Quite clear that attorney general George Brandis misled the parliament … Consultations about quite different matters … Meaning of the word “counsel” … Meaning of the Law Officers Act … Out-of-context and twisted selection of parts of a letter from the solicitor general … Brandis’ dishonesty   

THERE is no doubt that George Brandis has consciously misled parliament and that consequently he should be dismissed as attorney general. 

At the moment the attorney general is busily kicking sand in the eyes of the senate committee investigating the nature and scope of consultations prior to making a legal services direction restricting the duties and independence of solicitor general Justin Gleeson.   

Some of the sand has fallen into the eyes of media retiles, particularly The Australian’s legal affairs scribbler, Meretricious Merritt who, in a comment piece even more bizarre than his usual standard, thinks that Brandis will continue to be trusted, but Gleeson won’t.     

The evidence says otherwise.  

Gleeson’s position is that he was not consulted about the binding legal services direction made by Brandis, which now requires requests for the solicitor general’s legal advice from departments, agencies and ministers to be filtered through the AG. 

Brandis says that Gleeson was fully consulted about the legal services direction or, alternatively, he was consulted enough.  

The two versions hinge around a request in a letter dated November 12, 2015 from Gleeson seeking a meeting with the AG; a meeting between the AG, the SG and other officers on November 30, 2015; and interpretations of the Legal Officers Act, which governs the solicitor generals functions and independence. 

The November 12 letter reflected Gleeson’s concern that he was not afforded an opportunity to advise on later drafts of legislation, following his advice on earlier versions. He was also concerned that the government on occasions suggested publicly that the SG claimed amended Bills were constitutionally sound, when they were not – specifically this arose with the legislation to revoke a person’s Australian citizenship.  

He also thought there should be better coordination of his advice. The example he gave was that the current government was unaware of an earlier advice he gave about the “private” nature of correspondence between former GG Sir John Kerr and The Queen.  

Those concerns were discussed at the meeting of November 30, with the outcome that the departmental Guidance Note should be amended to reflect what was agreed.  

At no point during the meeting did the attorney indicate he was considering issuing a legally binding directive that Commonwealth ministers, departments and agencies had to first go through the AG to get to the SG for advice on questions of law.  

The notes of the meeting taken by two members of Brandis’ staff do not reflect any discussion of a binding directive of this nature. [See Brandis’ senate submission below for notes.]  

This gets us to the Law Officers Act, s.12. Gleeson’s view is that the s.12 provides for two main requirements. 

Section 12(a) says the solicitor general should act as “counsel” for a range of people and bodies. The solicitor says in this sense “counsel” is not confined to acting in litigation, and providing advice to Commonwealth litigants, but also advising ministers, departments and agencies on questions of law in the normal course.  

Section 12(b) covers those cases where the attorney general seeks the advice of the SG, which may then stand as the opinion of the attorney. 

“It is not to be implied from this qualification [in s.12(b)] that the solicitor general cannot furnish an opinion to the Commonwealth or its emanations without a request from the attorney general. As solicitor general I was instructed by the crown solicitor and the attorney general’s department to advice departments and other Commonwealth agencies without any express approval by the attorney general being communicated to me.”  

As it happens, Gleeson had already put in place a system whereby the attorney was told about requests for advice received by the SG, except in cases where the prime minister and the governor general had requested confidentiality. 

Brandis has turned this backwards and says that s.12(b) empowers him to be the gateway for all Commonwealth ministers, departments and agencies seeking the solicitor’s advice and that “counsel” is pretty much confined in s.12(a) to acting in litigation.  

The attorney claims that the legal services direction is merely a reflection of what Gleeson wanted in his letter of November 12 and what emerged from the meeting of November 30. You can only get to that position by a dishonest and out-of-context distotion of Gleeson’s letter, because the notes show the meeting itself did not discuss the idea of a binding directive.  

What Brandis has done is to say that a departmental Guidance Note was discussed, and that he came up with the enforceable directive simply to give effect to the Note. Because he had consulted on the Note, he then makes a massive leap to claim that he had therefore also consulted on the contents of a completely different legal services directive.  

In fact, the Note that did emerge is also materially different from the one put forward by Gleeson in March last year. 

Brandis’s absurdly dishonest submission to the senate committee clearly suggests that in forcibly restricting the solicitor’s functions and independence he is merely doing what Gleeson wants.  

The legal services direction is now the subject of a motion for disallowance. 

Brandis on the stump, here and here 

Solicitor General Gleeson’s submission to the senate committee   

Attorney General Brandis’ submission to the senate committee