FOI documents reveal Attorney General Brandis fudged the facts about “consultations” with the Solicitor General … The truth withheld from parliamentary statement tabled by the AG … The attorney’s inaccurate denials … Brandis taking control of the process by which the SG provides opinions on questions of law to ministers, departments and agencies … Senate inquiry into AG’s actions and the truthfulness of his statements
UNDER the Freedom of Information Act Justinian has secured a number of important documents from the Commonwealth Solicitor General Justin Gleeson SC. They indicate that Attorney General Brandis mislead parliament in claiming Gleeson was consulted about the changes in the way questions of law are to be referred to the solicitor general for advice.
In particular, there is no evidence Gleeson was consulted about amendments to the Legal Services Direction, which inserted a new provision requiring all ministers, including the prime minister, to obtain the permission of the AG before seeking advice from the SG.
The Opposition has said that this is a “sneaky” attack by Brandis on the independence of the solicitor general. The change took effect in May “under cover of the Federal Budget” and just before the election was called.
The Opposition, with the support of crossbenchers, has established a senate inquiry into Brandis’ actions and the changes to both the Legal Services Solicitor General Opinions Direction and to another document within the AG’s department called Guidance Note 11, which also deals with briefing the solicitor general.
The ALP also says it has sufficient support in the senate to move for the disallowance of the amended directions, made under the Judiciary Act.
There had been consultations and discussions over the Guidance Note, and Gleeson had put forward his own suggestions about revisions.
On May 4, 2016, Brandis wrote to Gleeson enclosing a final copy of the revised Note, “which has been prepared having regard, inter alia, to your suggestions”.
Out of the blue, and without discussion, the AG added:
“I have also issued an amendment to the Legal Services Directions 2005. The amendment will insert a new paragraph 10B and will take the form of the enclosed document.
Both the revised Guidance Note and the amended Legal Services Directions take effect immediately.”
As far as we can see from the FOI documents that have been released, this was the first Gleeson knew of the changes to the Legal Services Directions, which substantially amended the way he is allowed to go about his work as the government’s top independent legal adviser.
“Section 55ZF of the Judiciary Act 1903 empowers the attorney general to issue directions, which are to apply generally to Commonwealth legal work, or are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. As the Direction relates to the process for referring a question of law to the solicitor general, the attorney general has consulted the solicitor general.”
A spokesperson for Brandis also told The Australian Financial Review on July 16:
“The attorney general consulted the solicitor general about the procedure for briefing and taking advice from the solicitor general in person at a meeting on November 30, 2015 and also asked him to provide feedback in writing. That feedback was provided and considered.”
Both in his statement to the Financial Review and on Insiders, Brandis was eliding two different things. The consultations and feedback had taken place about the changes to the revised Guidance Note 11, but not in relation to the changes to the Legal Services Directions. The meeting on Nov 30 last year was all about revisions to the Guidance Note, not about the briefing directions instrument.
Gleeson in reasons provided to Justinian points out that the briefing direction issued by the AG, “is the first time the process for briefing the solicitor general has been placed on a legislative basis”.
“The direction binds the solicitor general as well as others. The direction is in a materially different form to the procedures in Guidance Note 11 as it was prior to May 4, 2016.”
It is also incorrect for Brandis to suggest that s.12(b) of the Law Offices Act has always required the solicitor general to be confined to giving opinions on matters approved by the AG.
It can only be nonsense for Brandis to paint this as regularising “the practice across government to ensure it was in conformity with Section 12(b) of the Law Officers Act“.
Guidance Note 11, before Brandis’ amendments, described how ministers, departments and agencies could obtain the solicitor general’s advice consistent with s.12(b).
The documents released under FOI suggest the meeting on November 30, 2015, had nothing to do with agencies not being aware of s.12(b), as Brandis told Fran Kelly. Rather it was about how to ensure that when the solicitor general advises on the validity of draft legislation he is also told about any further amendments and given an opportunity to revise his advice.
The attorney general, the AG’s department and the Australian Government Solicitor all opposed disclosure of the documents subject to our FOI request.
Brandis was not in a strong position to insist on secrecy because of the public statements he made about the content of the discussions.
Gleeson’s reasons for the release of some documents are a model of FOI decision-making and should be inwardly digested by the relevant people throughout the Commonwealth public service.
We’ve posted the emails between numerous law officers in the department, the AGS, the AG’s office and the SC and his office and, contrary to Brandis’ claim to parliament, nowhere is there a mention of discussions about legislative changes to the process for briefing the solicitor general.
This amendment arrived by surprise in the AG’s letter of May 4.
The senate inquiry is going to have a lot of fun. One profitable line of inquiry might concern the advice the attorney general proffered to the governor general last March about the proroguing of parliament, who authored that advice and whether it was constitutionally sound.
AG’s Letter of May 4, 2016 with new legal services direction
Solicitor General’s meeting notes – legal issues meeting
Guidance Note 11 pre-May 4, 2016
Guidance Note 11 post-May 4, 2016