Former solicitor-general Gavan Griffith has excoriated Attorney-General George Brandis’ binding direction that all requests to the solicitor-general for legal advice must go through him, declaring it raises “the image of a dog on a lead”.
Griffith says he regards the content and intent of the direction “as effecting the practical destruction of [the] independent office of second law officer within the Australian constitutional context”.
Brandis and Solicitor-General Justin Gleeson are at loggerheads over the direction, tabled in May, and especially about whether there was consultation before it was issued. Both will appear on Friday before a Senate inquiry into the affair.
The Griffith attack, in a submission to the inquiry, is very damaging for Brandis, coming from a man who held the solicitor-general office for 14 years from 1984 to 1997 under Labor and Liberal governments and six attorneys-general.
Griffith says the direction is predicated on a mistaken construction of the law, and is “void and of no legal effect”.
Referring to its impact on the standing of the solicitor-general’s office, Griffith says: “No doubt, that for future appointments ‘a’ counsel will be found to accept a shacked office, but at a reduced level of competence and performance, from counsel unlikely and unprepared to say no to those who call for partial rather than dispassionate impartial advice.
"It is not so much paying peanuts and getting monkeys, as the salary has never been an inducement. However, the result will be the demeaning of the office to the equivalent of attracting monkeys.”
Griffith says recent controversial issues show where “even at ministerial level ‘dodgy advice’ may be sought for short-term political advantage. The strength of the office of SG is to provide the integrity of disinterested advice to the service of the body politic”.
Gleeson in a letter to Brandis last year complained his advice had not been sought on a proposal related to marriage equality while the Australian Government Solicitor had provided draft advice.
And it has been reported that on the marriage plebiscite Brandis sought advice from a previous solicitor-general, David Bennett, after rejecting advice from Gleeson.
Griffith says: “A government of integrity should not shirk from obtaining disinterested peak advice of integrity from its SG. It should not shop around, or even refrain from obtaining the second law officer’s advice on matters where it suspects the advice may be contra the government’s preferences.”
When he was solicitor-general, requests for advice were not filtered through the attorney-general or his office, he says.
The explicit terms of the Brandis direction “signal more than the unfortunate breakdown in personal working relationships between the first and second law officer”.
Griffith says that apart from being practically unworkable the direction, “to establish a gateway through the AG’s political office to all opinion work”, would convert the solicitor-general’s office “into one of ‘closet counsel’ within the AG’s political office, to be released for non-curial advising on the unreviewable whim of the incumbent AG”.
He says that in the current circumstances where there is a breakdown in the working relationship, “such differences should not be resolved during their continued incumbency by inappropriate and destructive legislative or administrative measures being imposed which have the effect of destroying the independent office of SG”.
Answering a question in parliament, Prime Minister Malcolm Turnbull said both Brandis and Gleeson had his confidence.
Both were “distinguished barristers”, he said. He had had the benefit of the legal advice of both at different times “and I have confidence in each of their legal capacity and ability and we are very fortunate to have the benefit of their advice”.