News National Brandis appears before Senate committee as feud ramps up

Brandis appears before Senate committee as feud ramps up

Attorney-General George Brandis appears before a Senate inquiry at Parliament House in Canberra.
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Neither Attorney-General George Brandis QC nor Solicitor-General Justin Gleeson SC were willing to give ground as their public feud ramped up a gear before a Senate committee on Friday.

A Senate inquiry was launched after concerns the Attorney-General was trying to restrict access to the Solicitor-General’s legal advice.

The Solicitor-General acts as counsel for the Commonwealth in any legal disputes and also provides legal opinions and advice to government and the public service.

Senator Brandis issued a direction in May this year forcing all requests for Mr Gleeson’s expertise come through his office first — a matter Mr Gleeson said he was not consulted on other than the idea being raised in one meeting in November.

He has demanded the direction be thrown out.

Mr Gleeson gave evidence, including a number of fiery stoushes with Liberal senators on the committee, firstly emphasising that it was “essential” his role remained independent.

He said he was “shocked” by the direction and had written to the Attorney-General a number of times asking him to withdraw it.

“The change is one which is making the functioning of my office exceptionally difficult,” Mr Gleeson said.

“Do I lie awake at night worrying about it? I have, every night since the fifth of May.”

Senator Brandis has maintained the direction is a formality, and there had been a “lazy” practice within government and the public service to approach Mr Gleeson’s office directly.

“This legal services direction, far from being a grab for power, merely gives effect to the existing law,” Senator Brandis said.

But the Solicitor-General has had high-profile support from former solicitor-general Gavan Griffith QC, who likened the new arrangement to like having “a dog on a lead”.

Mr Gleeson told the Senate committee that while he did not agree with Mr Griffith’s “colourful language”, the change was radical.

He also raised concerns about being left out of discussions on key issues, including the citizenship-stripping anti-terror legislation and its position on same-sex marriage.

He argued he “only learnt by accident” that the final anti-terror legislation “had been radically changed”, without further advice from him.

Brandis satisfied there was ‘appropriate consultation’

Senator Ian Macdonald also delayed the proceedings as he tried to have the evidence heard “in camera”, or behind closed doors.

Mr Gleeson reiterated his concerns that he was not adequately consulted on the direction which curtailed access to his office.

“My reason why I say I’m not consulted in this matter, it’s not a technical matter, it’s not semantic, it’s not about form,” he said.

“I said to them, how on Earth could it have been that in the period coming up to the 4th of May, you must’ve known about this direction, you were helping draft it, the Parliamentary Counsel knew about it, the attorney knew about it, his staff knew about it.

“How on Earth could it have been that the one person who needed to know wasn’t told?”

Senator Brandis insisted he had met all of his obligations under the law to consult with Mr Gleeson, and said the whole bitter feud had stemmed from “confected controversy”.

“It does not require a person who was consulted to be specifically aware of any precise intention or lack of intention that a rule maker will have,” he said.

“It is enough, indeed it is more than enough, that a rule maker be satisfied that there has been appropriate consultation about the subject matter of the legislative instrument.

“That is what occurred in this case.”

Liberal senator Linda Reynolds pushed Mr Gleeson on his dealings with Shadow Attorney-General Mark Dreyfus during the election campaign, when the Government was in caretaker mode.

Mr Gleeson denied he was not abiding by the caretaker provisions which prevent significant decisions of government being made, but argued he had a higher duty to the Commonwealth to raise concerns over the matter.

It was a matter that came as a surprise to Senator Brandis, who told the committee he had not heard about the conversation until Mr Gleeson gave his testimony — but that he ought to have been told.

Speaking at another event in Parliament House, Prime Minister Malcolm Turnbull said he did not believe the Solicitor-General’s independence had been compromised.

“It is inconceivable that the Attorney-General would say ‘No, I don’t want you to seek the advice of the Solicitor-General’,” he said.

“So, we are forgetting that the Attorney-General and the Solicitor-General are a team. They support each other. But the Attorney-General is the first law officer.”