tag:theconversation.com,2011:/us/topics/attorney-general-32005/articlesAttorney-General – The Conversation2023-11-21T03:26:45Ztag:theconversation.com,2011:article/2182342023-11-21T03:26:45Z2023-11-21T03:26:45ZAustralia’s secrecy laws include 875 offences. Reforms are welcome, but don’t go far enough for press freedom<p>In 2019, the <a href="https://www.nytimes.com/2019/06/05/world/australia/journalist-raids.html">New York Times</a> declared that “Australia may well be the world’s most secretive democracy”. </p>
<p>The Times published the piece shortly after the Australian Federal Police raided journalists from <a href="https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal-police-afghan-files-stories/11181162">two news organisations</a>, searching for evidence of sources for stories that were embarrassing to the government. </p>
<p>Four years on, Attorney-General Mark Dreyfus today released a comprehensive <a href="https://www.ag.gov.au/crime/publications/review-secrecy-provisions">review of secrecy laws</a> that acknowledges a woefully complicated mess. </p>
<p>The government’s plan to clean it up is a good first step, but it’s just the tip of a very big iceberg.</p>
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Read more:
<a href="https://theconversation.com/journalists-must-be-protected-in-police-investigations-heres-our-five-point-plan-for-reform-193102">Journalists must be protected in police investigations. Here's our five point plan for reform</a>
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<h2>Progress on much-needed change</h2>
<p>To make its case in 2019, The Times pointed to a bewildering array of legal and political obstacles embedded in Australian law that stand in the way of the transparency considered essential to a fully functioning democracy. </p>
<p>In principle, the government seems to agree. </p>
<p>The review points to 875 secrecy offences covering everything from national security to tax laws, and a dysfunctioning system for protecting whistleblowers. </p>
<p>It also recognises the chilling effect on the ability of journalists to work with sources from inside government, and hold it to account. </p>
<p>To fix the problem, the report comes up with 11 recommendations, including reducing the number of offences to a more manageable (but still excessive) 707. </p>
<p>It establishes a set of guiding principles that will help consolidate the law and make it more consistent. </p>
<p>And it says there should be a narrower range of information defined as “secret”, with clear harm to the public interest in any breach of secrecy before a prosecution can take place. </p>
<p>It also calls for specific defences for public-interest journalism to be inserted into key secrecy laws.</p>
<p>All this is laudable, and it starts to untie the Gordian Knot of legislation that created the culture of secrecy the Times was concerned about, but it is simply not enough. </p>
<h2>A patchwork quilt of laws</h2>
<p>The enormous number of secrecy offences currently on the books points to the central problem. Whenever lawmakers have spotted a hole in the law, they’ve stuck a patch over it. </p>
<p>That is understandable, particularly in a post-September 11 world when national security has become the overriding concern of governments everywhere. </p>
<p>But it has created a confusing, inconsistent and incoherent mess that the attorney-general appears to be trying to fix with yet more patches. </p>
<p>To be fair, some of them are larger and more coherent than the current ones, but it is still insufficient to deal with the fundamental problem. The Australian government remains dangerously secretive.</p>
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Read more:
<a href="https://theconversation.com/its-time-for-the-government-to-walk-the-talk-on-media-freedom-in-australia-161342">It’s time for the government to walk the talk on media freedom in Australia</a>
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<p>Another of the recommendations is a general secrecy offence that says Commonwealth officers can’t can’t disclose anything that would be “prejudicial to the effective working of government”. </p>
<p>A general secrecy offence helps simplify things, but the threshold is worryingly sweeping and runs counter to a recommendation the Australian Law Reform Commission made back in a <a href="https://www.alrc.gov.au/publication/secrecy-laws-and-open-government-in-australia-alrc-report-112/">2010 report</a> that triggered the review in the first place. </p>
<h2>Dangerous plan for journalism</h2>
<p>The report also makes much of the need to protect public-interest journalism. </p>
<p>Again, it is laudable that the attorney-general recognises the threats to media freedom embedded in the law, and said he’s prepared to tackle them. </p>
<p>But the answers in the report are more of the same: a set of band aids, rather than a comprehensive cure.</p>
<p>Controversially, that includes a commitment to maintain a ministerial directive from the former Attorney-General Christian Porter. </p>
<p>Porter issued his directive in the wake of the 2019 raids, in an attempt to underline the government’s commitment to press freedom. The directive declared that the director of public prosecutions had to seek the attorney-general’s approval before prosecuting a journalist. </p>
<p>One of the fundamental principles of our democracy is a <a href="https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/separation-of-powers-parliament-executive-and-judiciary/#:%7E:text=In%20Australia%2C%20the%20power%20to,group%20having%20all%20the%20power.">clear separation</a> between the political and legal systems. </p>
<p>Yet the directive clearly crosses that line. </p>
<p>As we saw with the <a href="https://www.abc.net.au/news/2021-03-08/christian-porter-accuser-four-corners/13226794">allegations of sexual assault</a> levelled at Porter, and subsequent <a href="https://www.theguardian.com/australia-news/2021/mar/16/christian-porter-v-abc-can-the-minister-sue-for-defamation-over-article-that-didnt-name-him">legal action</a> against the ABC, the attorney-general is as vulnerable to journalistic investigation as anyone else. Giving him the last word about whether or not to prosecute a journalist is a dangerous, if well-intentioned, step. </p>
<h2>Time for a whole new approach</h2>
<p>The report also declines to reverse the burden of proof when it comes to publishing government secrets in the public interest. </p>
<p>A number of media organisations (including the Alliance for Journalists’ Freedom that I work for) have argued there should be a <a href="https://www.aph.gov.au/DocumentStore.ashx?id=ab18c655-f6f8-4e0f-a6cb-b0b40d5a68fc&subId=668253">presumption in favour of publishing</a>, unless the investigators can show a clear harm to the public interest. </p>
<p>In other words, they should have to prove the harm in publishing rather than forcing journalists to show the value in their story. The report released today rejected that idea.</p>
<p>At least when it comes to media freedom, the Alliance for Journalists’ Freedom has a far simpler and more comprehensive solution. </p>
<p>Rather than patches, we are proposing a <a href="https://www.journalistsfreedom.com/major-projects/media-freedom-act/">Media Freedom Act</a> that would establish a set of overarching principles in law. </p>
<p>First, it would compel parliament to always consider media freedom when passing new legislation. </p>
<p>And second, the courts would be obliged to interpret existing laws, like secrecy and espionage laws, in ways that are consistent with media freedom. </p>
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Read more:
<a href="https://theconversation.com/australia-needs-a-media-freedom-act-heres-how-it-could-work-125315">Australia needs a Media Freedom Act. Here's how it could work</a>
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<p>That would include a presumption in favour of protecting a journalist’s sources and in publishing. The police would have to show why the public interest in an investigation is more important than the public interest in the story itself.</p>
<p>That law alone wouldn’t be enough to solve all the problems - there would need to be a lot of amendments to make it work effectively - but it elegantly creates a set of principles and frameworks that protect the underlying objective: to create the kind of transparency necessary for a healthy democracy, without putting national security at risk.</p><img src="https://counter.theconversation.com/content/218234/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Greste is a professor of journalism at Macquarie University, and the Executive Director of the not-for-profit advocacy group, the Alliance for Journalists' Freedom. </span></em></p>Today, the government released a review into Australia’s patchwork of a secrecy law system. The proposed changes are a step in the right direction, but there’s so much more work to do.Peter Greste, Professor of Journalism and Communications, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1915782022-09-29T03:20:20Z2022-09-29T03:20:20ZPolitics with Michelle Grattan: Attorney-General Mark Dreyfus on the National Anti-Corruption Commission<p>The government has introduced its legislation for the National Anti-Corruption Commission, which has received the endorsement of opposition leader Peter Dutton and so is assured of passage through parliament. </p>
<p>But critics are unhappy that its public hearings will be limited to when there are “exceptional circumstances”. Attorney-General Mark Dreyfus in this podcast strongly rejects the argument this is too high a hurdle. </p>
<p>The government has yet to nominate a head of the powerful new body, and Dreyfus says it is open to suggestions. Asked if he has anyone particularly in mind he says, “No I do not. […] We’re going to be trying to find someone who’s eminent, who has a real standing in the community.” </p>
<p>On the question of so-called “grey corruption”, notably misuse of ministerial discretion in grants schemes, Dreyfus stresses it will be completely up to the commission to decide what might justify investigation. </p>
<p>“We’ve included in this bill a broad definition of corrupt conduct. It goes to breach of public trust, abuse of someone’s office as a public official, misuse of information acquired in the person’s capacity as a public official, but leaves open to the commission to find other forms of conduct are corrupt.” </p>
<p>The anti-corruption legislation contains protection for whistleblowers but Dreyfus has yet to unveil an overhaul of the existing more general legislation on whitleblowers. </p>
<p>He says he has “a long-standing commitment to protection of whistleblowers”. </p>
<p>“I brought the Public Interest Disclosure Act 2013 to the parliament […] when I was last attorney-general. I was conscious then that we might not have got the scheme completely right, and provided for a statutory review to take place.” He will look at the recommendations of that review, which reported in 2016, and update it “with a view to strengthening the protection” for whistleblowers.</p><img src="https://counter.theconversation.com/content/191578/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>Attorney-General Mark Dreyfus chats with Michelle Grattan about the National Anti-Corruption Commission, who will head it, and protections for whistleblowers.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/974542018-05-31T04:56:56Z2018-05-31T04:56:56ZA new family ‘super court’ may not save time or result in better judgments<figure><img src="https://images.theconversation.com/files/221114/original/file-20180531-69511-19g7t3e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The nation's family law system has long been in need of reform and greater resources.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Attorney-General Christian Porter <a href="http://www.abc.net.au/news/2018-05-30/sweeping-changes-to-family-court-as-broader-review-continues/9813434">has just announced the proposed merger</a> of the Family Court of Australia (FCA) and the Federal Circuit Court (FCC) to create a new “super court” with a mouthful of a name: the Federal Circuit and Family Court of Australia (FCFCA). </p>
<p>Porter says the merger, expected in January 2019, <a href="https://www.attorneygeneral.gov.au/Media/Documents/Court-reforms.pdf">will address</a> costly delays and inefficiencies, and reduce confusion experienced by families in the family law system. </p>
<p>But it’s unclear just how the changes will succeed in <a href="https://www.attorneygeneral.gov.au/Media/Pages/Court-Reforms-to-help-families-save-time-and-costs-in-family-law-disputes.aspx">helping families save time and money</a>. </p>
<p>A key concern is that prioritising possible gains in efficiency and cost reduction could have unintended consequences for families caught in the system. Most families that require judicial hearings have a range of complex needs. There are often problems involving family violence, child sexual abuse, alcohol issues, mental health concerns, and questions of parenting capacity. These families require a specialist response – not necessarily a fast-track through the system. </p>
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Read more:
<a href="https://theconversation.com/in-the-family-court-children-say-they-want-the-process-explained-and-their-views-heard-its-time-we-listened-93919">In the Family Court, children say they want the process explained and their views heard. It's time we listened</a>
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<p>It also seems strange that the government would announce this proposal while the Australian Law Reform Commission (ALRC) is still conducting <a href="https://www.alrc.gov.au/inquiries/family-law-system">the first comprehensive review</a> of the family law system since the Family Law Act was passed in 1975.</p>
<p>This review is due to be completed in March 2019 and the structure of the court will no doubt be a fundamental part of its recommendations.</p>
<h2>The proposed court merger</h2>
<p>Family law matters are currently dealt with in two separate courts. The FCA deals with more complex cases, such as those involving allegations of family violence and child sexual abuse. The FCC, meanwhile, deals with less complex cases. </p>
<p>The merger, which is still subject to the passage of legislation, will create a new court, the FCFCA, with two divisions. One division will focus solely on family law and involve existing judges from the FCA. The other will deal with both family law and general federal law matters and involve judges from the FCC. </p>
<p>The new FCCFCA is intended to streamline the process. It will create a single point of entry for people who have a family law dispute, with one set of forms, rules and processes. The new court will also be presided over by a single chief justice who covers both divisions.</p>
<p>The proposal also removes the appellate division of the FFC (the Full Court) and replaces it with a new Family Law Appeal Division (FLAD) in the Federal Court of Australia.</p>
<h2>Problems in the current system</h2>
<p>Without question, there are problems with the current family law system. The FCC, for starters, is not a specialist family law court, but the bulk of its caseload (approximately 90%) is in family law. This means that judges who are <a href="https://www.theaustralian.com.au/business/legal-affairs/coalitions-appointments-and-attitude-putting-family-law-in-crisis/news-story/eb3df6efa3d3fadb16382968dbc0458a">not necessarily specialists</a> in family law are dealing largely with family law matters. </p>
<p>The court began as the Federal Magistrates Court in 2000, with the goal of hearing less complex family law matters and providing a faster avenue for litigants. Renamed the Federal Circuit Court in 2013, the FCC <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2016-17/2016-17-annual-report-part3">now deals with 87% of family law matters</a> in Australia overall, while the FCA hears just 13% of cases. </p>
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Read more:
<a href="https://theconversation.com/merging-federal-courts-administration-wont-improve-services-for-those-who-need-it-49944">Merging federal courts’ administration won't improve services for those who need it</a>
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<p>Many family law experts, <a href="http://www.familycourt.wa.gov.au/_files/Publications_Reports/Thackray-Farewell-23-Mar-2018.pdf">including judges</a>, have long highlighted the confusion created by having two different courts with different rules, forms and processes. The change back to a single point of entry into the family law system is welcome. However, it is disappointing the new court appears to be merely an expansion of the generalist FCC at the cost of destroying the more specialist FCA.</p>
<p>It is important to remember that when the Federal Magistrates Court was first proposed in 1999, the chief justice of the FCA, Alastair Nicholson, <a href="http://www.familycourt.gov.au/wps/wcm/connect/921350b5-114d-4c89-82c8-a4d3d7a33b6c/nclcc.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE-921350b5-114d-4c89-82c8-a4d3d7a33b6c-lh-dde1">raised concerns</a> about the same issues the government now seeks to solve: </p>
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<p>The fragmentation of the FCA’s closely integrated system will result in a less satisfactory and more expensive service. The potential for public confusion, forum shopping and waste of resources on shuffling matters between courts is high. The funds proposed to be spent on the Federal Magistrates Court could be used far more effectively by providing magistrates within the framework of the Family Court of Australia. </p>
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<h2>Concerns with the current proposal</h2>
<p>While the full details of the proposed merger are still unclear, the information available raises a number of concerns:</p>
<p><strong>-The pressing need for more resources.</strong> The attorney-general maintains the reforms will improve the efficiency of the family law system by a third. It is hard to see how. Any increase in efficiency is welcome, but there is still a need to address real resource issues rather than assuming a courts merger will automatically lead to a reduction in the delays and backlog of cases. </p>
<p>Indeed, when the new “super court” starts operations in January 2019, there will be the same backlog and same overall number of judges and court staff. </p>
<p><strong>-The potential loss of specialisation.</strong> The FCA is a specialist court dedicated to complex family matters. One of the requirements for appointment to this court is that a judge must have the expertise to be considered a “suitable person to deal with matters of family law”. </p>
<p>However, this is not a requirement for judges sitting in the FCC. </p>
<p>The attorney-general has said there would <a href="https://www.theaustralian.com.au/business/legal-affairs/dont-axe-family-court-exchief-justice/news-story/a915ff428df0725b0e5156ecdc8cf334">not be a requirement</a> that judges appointed to the family law division of the “super court” have specific family law experience and that current Family Court judges will not be replaced as they retire. </p>
<p>This is of particular concern in the context of the proposed new appeal division of the Federal Court. Over time, judges on the appeal court who have no family law experience could be presiding over appeals from trial judges who also have no family law experience. </p>
<p>It has been suggested that the current Full Court judges <a href="https://www.theaustralian.com.au/business/legal-affairs/family-court-judges-plan-legal-challenge-to-government-shakeup/news-story/6db3c11a5d3d952f01158f263d73b346">may bring a constitutional challenge</a> to the proposal to scrap the Full Court, but it’s not clear yet whether this would be possible. It’s also unclear how their vast institutional and legal knowledge will be used within the new structure. </p>
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Read more:
<a href="https://theconversation.com/first-act-of-the-family-law-review-should-be-using-research-we-already-have-84909">First act of the family law review should be using research we already have</a>
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<p><strong>-Speedy resolution does not necessarily mean better decisions.</strong> While we agree there is an urgent need to address delays in the family law system, this must not come at the expense of appropriate and safe decisions. </p>
<p>This is a particular concern in complex cases that involve allegations of family violence and/or child sexual assault.</p>
<p><strong>-Lack of consultation.</strong> Changes to the family law system are frequent and continuous, but they are generally preceded by some level of consultation with the legal community, as well as others in the broader community. There appears to have been little, if any, <a href="https://www.theguardian.com/australia-news/2018/may/30/did-coalition-do-family-court-deal-with-hanson-asks-womens-legal-services">consultation on this proposal</a>. </p>
<p>There are a number of problems with the current family law system in Australia. Delays, costs and inefficiencies do need to be addressed. At the same time, any proposal to deal with these problems needs to acknowledge the complexity of the families the courts deal with. This necessitates a court of specialisation – not one whose functions include other federal matters, or whose judges are not required to have expertise in family law matters.</p>
<p>Working out how to respond to the problems within the family law system requires a careful, detailed and consultative process. This is currently being undertaken by the ALRC. The government commissioned this review and should wait for the outcome and recommendations before making any changes to our Family Court system.</p><img src="https://counter.theconversation.com/content/97454/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Miranda Kaye and Jane Wangmann receive funding from ANROWS for a project entitled "Exploring the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence".</span></em></p><p class="fine-print"><em><span>Jane Wangmann and Miranda Kaye receive funding from ANROWS for a project entitled "Exploring the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence".
Jane Wangmann is a member of the NSW Domestic Violence Death Review Team.</span></em></p>The proposed merger of the Family Court and Federal Circuit Court is intended to address delays and inefficiencies in the system. Experts question, however, how effective the reforms will be.Miranda Kaye, Senior Lecturer, Faculty of Law, University of Technology SydneyJane Wangmann, Senior Lecturer, Faculty of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/684652016-11-11T02:45:45Z2016-11-11T02:45:45ZJanet Reno: Reflecting on America’s first female attorney general and her example of public service<p>Some of today’s politicians seem to equate leadership with shouting, arrogance, cruelty and deception. Janet Reno, the first female U.S. attorney general and the second longest serving attorney general in history, was so honest she scared some politicians.</p>
<p>They called her blunt. They said sometimes she was not a team player. But she was playing the game by the rules her family gave her: “Tell the truth and don’t cheat.” </p>
<p>That’s the credo Janet Reno grew up with in her home on the edge of Florida’s Everglades. And that’s probably why <a href="https://www.whitehouse.gov/the-press-office/2016/11/07/statement-passing-janet-reno">President Obama said</a> that Washington had never seen anyone like her. </p>
<p>I want my daughters, and every aspiring political leader, to know her story. Janet Reno was a different kind of public servant. She was tough, smart and humble.</p>
<h2>Sturdy foundation</h2>
<p>Reno and I were in public service at overlapping times, and I got to know her over the course of more than 30 years. She was in the state attorney’s office; I was in the legislature. When I was writing <a href="https://global.oup.com/academic/product/privacy-9780195367355?cc=us&lang=en&">a book about privacy</a> a few years, ago she reviewed it and wrote a helpful blurb for the book.</p>
<p>At Coral Gables High she was voted the smartest kid in her class. She was a tall young woman with a brilliant mind and an independent spirit. That independent spirit was learned from her parents, who were reporters for two different newspapers. </p>
<p>She grew up in the house her mother built. It was close enough to the Everglades that she and her three siblings learned how to coax alligators to sleep by rubbing their bellies – but only the small ones. Save for a single windswept shingle, the Reno home was strong enough to withstand Hurricane Andrew. Likewise, Janet’s moral foundation was strong enough to withstand the winds of controversy and competition in Washington D.C.</p>
<p>When she first came to Washington in 1992, Bill Clinton’s two previous picks for attorney general had withdrawn their nominations over controversies with their nannies and housekeepers. That was no problem for Janet – the humble Reno home had never had a maid or nanny.</p>
<p>Over her eight years as attorney general there were great victories for law enforcement, such as the arrest and conviction of the <a href="https://oklahomacitynationalmemorial.org/janet-reno/">Oklahoma City bomber</a> in 1995 and <a href="http://articles.latimes.com/1996-06-19/news/mn-16496_1_kaczynski-indicted/2">the Unabomber</a> in 1996. There was also the <a href="http://www.pbs.org/wgbh/pages/frontline/waco/timeline.html">Waco standoff</a> – the federal government’s encounter with the Branch Davidians that resulted in close to 80 deaths after a 51-day stalemate. Some called it a <a href="http://www.washingtonpost.com/wp-srv/national/daily/sept99/waco09.htm">disaster</a>. Janet took responsibility for her controversial judgment call. The buck stopped with her.</p>
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<figcaption><span class="caption">U.S. Attorney General Janet Reno defending her role in the Waco siege.</span></figcaption>
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<p>Reno then faced the dilemma of <a href="http://articles.latimes.com/2000/apr/08/news/mn-17351">the young boy</a> who had been ordered returned to his father in Cuba. After difficult negotiations, she authorized federal agents to seize young Elian Gonzalez so he could be returned to his father. The picture of an armed federal agent and the boy was front page news. She never wavered that the right thing was to return the child to his parent.</p>
<p>She embraced public service throughout her career, but in my opinion she was an entirely different kind of public person than the image of a politician today. Political consultants never persuaded her to give long, misleading answers to hard questions. She left Washington in 2002 with her integrity intact and a reputation as a uniquely honest and candid individual.</p>
<p>Upon her return to Florida, she was persuaded to run for governor. She set off in her Ford pickup truck to persuade Florida to elect the first female governor. In 2002 she pulled that truck into my driveway for a campaign event my wife and I hosted in her honor at our home. I have held and been to many political events, but this one was different. She was genuine and kind to everyone. </p>
<p>There was no shading of answers to meet the expectation of pollsters or financial supporters. There were no spin doctors. She did not have droves of aides and advance people. She had an honest and well-fought campaign, but ultimately lost that Democratic primary election,and Jeb Bush was reelected.</p>
<p>After the election, Janet moved back to the same home where she grew up. She was back with her family kayaking with her sister Maggie. But she never lost her commitment to public service and justice. She <a href="http://www.innocenceproject.org/memoriam-honorable-janet-reno/">became active</a> with the Innocence Project, using her perspective as a prosecutor to search for the truth about wrongful convictions.</p>
<h2>A model public servant</h2>
<p>In 2003 and 2005 she came to the University of Florida to speak with our students. On one of those trips she sat around a table with a group young law students to lead an honest discussion about integrity in the legal profession. She talked about the importance of knowing the facts and the truth as a lawyer seeking justice. In public service she could be no different than who she always was.</p>
<p>Honesty was not a challenge, it was part of her DNA. </p>
<p>The 2016 election has been traumatic and disturbing. At this moment, it is important to remember public servants include people like Janet Reno.</p>
<p>She was a humble and determined pioneer who never stopped honoring the truth. She lived the same values her entire life. At this time in America, we need to demand those high standards from our leaders and pass them on to our children. “Tell the truth and don’t cheat.”</p><img src="https://counter.theconversation.com/content/68465/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon L. Mills does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>At a time when politicians are struggling to gain the public’s trust, Janet Reno’s legacy as an honest, humble public servant may serve as an example moving forward from the election.Jon L. Mills, Professor of Law, University of FloridaLicensed 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/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.