It is of the essence of the idea of the Law Officer that he is, at least in advising, detached and independent, and that the advice represents a statement of the law rather than of some clever way of getting around it.
Parliaments in the Westminster tradition have seen Attorneys-General, and Solicitors-General as the primary legal advisers of government, operating not in a politically partisan way but, at least while giving legal advice rather than, say, making changes to the Copyright Act, acting in accordance with the spirit and the intention of the law and the constitution, and in the public interest rather than as cover for the political intentions of government.
Actually Christian Porter has done this once, in the process giving some explanation of his role. When Malcolm Turnbull was seeking to outmanoeuvre Peter Dutton he insisted that Dutton would not be able to be sworn in by the Governor-General because there were doubts about whether he was eligible to sit in parliament because of his interest in child-care centres, which receive Commonwealth subsidies. Turnbull had privately obtained an opinion from Brett Walker, SC, and seemed to imply that Sir Peter Cosgrove shared his doubts.
Porter, who was supporting Dutton in the challenge (and, later Dutton against Morrison), thought that this was nonsense. It was not for the Governor-General to act as the High Court, determining disputed matters of eligibility. It was for the Liberal Party room. The party might want to be reassured by legal advice that Dutton would not lose his seat. But even if that was a risk, which he doubted, the party could elect him as leader, and the Governor-General would make that leader prime minister, he said.
He volunteered advice to Turnbull not to raise the matter with the Governor-General.
Discussing it later, he said: “The job of the Attorney-General is to provide advice that he or she considers accurate and legally correct. Sometimes that advice is not always what people want to hear.
“But I have always taken seriously the role, and the fact that role requires to give advice to the best of your legal knowledge and ability you think is accurate and correct, that’s what I’ve always tried to do. That’s what I did in the course of that very difficult week, that’s what I am going to do today, and keep doing tomorrow.”
It is of the essence of the idea of the Law Officer that he is, at least in advising, detached and independent, and that the advice represents a statement of the law rather than of some clever way of getting around it. All the more so when Porter is not among the front rank of lawyers, as have been in the past Attorneys-General such as Sir Garfield Barwick, Bob Ellicott, or even Mark Dreyfus.
No one knows exactly what advice Porter gave Scott Morrison after the Auditor-General, Grant Hehir, expressed doubt about the legal basis for sports rorts decisions. According to the legislation, it had been for the Sports Commission, not the minister, to make decisions. According to Finance guidelines, even if they were not strictly expressed to apply to the sports commission, a distribution had to be fair, transparent and in the public interest rather than a blatantly partisan rort.
This was Porter’s opportunity to prescribe a process required by the legislation. Instead, it seems, he came up with some vague theory suggesting that, under the constitution, it was for a minister to be responsible for all decisions, and that a minister had the right to take it over. This is constitutional nonsense, and will no doubt be shown to be so in upcoming litigation. That’s if the advising is able to be found. It served Morrison’s purpose, of being able to blandly deny any illegality. Just as later, a very narrow inquiry conducted by the head of prime minister’s, Phil Gaetjens, a former political staffer to Morrison, was conducted with blinkers on, and neglected to look at issues of propriety, proper process or adherence to law. Gaetjens found a conflict of interest, enough to satisfy a consciously tiny curiosity on the part of the notional head of the public service about whether proper practice occurred.
Such Porter approaches to his duties are by no means rare. This week a senior Federal Court judge, Geoffrey Flick, was highly critical of the Minister for Immigration, suggesting that he had behaved criminally in failing to follow court orders he disagreed with, resulting in a person being wrongly held in jail. One could not hear the first law officer of the crown defending the court system, judges, or even the rule of law. Instead he effectively dismissed the court’s concerns, and denied a problem. There is a problem, but he’s not part of the solution.
Porter was a minister for social security while ministers and bureaucrats were devising the Robodebt scheme. Many observers had doubts about its legality from the start, but the question did not seem to agitate the minister. Later, after Porter had left the portfolio, scores of people won low-level appeals against Robodebt assessments, with tribunals holding the scheme unlawful. But the department engaged in a conscious stratagem of deciding not to appeal such rulings, instead rendering the actual assessments null, but declining to use the ruling as a precedent. The bottom level appeals were not reportable, and the public was not told of the rulings. Had the department appealed, the fundamental illegality of the scheme would have been laid bare. Eventually, of course, a different litigation path exposed the illegality of the scheme, and the Commonwealth is now in the process of handing back more than $700 million, money that many officers must have known was being improperly and illegally collected. That, of course, says something about the ethics of the public servants in question – and their fitness for office.
But it also involves questions about an old theory that the Commonwealth was supposed to be a model litigant, above cheapo tricks and, in this case, outright fraud. Who is the owner of this tradition of enforcing the actual law, not the law as government would prefer it to be? Commonwealth wide? Christian Porter, of course. It could, of course make an interesting reference to an integrity commission, if Porter were to have any appetite for one. He doesn’t.
That’s not to say that there are no political risks in laying traps for thieves, frauds and rorters. There are, especially for folk such as Morrison so little given to paying attention to the details. But experience shows that those who do not police their plans cause much more trouble and waste, and do themselves and their reputations more harm than if they try to sweep their mistakes under the carpet.