If you’re not a George Brandis fan, the thought of the Attorney-General’s final bow being taken in the form of proceedings against him for contempt of court is almost too enticing for words.  But lawyers are never stuck for words.

A brief chronology to start:

May 2014 Shadow attorney-general Mark Dreyfus issues Freedom of Information Act (FOI) requests for George Brandis’ ministerial diary covering the period September 18, 2013 to May 12, 2014.

June 2014 Attorney-General’s Department refuses the FOI request.

December 2015 On an application by Dreyfus, the Administrative Appeals Tribunal (AAT) sets aside the AG’s refusal and orders it to deal with the FOI request.

September 2016 Rejecting the AG’s appeal, the full Federal Court upholds the AAT decision.

February 2017 (and counting) no further progress.

The Brandis diary’s contents remain a mystery, matched only by the silence emanating from the Attorney-General’s Department regarding whether, if ever, it intends handing them over. Is the Attorney-General in a spot of bother?

As it happens, this 21-month (so far) extremely expensive legal dispute adds up to four-fifths of bugger all. Dreyfus wanted a print-out of Brandis’ Outlook calendar showing his appointments — because the May 2014 budget had included the defunding of environmental defenders’ offices, and Dreyfus wanted to see whether the Attorney-General had bothered to meet with any of the affected parties before the cuts.

So it was all just a minor political point-scoring exercise, hardly likely to ruffle the national ennui. Still, Brandis has proved himself highly adept at applying the resources of the Commonwealth in inverse proportion to the importance of the issue at hand.

[We might yet get a peek into Brandis’ diary as AG loses Federal Court case]

When confronted by the Dreyfus FOI request, Brandis’ chief of staff, Paul O’Sullivan, refused to hand over the diaries (containing 1930 entries) on the grounds that the work required would “substantially and unreasonably divert” the AG’s resources from its important daily work.

O’Sullivan calculated that it would take up to 630 hours to do everything required to handle the request. Most of this involved personally contacting every single person identified as having had a meeting with Brandis, to ask them whether they objected.

The AAT, noting that almost all the diary entries disclosed only who met Brandis and when they did it, couldn’t see the fuss. It declared the AG’s argument to be utter rubbish and ordered Brandis’ team to go back and process the FOI request properly.

Fast-forward (legal joke) another nine months, and the Federal Court rejected Brandis’ appeal. That’s where the legal fight came to a rest. The original obligation, requiring Brandis’ department to review and respond answer Dreyfus’ request, remained in place.  

[Brandis heads to court to try to keep diary secret]

Five months on, nothing. Dreyfus has taken his frustration public again:

“Time’s up, it’s time for him to comply with the orders of the court and the tribunal. It’s an extraordinary thing, not only for the Attorney-General to be even in the position where he might be in contempt of an Administrative Appeals Tribunal order, it’s an extraordinary thing, for an Attorney-General to have flouted an act he is meant to be responsible for.”

True, Brandis is the minister responsible for the freedom of information law, so the irony is rich. But is he in contempt? Or was Dreyfus’ insertion of the “might” a hint that he’s laying it on a bit thick?

“Contempt” is one of the few words that can actually turn a lawyer’s blood cold (legal joke). It’s as ancient as the courts, a weapon of unlimited reach designed to deter all of us from treating the legal system with anything but complete respect.

An easy way to explain contempt of court is to say that everything Donald Trump tweets about judges and courts are perfect illustrations of it. For example, when he called the federal judge who put a stop to his Muslim ban a “so-called judge”, that’s contempt.

Any refusal or unexcused failure to comply with an order made by a court is, on its face, a contempt of that court.  The punishment for contempt is in the hands of the court; the principle is that the miscreant may be exposed to whatever sanction is necessary for the contempt to be cured. A journalist who defies a non-publication order can expect a big fine or even prison time (see Hinch, Derryn). A civil litigant who ignores a compulsory order to do or not do something, likewise.

But is Brandis in contempt? No, and here’s why. The actual order made by the AAT and upheld by the Full Court was this: that the original decision by the Attorney-General refusing the FOI request be set aside and replaced by a decision that the stated grounds for refusal didn’t exist.

The tribunal did not order Brandis to hand over his diary. The effect of its order was that his basis for refusal was gone, but that meant that he had to go back and deal with the request properly. He could still refuse it, if a legitimate reason existed.

Under the FOI Act, all this was supposed to be done within 30 days, or at the outside 60 days if an extension was needed and communicated to Dreyfus (which it wasn’t). Whatever the story, the time for compliance ended months ago.

One detail not mentioned by Dreyfus — failure to make a decision on a request within the requisite time is deemed to be a refusal. That appears to be what’s happened here; the AG has simply sat on the FOI request, and the effect is that it’s been refused altogether.  

The next step in this endless exercise in legal tedium is for Dreyfus to take the deemed refusal to the Information Commissioner, then back to the AAT, etc, giving Brandis three or four fresh opportunities to spend our money raising silly arguments about how it’s beyond the capacity of the Commonwealth to export his calendar from Outlook into Word and press Print.

Does Brandis’ recalcitrant refusal to just deal with this tiny issue constitute a contempt of court? No. It does, however, comfortably fit the definition of a different, non-legal type of contempt. See “Politicians; public loss of regard for.”

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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