Solicitor-General Justin Gleeson has told a Senate Committee hearing he was shocked by the “radical change” in his professional relationship with Attorney-General George Brandis.
The 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 began giving evidence today, firstly emphasising that it is “essential” his role remains 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,” he said.
“Do I lie awake at night worrying about it? I have, every night since the fifth of May.”
Senator Brandis has to date 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.
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”.
“Please do not interrupt me”
Mr Gleeson told the Senate Committee that while he did not agree with Mr Griffith’s “colourful language”, the change was radical.
“What is currently contained in the direction issued on 4 May has never previously existed between Attorney-General and Solicitor-General in Australia since 1916,” he said.
“It is a radical change in the practice, whereby a Solicitor-General can do nothing. Cannot even speak to a lawyer until he has received a brief with a signed consent.”
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.
And on it goes
Brandis to give evidence
Mr Gleeson and Liberal Senator Ian Macdonald have been involved a number of stoushes during the hearing, with the Solicitor-General criticising the Senator for continuously interrupting him.
Senator Macdonald also delayed the proceedings as he tried to have the evidence heard “in camera” or behind closed doors.
Senator Brandis is due to give evidence later today.
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.
“If one has a duty to consult over the issue of a legislative instrument, the first thing you have to do is tell the person affected or the person with expertise you’re thinking of issuing a legislative instrument.
“If you don’t tell them that, they can’t provide you with meaningful comments on either the legality or the wisdom of what you’re doing.
“The second thing you have to do is tell them the substance of what you predispose to put in the instrument — now if the Attorney had done both those things, the issues that we now have before us would have played out in a very different fashion.”
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.
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.”