Former solicitors-general have weighed into the dispute between the Attorney-General and the outgoing Solicitor-General, reinforcing their view the office needs to remain staunchly independent, but questioning aspects of Justin Gleeson’s argument his position was untenable.
Mr Gleeson resigned as Solicitor-General yesterday after a bitter public spat with Attorney-General George Brandis about his decision to restrict access to his office’s expert legal advice.
Mr Gleeson had also complained about being left out of deliberations on key matters of public importance, such as anti-terror legislation and the debate on same-sex marriage, and that Senator Brandis had sought other legal advice.
Mr Gleeson’s resignation came on the same day the former office holders had gathered to debate the importance of the role.
Sir Anthony Mason QC was solicitor-general in the 1960s, before being appointed to the High Court in 1972 and serving as its chief justice for more than eight years.
His opinion was that Senator Brandis’s interpretation of the Act, which sets out the solicitor-general’s powers, and claiming all requests for advice must come through him, was a “bit of a stretch”.
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Sir Anthony said the solicitor-general was an independent law officer, “generally not subject to directions by the attorney-general as to the manner in which he should discharge his functions”.
“At the same time, the solicitor-general is, in my view, a professional colleague of the attorney,” he said.
“But neither this, nor the fact the solicitor is an independent law officer, prevents the Government seeking advice from counsel other than the solicitor-general.
“There may be sound reasons why advice may be sought from other counsel — the solicitor, unfortunately unlike the Pope, has no claim to infallibility.”
Bob Ellicott was one of only a handful to have experience on both sides of the divide.
He served as solicitor-general from 1969 to 1973, before he was elected to Parliament and appointed as attorney-general under Liberal prime minister Malcolm Fraser.
“The relationship between attorney-general, solicitor-general is based on trust, and confidence and good faith.”
“Independence does not mean the independence to go about and advise anybody.”
Mr Ellicott went on to note: “You don’t have to resign because you can’t get on with the Attorney-General, or vice versa.”
The Attorney-General and other Coalition members have seized upon Mr Gleeson’s own evidence to a Senate inquiry that he spoke to the shadow attorney-general Mark Dreyfus during the caretaker period, when the nation was in the midst of the election campaign.
But Mr Dreyfus said the wrong man had resigned, urging the Attorney-General to fall on his sword instead.
He told the ABC he took no responsibility for the irreparable relationship between the two senior lawyers.
“The circumstances were entirely created by George Brandis,” Mr Dreyfus told ABC News Breakfast.
“He had it within his power to as soon as Justin Gleeson wrote to him in mid-May to turn this around.”
Legal community jumps to Gleeson’s support
Law Council of Australia president Stuart Clark admitted some people who may have coveted the role of solicitor-general might now be concerned about taking up the job.
“It’s imperative that we have somebody of absolute integrity, it’s imperative that we have somebody who is not afraid to give advice which will be potentially distasteful to the government of the day,” he said.
“We had that person in Justin Gleeson.”
“Regardless of what has happened, Justin Gleeson is a person of absolute integrity.”<br />
Coalition senator Ian Macdonald, who was the deputy chair of the Senate inquiry into the verbal brawl between Mr Gleeson and Senator Brandis, said the Solicitor-General’s position was untenable.
“His discussions by Labor shadow ministers during the caretaker period does call into question his judgement,” Senator Macdonald said.
“There’s a rule then that he should have made the government of the day, whoever it might be, aware of the fact he had spoken to other political parties — he didn’t do that.”
He conceded the future of the legal direction, forcing all requests for the solicitor-general’s advice to be approved by his office first, may not survive a vote of the Senate.
“Whether or not that rule remains or not, is a matter for Parliament — there has been a disallowance motion moved, and it would be for Parliament to decide,” Senator Macdonald said.
“Perhaps Senator Brandis didn’t have the right solution, it was a solution, and if it’s not the right solution then I’m sure he will find a better solution if that one is disallowed by the Parliament.”