The fight between ex- Solicitor-General Justin Gleeson and Attorney General George Brandis has made headline news.
The reasons for Gleeson’s resignation are extremely important and bear on the independent nature of the Solicitor- General’s office.
It would appear that Brandis’ actions over an extended period have undermined that independence.
The independence of the Solicitor-General’s office is not a political issue with the popular pulling power of the Same-Sex Marriage Plebiscite. Yet, it is of equal importance because it is concerned with the fundamental relationship between government legislation and the laws of the country and like changes to the Marriage Act will have long-term implications for democracy.
At the heart of the matter, is Brandis’ determination to control Members of Parliament, from the Prime Minister down, access to independent advice from the Solicitor-General. It is entirely possible that a member of Parliament would wish to seek advice about the legality of the actions of the Attorney General. In this instance alone, it would be undesirable for the Attorney General to have the right to veto over this.
George Williams, Dean of Law at the University of New South Wales, has written a thoughtful and penetrating article on Gleeson’s resignation.
Here are some excerpts:
The resignation of Justin Gleeson is unprecedented in the 100-year history of the federal solicitor-general.
The battle with his solicitor-general, along with his dysfunctional relationship with Australian Human Rights Commission president Gillian Triggs, presents a worrying pattern. It portrays a minister unable to work appropriately with independent officeholders within his portfolio. This is damaging for any minister, but especially for an attorney-general expected to be the defender of such offices.
Every government needs a strong and effective solicitor-general. The officeholder represents the Commonwealth in international tribunals and the High Court, and advises on the most contentious and difficult legal issues. Such advice is crucial for ensuring that policies and programs stay within the ambit of the law.
Independence is required to communicate difficult counsel to ministers about the limits of the law. The office demands credibility and integrity, and not a willingness to bow to ministers seeking a politically acceptable answer.
It says much that there have been only 10 federal solicitors-general since 1916. Officeholders have often served multiple governments and numerous prime ministers, emphasising the non-political nature of the role.
One of ( Brandis’ mistakes is) inaccurate representation of legal advice he received on a bill to strip citizenship from dual nationals. Grave doubts emerged about the validity of that law. Brandis responded with reassurance that the solicitor-general had advised that “there is a good prospect that a majority of the High Court would reject a constitutional challenge to the core aspects of the bill”. Gleeson has since revealed that he did not advise on the bill then before Parliament, as Brandis had implied.
This is a serious charge given that Parliament accepted the Minister’s words at face value, and proceeded to enact the law based upon his assurances.
It is unlikely that Prime Minister Malcolm Turnbull will take any action to remove Brandis but he will be damned if he does and damned if he doesn’t. At the heart of this particular problem is the total inability of the Turnbull government to control the political and democratic processes of the Parliament.