tag:theconversation.com,2011:/africa/topics/solicitor-general-32004/articlesSolicitor-General – The Conversation2023-04-21T07:02:38Ztag:theconversation.com,2011:article/2042662023-04-21T07:02:38Z2023-04-21T07:02:38ZSolicitor-general confirms Voice model is legally sound, will not ‘fetter or impede’ parliament<p>The federal government today released the long-awaited legal advice on the Voice to parliament from Australia’s solicitor-general, Stephen Donaghue.</p>
<p>In it, Donaghue states that the proposed model for the Voice “will not fetter or impede the exercise of existing powers of Parliament”, adding that the proposal</p>
<blockquote>
<p>is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system.</p>
</blockquote>
<p>The advice makes clear the Voice is legally sound.</p>
<h2>The Voice to parliament</h2>
<p>In the <a href="https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF">Uluru Statement from the Heart</a>, Aboriginal and Torres Strait Islander people expressed the “torment of our powerlessness”. They explained that they do not feel they are heard in the design of law and policy that affects them. They called for a Voice to be put in the Constitution to allow them to have a say. </p>
<p>In our system of government, proposed laws are developed within the executive, which includes the cabinet and government departments. Then they’re presented to parliament. This means that if an Aboriginal and Torres Strait Islander Voice is to be able to inform law and policy, it needs to speak to both the parliament and the executive.</p>
<p>The Albanese government’s proposed constitutional amendment recognises this. Section 129(2) provides that the Aboriginal and Torres Strait Islander Voice “may make representations” to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander people. </p>
<p>This language was developed with the advice of some of the nation’s leading <a href="https://voice.niaa.gov.au/who-involved">constitutional law experts</a>. However, some concerns have been raised about the proposal.</p>
<p>For example, Opposition Leader Peter Dutton has <a href="https://www.theaustralian.com.au/inquirer/anthony-albaneses-indigenous-voice-to-parliament-an-offensive-vanity-project/news-story/968436244e8d68ed29f9193a025d3277">argued</a> that allowing the Voice to present its views to the executive will mark a radical change in Australia’s system of government. Conservative commentators have <a href="https://www.theaustralian.com.au/inquirer/indigenous-voice-to-parliament-will-create-cogovernment-and-cause-policy-chaos/news-story/c9bba90e726a77514fd463a561fc69ea">suggested</a> the Voice will delay or derail proper administration. They argue ministers and public servants will need to give the Voice time and information to enable the Voice to make representations. Ministers may even be obliged to consult and adopt those representations.</p>
<p>The solicitor-general has dismissed these concerns. </p>
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Read more:
<a href="https://theconversation.com/why-cant-we-just-establish-the-voice-to-parliament-through-legislation-a-constitutional-law-expert-explains-203652">Why can't we just establish the Voice to Parliament through legislation? A constitutional law expert explains</a>
</strong>
</em>
</p>
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<h2>Who is the solicitor-general?</h2>
<p>The solicitor-general is Australia’s second highest-ranking law officer, after the attorney-general. However, while the attorney-general is a political position filled by a member of parliament, the solicitor-general is independent. Their job is to provide independent legal advice to the government and represent the Commonwealth in legal proceedings.</p>
<p>The solicitor-general was asked to advise the government on two questions. </p>
<ol>
<li><p>whether the proposed amendment is compatible with Australia’s system of government</p></li>
<li><p>and whether the proposed amendment gives parliament the power to decide the legal effect of any representation, or whether parliament and the executive are required to consider or follow those representations. </p></li>
</ol>
<h2>What does the advice say?</h2>
<p><strong>Question 1</strong></p>
<p>The solicitor-general was very clear. The Voice “would not pose any threat” to our system of government. In fact, it would “enhance” our system.</p>
<p>Donaghue reached this conclusion for two reasons. First, the Voice does not alter the powers of parliament or government in any way. Section 129(2) makes clear the Voice has no veto. Section 129(2) also does not impose any obligation on parliament or the executive to consult with the Voice or follow its advice. </p>
<p>Second, more fundamentally, the Voice would remedy a “distortion” in our system of government. The solicitor-general explained that the Voice would help overcome “barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander people in political discussions and decisions that affect them”. In short, it would improve our democracy by ensuring Indigenous people can have their voices heard.</p>
<p><strong>Question 2</strong></p>
<p>The second question was directed at the scope of the Voice’s power. It asked whether the parliament or executive would be required to consider or follow representations made by the Voice. </p>
<p>Once again, the solicitor-general was very clear: the answer is no. Donaghue explained that although it would “plainly be desirable for the Executive Government to consider any representations that the Voice makes to it”, parliament has the ultimate say.</p>
<p>This means parliament could enact a law to require ministers or public servants take the advice of the Voice into account when making decisions. However, parliament could always amend or remove such a requirement. The Voice is subject to parliament.</p>
<h2>What happens next?</h2>
<p>The Voice is a proposal which seeks to ensure Aboriginal and Torres Strait Islander people can participate “<a href="https://www.quarterlyessay.com.au/content/correspondence-megan-davis">in the democratic life of the state</a>”. It seeks to provide an opportunity for them to have their voices heard in the design and delivery of law and policy that affects them.</p>
<p>Prime Minister Anthony Albanese has argued the solicitor-general’s advice “<a href="https://www.abc.net.au/news/2023-04-21/voice-to-parliament-legally-sound-says-solicitor-general/102250768">puts to bed</a>” concerns raised by Dutton and others. While the Opposition may disagree, the advice strengthens the view that the Voice is legally sound.</p><img src="https://counter.theconversation.com/content/204266/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Hobbs is a member of the ALP.</span></em></p>The solicitor-general said the model is compatible with responsible government, and an ‘enhancement’ of the system.Harry Hobbs, Associate professor, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1892382022-08-23T11:37:14Z2022-08-23T11:37:14ZView from The Hill: How does Albanese frame Morrison inquiry without embroiling the governor-general?<p>Solicitor-General Stephen Donaghue has neatly summarised Scott Morrison’s political misdemeanour in having himself secretly appointed to all those ministries. </p>
<p>Morrison, by his failure to disclose what he had done, undermined the Westminster system of “responsible government” at the most basic level. </p>
<p>Ministers are responsible to parliament and, through parliament, to the voters. But how can there be that accountability if parliament and the public don’t know a (prime) minister has been appointed to administer a particular department? </p>
<p>As Anthony Albanese says, there remain outstanding questions in this affair. Despite his news conference last week, and more comments on Tuesday after the solicitor-general’s opinion was released, Morrison has not convincingly explained why he behaved in this strange way, with such discourtesy to colleagues, let along disdain for the public. </p>
<p>But whether we need a full legal inquiry is another matter. That smacks of current politics as well as past payback – for the investigations the Coalition government launched after it took office, into the “pink batts” scheme and into the trade unions. </p>
<p>Together, those royal commissions saw two former Labor prime ministers (Kevin Rudd and Julia Gillard) and a Labor opposition leader (Bill Shorten) giving evidence. </p>
<p>Labor would relish similar public pressure put on Morrison. </p>
<p>There’s no doubt what Morrison did was reprehensible. He was able to do it because of a gap in the political system’s safeguards, allowing for ministerial appointments to go unannounced. </p>
<p>But that gap is one which can be easily fixed, either by changes to rules or by legislation to ensure all such appointments have to be immediately disclosed. </p>
<p>Legislation would be best because once in place, it effectively couldn’t be undone. What government would try to repeal it, to allow secrecy again? </p>
<p>Going to an inquiry raises some tricky questions for the government, as it works out the detail of its terms of reference. </p>
<p>Prime among these is the matter of the Governor-General, David Hurley. </p>
<p>Hurley acted, properly, on government advice in ticking off on the Morrison appointments. But he also had the capacity to ask questions about what he was signing and, as far as we know, he didn’t do that. Hence there has been sharp criticism of him from some quarters.</p>
<p>From what we can judge, Albanese doesn’t want to embroil Hurley. </p>
<p>Asked whether the inquiry would examine Hurley’s role or exempt him, Albanese said: “Well, the governor-general’s role has been examined here [in the opinion]”. </p>
<p>Hurley had made “a very clear statement”, from his perspective, on how he operated, taking the advice of the government of the day, “which is consistent with the responsibility of the governor-general”, Albanese said. </p>
<p>The idea of the governor-general being asked to give evidence goes into awkward territory, even if it just exposed that Hurley wasn’t sharp enough to notice anything unusual. </p>
<p>But it is hard to figure how the governor-general can be carved out of an inquiry, if that inquiry is to get to the full story. This is especially so given the inquiry will look at the role of the prime minister’s department in preparing the request that was dispatched to Hurley. Clearly some bureaucrats will be in the frame.</p>
<p>Constitutional expert George Williams, from the University of NSW, is one who thinks Hurley’s role should not be excluded. Not because Hurley did anything wrong, but because “the governor-general was at the centre of the ratification”. </p>
<p>Williams would prefer a parliamentary inquiry, rather than one by a legal figure. “Parliamentarians should assert themselves in solving this problem”, he says. </p>
<p>The revelations about Morrison’s conduct have yielded a political bonanza for Albanese, and he will be hoping for more. Whether the inquiry will be seen in retrospect as justified, or political overkill, will depend on what it uncovers.</p>
<p>The <a href="https://www.pmc.gov.au/news-centre/government/solicitor-general-opinion-validity-appointment-mr-morrison">solicitor-general’s opinion</a> is another blow for Morrison’s record (and his quest for future employment), and for the Coalition as it tries to regroup. </p>
<p>Morrison, writing on Facebook on Tuesday, summarised his defence in these seven points. </p>
<blockquote>
<p>the authorities established were valid</p>
<p>there was no consistent process for publication of such authorities</p>
<p>no powers were exercised under these authorities, except in the
case of the PEP11 [gas exploration] decision, or misused</p>
<p>Ministers exercised their portfolio authorities fully, with my utmost confidence and trust, without intervention</p>
<p>as Prime Minister I did not ‘Act’ as Minister or engage in any
‘Co-Minister’ arrangements, except in the case of the PEP11 decision</p>
<p>on the PEP11 matter, this was done lawfully from first principles
and my intent to do so was advised to the relevant Minister before
doing so</p>
<p>Australia’s performance through the pandemic was one of the
strongest in the developed world</p>
</blockquote>
<p>He also said: “I will appropriately assist any genuine process to learn the lessons
from the pandemic. I would expect that any credible processes would
also extend to the actions of the States and Territories”. </p>
<p>But this inquiry is not one broadly into the handling of the pandemic. Albanese indicated a wider inquiry is still some time away.</p>
<p>Morrison can protest all he likes, but now that the appropriateness of his bizarre power grab has become an argument between him and the solicitor-general, he is on a hiding to nothing.</p><img src="https://counter.theconversation.com/content/189238/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Solicitor-General Stephen Donaghue has neatly summarised Scott Morrison’s political misdemeanour in having himself secretly appointed to all those ministries.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/676372016-10-25T02:40:16Z2016-10-25T02:40:16ZBrandis mishandles a fight he should never have had<p>The dramatic break between the Attorney-General and the Solicitor-General – which culminated spectacularly in Justin Gleeson’s resignation on Monday – was a saga of misjudgments and mismanagement.</p>
<p>It has cost George Brandis reputation, lost the services to the Commonwealth of a highly respected law officer, and seen Gleeson out of the job he prized. </p>
<p>As Gleeson wrote in his trenchantly-worded resignation letter, there had been an irretrievable breakdown in the relationship between the first and second law officers.</p>
<p>The situation had gone beyond salvaging. Gleeson chose to quit while not retreating one iota from the case he had made against Brandis. </p>
<p>By so doing, he struck another blow against the Attorney, who is also likely to face sharp criticism from the non-government majority on the Senate inquiry into the affair, which is due to report by November 8. </p>
<p>The story started when Gleeson wrote to Brandis last November seeking clarification about the advisory process. </p>
<p>He put forward complaints. Brandis had used his advice on the draft stage of citizenship legislation - for the purpose of political argument – when he hadn’t been asked for advice on the final bill. </p>
<p>Also he was clearly unhappy that the government was looking more widely for advice – he instanced not being consulted to that point on marriage legislation. </p>
<p>Brandis convened a meeting, which canvassed a range of matters. Subsequently, Brandis decided to issue a formal “direction” that all requests for the Solicitor-General’s advice had to go through the Attorney-General’s office. </p>
<p>This sent Gleeson, obviously already concerned that he might be being sidelined, ballistic. </p>
<p>He hadn’t been warned before the direction was tabled; he believed he hadn’t been consulted as required; he thought the direction illegal. </p>
<p>Brandis, on the other hand, maintained he was simply bringing practice in line with how he read the law, and insisted the earlier discussion amounted to adequate consultation.</p>
<p>Brandis’s fundamental mistake was the direction, which he should have anticipated would be provocative and challenged in legal circles. He didn’t think through the wider consequences. </p>
<p>Brandis also made a serious lapse in not forewarning Gleeson, especially given his obvious sensitivity around his position. It would have been better to have had the argument ahead of the tabling rather than afterwards. </p>
<p>But then, damage done, Brandis failed to find a credible way out. </p>
<p>If, as he said, he thought he was doing nothing radical, Brandis should have negotiated a retreat or compromise when things began to blow up. </p>
<p>For example, if he believed the direction encompassed the process required by the law he could have proposed re-jigging that law. He hinted, when giving evidence to the Senate inquiry, that perhaps the Senate committee should look at the law. </p>
<p>Retreating might have been hard for someone with Brandis’s personality, but the final outcome has been worse. </p>
<p>For his part, Gleeson was not faultless. </p>
<p>When Brandis wrote to him in August inviting him to put his complaints, he didn’t take up the offer. </p>
<p>More importantly, when Labor’s Shadow Attorney-General Mark Dreyfus contacted Gleeson during the election, the Solicitor-General handled this badly.</p>
<p>Dreyfus asked whether Gleeson had been consulted about the direction and whether he agreed with it. </p>
<p>Gleeson answered no to both questions. </p>
<p>He should have either declined to engage with Dreyfus or if he chose to do so, he ought to have informed the government. </p>
<p>Whatever legal rationale Gleeson had, his action didn’t pass the common sense test. The caretaker period requires both abundant caution and maximum transparency from Commonwealth officers. </p>
<p>Unless he is a total political innocent, Gleeson must have known that Dreyfus was making a political call. </p>
<p>Some in the government might be glad to see the back of Gleeson – Coalition senators treated him with certain contempt when he appeared before them – but for Malcolm Turnbull the affair is another setback. </p>
<p>It’s a very bad look for the government when the second law officer has resigned on a point of principle with a full-on attack on the Attorney-General. It’s also yet another distraction from what the government wants to talk about. </p>
<p>As for Brandis, he ends up losing all round. The political assault on him will go on for some time and the Senate appears certain to quash the direction. The damage has been self-imposed. </p>
<iframe src="https://www.podbean.com/media/player/3jqqj-63ac0a?from=yiiadmin" data-link="https://www.podbean.com/media/player/3jqqj-63ac0a?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe>
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The dramatic break between the Attorney-General and the Solicitor-General – which culminated spectacularly in Justin Gleeson’s resignation on Monday – was a saga of misjudgments and mismanagement. It has…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/675692016-10-24T22:15:01Z2016-10-24T22:15:01ZRole of Solicitor-General has been damaged and the government must work to fix it<figure><img src="https://images.theconversation.com/files/142988/original/image-20161024-28423-19sd9mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former Solicitor-General Justin Gleeson has resigned his post.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>On Monday night, over 250 people gathered to <a href="http://www.gtcentre.unsw.edu.au/events/celebrating-100-years-commonwealth-solicitor-general">celebrate</a> 100 years since the appointment of the first Commonwealth Solicitor-General, <a href="http://adb.anu.edu.au/biography/garran-sir-robert-randolph-410">Sir Robert Garran</a>. The event marked a century of an <a href="http://www.bloomsbury.com/au/role-of-the-solicitor-general-9781849467124/">office</a> that is widely accepted as being integral to government under the rule of law.</p>
<p>But just hours earlier, the Solicitor-General, Justin Gleeson SC, had <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FourthQuarter/Resignation-of-mr-justin-gleeson-sc.aspx">resigned</a>, citing irreconcilable differences with the Attorney-General, Senator George Brandis QC.</p>
<p>Gleeson is a <a href="http://www.smh.com.au/federal-politics/political-news/solicitorgeneral-justin-gleeson-the-man-at-war-with-george-brandis-20161005-grvxil.html">leading lawyer</a> from the Sydney Bar: a highly respected advocate and legal mind both in Australia and internationally. The government’s loss of his legal acumen and integrity is the first, immediate blow.</p>
<p>Less immediately, Gleeson’s resignation, and the events that preceded it, strike at the office itself. The government needs to take urgent but careful steps to restore confidence in the office, and heal the damage that has been caused over the last few months.</p>
<h2>Trust, respect and independence</h2>
<p>In his letter of resignation, Gleeson explained that:</p>
<blockquote>
<p>[T]he best interests of the Commonwealth can be served only when its first and second Law Officers enjoy each other’s complete trust and confidence within a mutually respectful relationship.</p>
</blockquote>
<p>He is undoubtedly correct. The statute that creates the Solicitor-General, the <a href="https://www.legislation.gov.au/Details/C2012C00303">Law Officers Act 1964</a>, offers some protection for the Second Law Officer’s independence in the form of a statutory guarantee of tenure. However, the proper functioning of the office requires the trust, confidence, respect and good faith of the government. These should be exemplified, championed, protected and defended by the first Law Officer, the Attorney-General.</p>
<p>What has been revealed through the <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/SolicitorGeneralOpinion">Senate’s Legal and Constitutional Affairs Committee </a> inquiry is that the relationship between Brandis and Gleeson now lacks these attributes.</p>
<p>It is difficult to determine when exactly that loss of trust occurred. On the public record there are now accusations from the Solicitor-General that the Attorney-General misrepresented his advice to Parliament. That the Attorney-General failed to seek his advice on important legal issues and instead took advice from elsewhere. That the Attorney-General issued a <a href="https://www.legislation.gov.au/Details/F2016L00645/Explanatory%20Statement/Text">direction</a> regarding the process for accessing the Solicitor-General’s advice that might be unlawful, and in any event radically changed and hindered the Solicitor-General’s ability to fulfil his role. And finally, that the Attorney-General lied about whether or not the Solicitor-General was consulted prior to the issue of that direction.</p>
<p>The Attorney-General, in turn, hotly disputed the accusations of the Solicitor-General. He raised his own concerns that the Solicitor-General had inappropriately revealed details of the legal advice he had provided, and had spoken to a member of the opposition during the caretaker period in the lead-up to the 2016 election.</p>
<p>The dysfunctional relationship between the two Law Officers was displayed when both men gave public evidence before the Senate Committee this month, which is investigating the circumstances surrounding the issue of the Attorney-General’s direction. The Committee is due to report on November 8.</p>
<p>As the Solicitor-General rightly identified, distrust and defensiveness between the Solicitor-General and the Attorney-General undermines the Solicitor-General’s ability to do his job.</p>
<p>As there is no statutory requirement to seek the advice of the Solicitor-General, where trust is eroded, a government may simply fail to consult a Solicitor-General. This concern is not new. In the US context, <a href="https://kansaspress.ku.edu/subjects/law/978-0-7006-0530-9.html">Professor Nancy Baker</a> has observed that neutral, or fiercely independent, officeholders may be isolated from policy development by government because of erosion of trust in the office’s commitment to the government’s agenda.</p>
<p>This trust and respect must exist so the government will seek out his or her advice before taking action, but also so that the government will follow and respect that advice. This is part of ensuring the government is not shopping around for legal opinions that supports its political agenda.</p>
<p>That is, of course, not to say that the Solicitor-General is invariably right on all legal questions. But no lawyer ever is. That is not the point. If there was no final and authoritative legal adviser within government – with an understanding of the historical legal position of government, the whole of government issues, and extensive expertise and experience in government law, and statutory guarantees of independence – the government could simply pick and chose its legal advice as convenient.</p>
<p>The Solicitor-General must give his or her legal view to the government with the utmost independence from the political desires of government. This is what gives the office its value. It is not enough to be a close and trusted adviser to the government unless that advice is provided independently. As Western Australian Solicitor-General Grant Donaldson QC explained:</p>
<blockquote>
<p>I can’t conceive of a circumstance if you have a good Attorney-General and a good government, where they want you to be anything other than independent. … [Governments] don’t want public servants or Solicitors-General to be giving them advice they want to hear. They’ve got political advisers who can do all of that sort of stuff.</p>
</blockquote>
<p>What becomes clear then is that the Solicitor-General treads a delicate path. He or she must be trusted and respected within government, so as to be sought out when significant legal issues arise. But the Solicitor-General must also provide robustly independent advice when it is sought.</p>
<p>There is an obvious fragility in the current arrangements, so heavily reliant as they are on properly functioning relationships. Given this, the Attorney-General’s treatment of the Solicitor-General, culminating in the resignation of the Solicitor-General yesterday, signals a dangerous precedent for the future.</p>
<h2>Where to from here?</h2>
<p>The government must now tread with both extreme urgency and extreme caution to ensure that it has, into the future, an independent, trusted and respected Solicitor-General.</p>
<p>First and foremost, this will only be achieved by the appointment of a highly respected, eminent and apolitical lawyer to the role. The government simply cannot play politics with this appointment.</p>
<p>Once appointed, that officeholder must work with the government to ensure the office is brought into the trust of government, ensuring that the advice of the office is sought when appropriate. But that officeholder must also work to ensure the government understands the role and respects the importance of its independence. This cannot be the task of the Solicitor-General alone. The Prime Minister, the Attorney-General, other Ministers, as well as the public servants and the other government lawyers working within the Attorney-General’s department must work to achieve this.</p>
<p>Part of this process must involve the revocation of the Attorney-General’s direction regarding the process for accessing the Solicitor-General’s advice. There remain serious concerns over its legality, which have now been expressed by a number of former Solicitors-General. Leaving that to one side, there is a real <a href="http://insidestory.org.au/a-fragile-relationship">danger</a> it will operate to discourage or even actively restrict those in government from accessing the Solicitor-General.</p>
<p>The Attorney-General should revoke the direction immediately. If he does not, it appears likely that the Senate will disallow it. Waiting for that, however, would be further and unnecessarily damaging to the office.</p>
<p>Finally, the government needs to consider other ways to reduce the possibility that similar tensions may arise in the future. This may include the reform of the current practice of refusing to release the Solicitor-General’s advice to the Parliament.</p>
<p>As has now been revealed, back in November last year, Gleeson wrote to Brandis raising his concerns that the current practice, particularly with respect to the advice he provided on the government’s citizenship-stripping proposal, may be resulting in statements to the Parliament that are possibly misleading as to the nature and content of his advice.</p>
<p><a href="https://theconversation.com/releasing-governments-advice-would-help-parliament-better-scrutinise-laws-50593">Reform of this practice</a> would have twin benefits. It would ensure Parliament is better informed in its consideration of proposed legislation. But, as we have now seen, it would reduce the possibility that the government is misrepresenting the Solicitor-General’s advice to further its own political agenda.</p><img src="https://counter.theconversation.com/content/67569/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council.</span></em></p>Justin Gleeson’s resignation strikes at the role of the Solicitor-General in Australia, and the government needs to take steps to restore confidence in the office.Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/670122016-10-13T12:49:20Z2016-10-13T12:49:20ZPolitics podcast: Mark Dreyfus on George Brandis’ solicitor-general controversy<p>A contentious move by Attorney-General George Brandis to restrict access to legal advice from the solicitor-general is continuing to raise controversy and questions about its legal validity. Shadow Attorney-General Mark Dreyfus tells Michelle Grattan that he sees this as “the most extraordinary power grab by the Attorney-General in the history of the office”.</p>
<p>“We already know that he’s held up requests. Why? I can’t say, but the deputy secretary of the department giving evidence to the Senate committee last week said that one of the requests had taken ten days. </p>
<p>"Now very often it’s urgent that you get legal advice. It’s never before been the position that secretaries of commonwealth departments, other ministers, the prime minister, the governor-general have been told that the written consent of the attorney-general is necessary before they get the advice of the solicitor-general,” he says.</p>
<p>The solicitor-general has to be the primary source of advice on the most important matters of the government, Dreyfus says. </p>
<p>“I’m not for a moment suggesting that in a complex, large government with 168,000 Australian public servants that every single legal question that the government comes into contact with has to go to the solicitor-general. </p>
<p>"Clearly that at a practical level couldn’t be the case but matters like the plebiscite bill, which the parliament is now dealing with, or the prorogation of parliament that occurred earlier this year or the citizenship bill – they are matters that the government should go to the solicitor-general [with] first.”</p>
<p>On the question of whether Labor should stick with its planned policy of enforcing a binding vote on marriage equality after the next election, Dreyfus says he thinks it is a “human rights matter”.</p>
<p>“That’s my own view and I argued in favour and voted in favour of the binding vote and that would remain my position … and let’s see if it’s the position that would give difficulty because by the time of the next Labor conference, this matter may well have been dealt with in the parliament.”</p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A contentious move by George Brandis to restrict access to legal advice from the solicitor-general is continuing to raise controversy and questions about its legal validity.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/666452016-10-06T12:24:37Z2016-10-06T12:24:37ZGrattan on Friday: Little but grief ahead for George Brandis in battle with solicitor-general<p>The future of Attorney-General George Brandis was a topic of political gossip well before the fight between him and Solicitor-General Justin Gleeson exploded spectacularly this week.</p>
<p>There’s been interest in both Canberra and Brisbane.</p>
<p>In Canberra, because if Brandis left parliament, he’d be replaced as Senate leader by Finance Minister Mathias Cormann, a man with much-needed skills in wrangling legislation through.</p>
<p>In Brisbane, because with speculation that Brandis mightn’t serve his full term the Liberal National Party activists are wondering who they might send to the Senate.</p>
<p>Rumours have swirled. Brandis to the High Court? Or perhaps high commissioner to London?</p>
<p>Anyone recalling Gough Whitlam’s experience of appointing his attorney-general, Lionel Murphy, to the High Court would instantly dismiss that option.</p>
<p>On the other hand, the London job is routinely used for political appointees; it’s currently occupied by former foreign minister Alexander Downer, whose term is up in May.</p>
<p>But Brandis declares he’s not going anywhere. Asked in the Senate last month whether he’d rule out accepting a diplomatic or judicial appointment before the end of his (six-year) term, he was unequivocal: “Yes, I can rule that out.”</p>
<p>The battle between Brandis and Gleeson follows Brandis tabling in parliament in May a binding direction that all requests for the solicitor-general to provide advice – even from the prime minister or the governor-general – should go through him rather than directly to Gleeson.</p>
<p>Gleeson says he wasn’t consulted about the direction, which he trenchantly opposes. Brandis has insisted he did consult him. Gleeson has effectively accused Brandis of misleading parliament in making this claim.</p>
<p>Gleeson also says that before the direction was issued he had instituted a process in which he would tell the attorney-general of requests and provide him with a copy of his advice – the only exception being when a prime minister or governor-general asked for confidentiality.</p>
<p>The ins and outs of the affair are byzantine, detailed at great lengths in submissions each has put to a Senate inquiry into what happened.</p>
<p>Standing back, it is possible to argue both ways on the “consultation” question, depending on how “consultation” is defined.</p>
<p>It is clear, however, that Brandis should have notified Gleeson about the direction ahead of issuing it, so he could express his opinion.</p>
<p>In understanding how things have come to this the motives of the protagonists are critical.</p>
<p>Brandis has been accused of a power grab, an attempt to nobble Gleeson. His response is that after Gleeson raised with him concerns about procedures, he decided to bring practice into accord with the letter of the law. He also argues he is acting as a processor of requests for advice, not a roadblock to them.</p>
<p>But Gleeson sees the move as contrary both to the law and past practice, and he is digging in to defend the independence of the solicitor-general’s office.</p>
<p>That Gleeson – a highly respected lawyer, who previously specialised in commercial law at the Sydney bar – has so dramatically escalated the dispute is remarkable in itself.</p>
<p>One dynamic in this battle may be turf warfare.</p>
<p>As solicitor-general, Gleeson is operating in a competitive jungle in providing legal advice. The Office of Constitutional Law, another and powerful source of constitutional advice, is located within the attorney-general’s department, and more routine advice comes from the Australian Government Solicitor (AGS), also within the department.</p>
<p>In his original letter to Brandis calling for procedures to be sorted out Gleeson, among other complaints, said he hadn’t been consulted on a proposal under consideration in relation to marriage equality. </p>
<p>“To date … I have not been asked to advise on the proposal. Instead, AGS has provided draft advice in the matter. I have raised this concern with your office and also with your department. I am told there may be a request for my advice at some unspecified point in the future.”</p>
<p><a href="http://www.smh.com.au/federal-politics/political-news/advice-on-samesex-marriage-plebiscite-intensified-row-between-george-brandis-and-top-adviser-20161006-grwiyz.html">Fairfax has reported</a> that on the marriage plebiscite Brandis sought advice from a previous solicitor-general, David Bennett, after rejecting advice from Gleeson.</p>
<p>The conflict can only become more politically charged in coming weeks. The Senate inquiry is due to report on November 8; it has a non-government majority and one would expect that Brandis will take a beating.</p>
<p>The Senate is likely to disallow his direction. Senator Nick Xenophon – who says of the imbroglio, “it’s not black and white, it’s a complex issue and both sides have arguments to be considered” – believes the direction “should be disallowed, because it is unnecessary”.</p>
<p>Disallowance would give Gleeson a win on the substance, though at a high price in terms of his relationship with the government.</p>
<p>Brandis on Thursday claimed that despite their differences “from a professional point of view” he and Gleeson “have never had a cross word”. Perhaps in recent times this is because they have not been actually talking to each other about their dispute; since the direction was tabled the war has being waged by paper – they haven’t spoken about the problem by phone or in person.</p>
<p>On the face of it, it is hard to see how the two can continue to operate together. But unless Gleeson – whose term doesn’t expire until 2018 – quits, or Brandis does decide to seek fresh fields, the Commonwealth’s first and second law officers will remain unhappily shackled to each other for some time yet.</p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The future of Attorney-General George Brandis was a topic of political gossip well before the fight between him and Solicitor-General Justin Gleeson exploded spectacularly this week.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.