Tony Mason, Bob Ellicott, Gavan Griffith, David Bennett and Stephen Gageler shoot the breeze with Assoc Prof Gabrielle Appleby … Life in the solicitor general lane … Coping with mad attorneys general … Odds on favourites to replace Justin Gleeson  

IT was a packed Banco at the old Spigeltent last night. The stage was set with academics and old solicitors general who wanted to tell war stories. The audience was littered with eminences like Spiggy Spigelman himself, Justice V. Bell from the High, other federal and appeal court judges, and clumps from the Sydney Grill and Oyster Bar.  

Ostensibly it was a celebration of the 100th anniversary of the office of the SG, but the elephant in the tent was Justin Gleeson’s resignation and his battle with the attorney general George Brandis. 

The crowd was hoping for red meat, instead it got devils on horseback. What did emerge is that three of the assembled solicitors said that the attorney general was wrong about his interpretation of the role of the SG under the Law Officers Act.  

That’s Sir A. Mason, R. Ellicott and G. Griffith – all saying that section 12 of the Act did not mean what Brandis wants it to mean. D. Bennett did not address this directly and Justice Gageler said he didn’t want to go near the current controversy.  

Anthony Mason kicked off by saying s.12(b) of the LOA cannot mean that a referral from the attorney general is an essential precondition of the solicitor general’s advice, adding: 

“It is a big stretch to say the attorney general has to say ‘yes’ or ‘no’ to the prime minister’s request for advice.”  

During his time as SG (1964-1969) there was no issue of the attorney insisting he get approval prior to providing advice.  

“A discussion with Snedden was by no means memorable.”  

Snedden insisted that if “life” in a criminal conviction meant 25 years, it should mean the same for High Court judges. Mason advised him that this would not be “an attractive argument for the High Court”.  

The opportunity never arose to argue this novel point. Instead s.72 of the Constitution was changed by referendum, setting the age limit for federal judges at 70.    

Bob Ellicott had served as both solicitor general and attorney general. He was solicitor general between 1969 and 1973, with Tom Hughes, Nigel Bowen, Ivor Greenwood, Gough Whitlam and Lionel Murphy as attorneys.

Ellicott said he interprets the Law Officers Act “in largely the same way as Sir Anthony”.  

He told the Banco gathering that he had difficulties with Lionel Murphy as attorney, but he didn’t enter into confrontation with him. “Unless there’s trust and confidence between the AG and the SG, it’s no good.”  

Ellicott said he was friendly with Whitlam and from time to time had lunch with him at The Lodge. 

At the French nuclear tests case in the ICJ, Murphy told Ellicott to take off his wig. The solicitor general replied to the effect that was not really the attorney’s call. Murphy went wigless, Ellicott stayed wigged.  

The former member for Wentworth and Malcolm Fraser’s attorney general added that the position of SG “is really marvellous” – the most interesting work, the best cases, all at the pinnacle of government. 

Bow-tied Gavan Griffith (SG, 1984-1998) said he also agreed with Mason’s view of s.12 of the Law Officers Act. Contrary to Brandis, the law does not mean that Gleeson’s functions as counsel for eight manifestations of the Commonwealth in s.12(a) is subject to prior written permission by the AG.  

Griffith’s feisty “dog on a lead” submission to the senate legal and constitutional affairs reference committee can be read here. 

“Some attorneys general would need a seeing eye dog to find their way to the High Court.”  

It’s unclear whether this is a reference to Brandis, whose name registers a nil response in an Austlii search of High Court appearances.  

He added: 

“The prime minister is the government and is entitled to come to the solicitor general as of right.”   

David (Bubba) Bennett, who was solicitor general under Rowdy Williams, Fabulous Phil Ruddock and Potato Head McClelland, said he remembered a protocol whereby the SG had to inform the attorney general’s department about requests for advice.  

He was told by a High Court judge when he accepted the appointment as SG that he had to learn to say, “No, Minister”.  

On the other hand he had to say more frequently, “But, of course, first assistant secretary”. It was a job that entailed handling both the AG and the department.  

He rounded-off saying that John Coke, England’s first solicitor general, prosecuted King Charles 1 and during the restoration was convicted of regicide and hung, drawn and quartered.  

Stephen Gageler was solicitor general from 2008-2012 when McClelland and Nicola Roxon were attorneys. He had also been an assistant to Gavin Griffith in 1998. He said that in the years between 1998 and 2008 the role of the solicitor general had changed significantly. 

The change was brought about because the attorney general’s department effectively had become the department of homeland security. 

Gageler introduced a protocol to ensure that the SG’s advice should be confined to the Commonwealth’s most important legal issues.  

Pause. “A hyphen.” (Muted guffaws.)  

In a late development, Justin Gleeson told the senate committee that Brigadier Senator Linda Reynolds (Lib. WA) could shove her ridiculous 120 questions on notice.  

“The questions appeared designed to further an attack, both on me personally and on the office of the solicitor general, unrelated to the subject matter of the inquiry … The number of questions (in excess of 120) makes the task of seeking to answer them impractical and unreasonable in the light of my other commitments in the next two weeks.”  

Here are Sen Reynolds irrelevant questions.  

And here is the senate committee’s reply to Gleeson.