In a previous article in these pages (SPENCER ZIFCAK. First Law Officer vs Second Law Officer: George Brandis undermines Justin Gleeson), I set down the core principles at stake in the present conflict between the Commonwealth Attorney-General, George Brandis, and the Commonwealth Solicitor-General, Justin Gleeson. The conflict concerns the extent and limits of the Solicitor-General’s powers to provide high-level legal advice to the Government and to its departments and agencies.
More particularly, it relates to the Senator Brandis’ present attempt to introduce a new rule that the Solicitor-General may only provide a legal opinion to a government department or agency if the Attorney-General’s consent is first obtained.
My argument in the article was that the attempt by Senator Brandis to narrow and constrain the Solicitor-General Justin Gleeson’s authority to provide independent and autonomous advice would be highly likely to undermine the operation of the rule of law.
I also suggested that it was probable that the ‘legal direction’ through which the Attorney sought to achieve that objective may, because it is a legal instrument subject to disallowance by the Senate, fail to materialise.
The issue has now come before the Senate in the form of an inquiry as to the merits and demerits of Attorney’s legal direction and its associated guidelines. The inquiry has unleashed an extraordinary and unprecedented political and legal battle between the two highest law officers in the land as to their respective roles and responsibilities.
There are three interrelated issues involved. First, how should the legislation setting down the ambit of the Solicitor-General’s responsibilities be interpreted? Secondly, in seeking to narrow the ambit of the Solicitor-General’s authority to provide legal advice autonomously, has the Attorney-General complied with his legal responsibility to consult relevant parties, and most notably the Solicitor-General, prior to introducing the legal direction? Thirdly, if the legal direction were to enter into force, might the rule of law be diminished or undermined?
The functions of the Solicitor-General are set down in the Law Officers Act 1964. Section 12 of that Act sets out three functions. The Solicitor-General may act as counsel for the Commonwealth, its departments, agencies and officers. He or she may provide an opinion to the Attorney-General on questions of law referred to him or her by the Attorney General. He or she may perform any other function as legal counsel that the Attorney-General may request.
In Senator Brandis’ view, s.12 means that the Solicitor-General may act with complete independence when acting as ‘counsel’ that is when acting as the Government’s advocate in court. The position is different, however, when the Solicitor-General is asked by a government department or agency to provide a legal opinion. The Senator’s contention is that he or she may only provide a legal opinion when the request for the legal opinion has been referred to and approved by the Attorney-General. If the Attorney-General does not approve, no opinion may be sought or obtained.
In his submission to the Senate inquiry, Justin Gleeson argues that the Attorney’s interpretation of s.12 is legally incorrect. That is because Senator Brandis interprets acting as ‘counsel’ far too narrowly. As generally and properly understood, the role of counsel is not confined to representing persons or organisations in litigation. It extends further to advising them on their rights and obligations irrespective of whether litigation is anticipated or contemplated. In his capacity as counsel, therefore, the Solicitor-General contends that should be able to provide such opinions without the Attorney-General’s intervention.
The Solicitor-General notes that he has previously been instructed to provide legal opinions without any express approval from the Attorney-General having been communicated to him. These occasions have included requests from persons such as a Prime Minister and a Governor-General in circumstances where he had been required to keep the requests for, and content of, his advice confidential. That position, he concludes, ought not to be changed.
In my view, the Solicitor-General’s opinion is to be preferred. His interpretation of acting as ‘counsel’ conforms to conventional legal understanding and practice. The consequence of adopting the narrower view would be to constrain the role and functions of the office of Solicitor-General far beyond any limitation that has been contemplated since the establishment of the office in 1964.
To require departments and agencies to obtain the prior permission of the Attorney-General to seek a legal opinion would act as a significant disincentive for government agencies to approach the Solicitor-General for advice, particularly given the highly political nature of the Attorney’s office and the partisanship of its occupant. It would also have a significantly adverse effect on the Solicitor-General’s independence and autonomy.
The second fraught issue concerns the heated disagreement between the Attorney and the Solicitor as to whether or not the Solicitor was consulted as to the ‘legal direction’ that purports to limit the circumstances in which his legal opinions can be provided.
Senator Brandis contends that, as legally required, a proper consultation did take place because all the relevant matters with respect to the direction and its guidelines were ventilated extensively at a meeting that took place between he and Justin Gleeson on November 30th 2015. The meeting was convened at Mr Gleeson’s request as he had indicated to the Attorney that he was unhappy with certain aspects of the procedure pursuant to which his advice was being sought by departments and agencies. The guidelines, therefore, had to be changed.
In his submission to the Senate inquiry, Mr Gleeson rejects outright the idea that he was properly consulted in relation to the making of the legal direction requiring the Attorney’s prior approval for the provision of the Solicitor’s legal opinions. In Gleeson’s own words:
‘at no time at that (November 30th) meeting did the Attorney-General indicate that he was considering issuing either a legally binding direction…or a requirement that a Commonwealth person or body should only approach the Solicitor-General for advice after receiving the Attorney-General’s advance approval.’
It might have been difficult to determine which perspective on the meeting was more accurate, had it not been for the release to the Senate inquiry of handwritten minutes of the meeting taken by two of Senator Brandis’ staffers. While it should be acknowledged that the minutes are not official, and that they are notes that can be open to differing interpretations, both sets suggest that Mr Gleeson’s understanding of the meeting is the more persuasive.
Certainly, the minutes disclose that early in the meeting the ‘legal direction’ is one of a number of documents identified by the participants as relevant to the discussion. Nevertheless, both sets of minutes make it clear that the meeting’s almost exclusive concern was with the alteration of the guidelines and not with the amendment of the legal direction itself. No resolution or agreement with respect this latter matter is recorded at all.
What then is to be made of the Opposition’s contention in parliament last week that Senator Brandis deliberately misled the Senate as to the nature and appropriateness of the consultative process that took place?
I think the fairest conclusion is that consultation concerning the legal direction’s guidelines occurred and met the relevant legal requirements. At the same time, however, consultation as to the rewriting of the legal direction itself seems to have been next to non-existent. So, Senator Brandis did not lie to the Senate but he dissembled, thereby sowing uncertainty and confusion inside parliament and out.
For that reason, and because to attack the authority, autonomy and independence of the Office of Solicitor-General is plainly and seriously to undermine the rule of law, the Senate should now proceed to disallow the Attorney’s legal direction.
Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and was for ten years a Vice-President of the International Commission of Jurists (Australian Section)