:

                     (a)  considered by the rule‑maker to be appropriate; and

                     (b)  reasonably practicable to undertake.”

There are additional things the rule-maker may do, but no actual requirements. The non-government senators’ response is that:

“It is simply not possible for the Attorney-General to have consulted on an instrument that was not yet in existence or even contemplation. By his own admission the Attorney-General has confirmed that there was no proposed instrument at the time of the meeting on 30 November 2015.”

This is quite true — in order to avoid the problem that at no stage was there any discussion of a new direction between Brandis and Gleeson except a passing mention in a meeting to the now-superseded direction then in force, Brandis has argued he wasn’t actually considering issuing a direction at that point, but he came to the conclusion one was necessary at a later point. This leaves Brandis in the position of arguing you can consult even before you think there’s anything to consult on.

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

The problem for Brandis is that he has a strong legal position from first principles — if he decided to issue a new direction and didn’t want to consult Gleeson about it (for whatever reason, because we’re still not clear why Brandis didn’t consult the second law officer apart from sheer bloody-mindedness) he could have justified himself by saying that he or his staff undertook the consultation he considered appropriate under the Legislation Act, which was none. But Brandis didn’t do that — he specifically told the Senate that he had consulted with Gleeson on the direction, which on his own account could not have happened, because he hadn’t even thought about a direction when he “consulted” the Solicitor-General. The Legislation Act can’t get Brandis off the hook.

As the committee report notes:

“The Attorney-General’s claim to have ‘consulted’ the Solicitor-General brings to mind the dissenting judgment of Lord Atkin in the famous administrative law decision of the House of Lords in Liversidge v Anderson, where he said:

I know of only one authority which might justify the suggested method of construction. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less’.”

Needless to say, government senators disagree — although the dissenting report, written by Ian Macdonald, is extensively devoted to attacking Gleeson. Macdonald’s dissenting report runs for 62 paragraphs, 20 of which are explicitly devoted to attacking Gleeson, who is termed “idiosyncratic”, “fractious”, possessed of a “surprising attitude” who committed “a grave error of judgment” and who, in a very serious charge, is accused by Macdonald of providing “clearly false and misleading” evidence to the committee.

[Gleeson, like Triggs, has a quality Brandis simply can’t stomach: independence]

With Gleeson now gone and the direction almost certainly to be disallowed by the Senate, the whole affair looks, in retrospect, remarkably unnecessary. Brandis or his office or department could have made a single phone call to Gleeson to discussing the direction once Brandis had decided to issue it. Even if Gleeson disagreed with the legality, Brandis could have pressed on. Instead, in yet another of Brandis’ long list of misjudgements, he refused to, and then misled the Senate about it.

The sooner Brandis moves on to whatever post-political job the Prime Minister has waiting for him, the better — especially for his colleagues.

Peter Fray

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