The Gleeson Affair is as significant as the Dismissal. Perhaps more so.
By James Moylan.
The reporting in our press regarding the ‘Gleeson Affair’ has been woeful. Most people simply do not understand what the argument is about let alone comprehend the ramifications of this policy decision for our democracy. I am unsure if this is due to our journalists being sloppy and uninformed, partisan in their reporting, or simply exhibiting an ignorance of the law and political science. Perhaps it’s all these factors.
Everyone should be appalled. Like on the day of the Dismissal we should be out in the streets in massed protest. The actions of our current Attorney-General are not just reprehensible and dishonorable – they threaten to undermine the good function of our government and turn Australia into a banana republic.
As a legal academic I fully understand the predicament that Solicitor-General Justin Gleeson, SC, found himself in. No wonder he could not sleep at night. He notified the government of his intention to resign on Monday because he is an honorable man. He had no choice.
Many of our papers made light of his distress. He was portrayed as being weak and personally interested. Not up to the job. I was infuriated every time I encountered one of these smears. I remain ashamed. What has happened to our country? An honorable man lies awake at night fretting for the health of our democracy and he is demeaned by many commentators? The Murdoch press makes me want to vomit.
Why am I so upset? In simple terms Mr Brandis has now turned the Solicitor-Generals Office into an office of the Government. At the heart of this matter is a despicable and almost treasonous direction from the Attorney-Generals office that any matter that the Solicitor-General might consider, from now on, has to be first cleared personally by Mr Brandis.
However this is not just Mr Brandis acting alone. The Prime Minister is also responsible for this piece of bastardry if only because of his utter lack of spine. He is a lawyer and so should be as appalled and sickened by these events as are the rest of the profession. However it is becoming ever more obvious, everyday, that Mr Turnbull has sold his soul for an empty chair. As long as he can clutch to the reigns of power it is apparent that it matters not a jot what dishonorable actions need to be sanctioned. Mr Turnbull has his bauble so professional ethics and the public interest can go hang.
To understand just how appalling this policy decision is requires a quick description of what the Solicitor-Generals office does. The function of the Solicitor-General has traditionally been one in which a well respected lawyer, aided by a highly qualified legal team, provide legal advice regarding the actions of Statute or Common Law to any member of the Parliament who might wish to approach them. This advice might even be tendered confidentially if deemed appropriate. In this way all members of our parliament were assured of being provided with, and receiving, impartial and accurate legal advice which could then be advertised as being an opinion of the Solicitor-General. In this way the office has always been one which is entirely impartial. It was politically neutral. The SC would declare how the law (or a proposed amendment to the law) might operate.
The Attorney-General was responsible for generating a law and the Solicitor-General for advising on the likely legal impact or actions of a proposed amendment to the existing laws. But not now.
Now Mr Brandis has decided that the current government will no longer provide this service to the parliament. Like a banana republic, whether or not a proposed amendment to a law will even be appraised prior to its introduction to the parliament, will now be entirely at the behest of the government of the day. The very same government that generates the proposed legal changes will now be able to veto any adequate and independent appraisal of those amendments before their introduction to the House. If the government does not want a law to be appraised in an impartial manner all it need do is say ‘no’. The implications are dangerous. Moreover this new policy fails to abide by either parliamentary tradition or normal legal practice.
The relationship of the two top legal officers in Australia is often strained and almost always very formal. Which is entirely appropriate. These two offices need to work in unison however the office of the Attorney-General is a political office while the office of the Solicitor-General is an arm or the Judiciary. Yes the AG might be the highest legal officer in the land but this is a purely ceremonial designation. It has to be ceremonial due to the division between the Executive Office and the Judicial Branch, a division that is explicitly enunciated in our Constitution.
Why is this significant? Not only can the government now suppress the generation of any legal opinion regarding its own proposed laws that it thinks is likely to be unhelpful to its political cause, also any opposition or small party request for advice will now be telegraphed immediately from the Judicial Branch to the Executive. It means that the highest legal arbiter in our land has been handcuffed to whatever politician happens to sit in the AG’s chair.
No wonder the partisan hacks and our ‘opposition’ have been so circumspect regarding this matter. If most Aussies did understand these matters fully then Mr Brandis would be tarred and feathered and run out of Canberra on a rail. Turnbull we need not worry about. He is shrinking in public view and will very soon disappear entirely if not stabbed in the back by one of his colleagues first.
Poor fellow my country…
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Return to home pageA great read.
Forgive my ignorance, but exactly how has this change been effected? What has actually happened that now alters the usual process?
My worry is the possible lessening the roll/authority of the judicial arm to the whims of the executive, thus reducing Government accountability especially given the secrecy of this current lot
I have tweeted this to The Guardian and SMH and asked them to consider for wider publication. This piece deserves it.
This should be on every TV screen and headlines in every paper – trouble is a great many members of the public (most of whom think the sun shines out of this government) would not understand.
Never mind, keep telling us please and we will keep listening and eventually their time will be up.
AFP has already become the govt’s lap dog, re lack of prosecution of Brough and Bishop and Brandis would have to approve of any prosecution.
Now they will appoint a Solicitor General who will be a lap dog like commissioner Colvin.
It’s becoming scary to speculate what their objective is.
Brandis has gone too far this time, another good man gone ,and nothing is done about it, Why?
I watched the 7-30 report tonight and Scott Morrison did nothing but praise Brandis over Mr Gleeson.
I hope this matter isn’t done yet ,until Brandis is gone.
Imho, the posting has it right.
Thank you for this article. I have friends who have no idea what is going on with this government which in itself is very scary.
Malcolm Turnbull said in a doorstop, “I may not be the best Prime Minister but I am the happiest.” That sums it up in a nutshell for me. The crazies can run rampant and Malcolm is smiling all the way to his next dinner with dignitaries.
George Brandis has been abusing/flouting the law for his entire term.
He sanctioned the raid on the lawyer for Timor l’Este and confiscated the passport of the whistleblower.
He moved like lightning to strike down the ACT’s marriage equality laws.
When the court ruled that the feds could not fund school chaplains, they bypassed the law by giving the money to the states but directing that it MUST be used for religious chaplains (no trained counsellors allowed).
Before he was even sworn in, Brandis wrote to a court where Peta Credlin was appearing on drink driving charges describing her exemplary character and unblemished driving record. The offence was proven but no conviction recorded.
He condemned the International Court of Justice and the UN for using the term ” occupied territories” to describe East Jerusalem.
He sacked Disability Commissioner Graeme Innes to give his little friend Tim Wilson a high paying job to fill in his time until Andrew Robb retired.
His ridiculous “right to be bigots” is straight from the IPA. That 70th anniversary must have been one hell of a party.
As Minister for the Arts he made a huge slush fund for him to gift to his friends.
He has refused to release his diary despite being instructed by the courts to do so.
He has misled/lied to parliament on numerous occasions, notably about having received legal advice that he hadn’t sought.
He appointed to a lucrative government job a Liberal donor and criminal lawyer who had defended the senator’s son among a flurry of appointments made to the Administrative Appeals Tribunal in the days before caretaker mode kicked in ahead of the July election
He is a pompous git who should be sacked and NOT given Downer’s job as a reward for incompetence.
The loss of the great E.G.Whitlam QC are still being felt in today’s society, the situation with Gleeson as I see it is very serious but nowhere in the league of The Dismissal.
One wonders how many indiscretions or outright acts of bastardry Brandis is going to be allowed to get away with before Malcolm finally bites the bullet and sacks him. I cant understand how Turnbull, who under this proposed regulation would also be required to consult Brandis first before seeking legal advice from the SG, doesnt find that suggestion personally distasteful if not downright offensive.
In a busy world it’s sometimes diifficult to keep track of the utter bastardry of this the equally worst and most appalling conservative government. Their lies, seeming stipidity and calculated calousness towards all people not filty rich is obvious to any with eyes to see. The media a guilty accomplice to this horror show only eco the selective bigotry and distorted world view where idiology replaces facts and evidence. In this atmosphere what chance the fascists [Yes that’s correct because government in the thrall of industry = fascism (Musolini)] wouldn’t tear apart the fabric of separation of powers. Because, we all know that despite cries of socialist/marxist conspirators trying to remove your freedoms. It’s always been the extreme right who seek to centralise power to themselves. With this move the ugly little troll George Brandis has removed oversight which increases his ability to unleash the arbitrary use of power! That’s why this story is so important!
Mr Turnbull has his bauble so professional ethics and the public interest can go hang.
Bang on the money. I hate him more than Abbott.
Great article thanks.
As Keitha pointed out …
“a great many members of the public … would not understand.”
Which of course lies at the heart of Australia’s myriad problems, not least of which is the dysfunctional LieNP “government”.
Good luck, Australia … we sure gonna need it.
Brilliant read, and thank you for the clarification.
All brandmealiar requires now is a cross-hair tattooed on his forehead.
He is such a slimy maggot-ridden piece of shit.
I am not a lawyer, but I clearly understood the gagging of a judicial function by the executive when this story first broke. It frightens me, more so when I would mention it to “well educated” friends who didn’t care for the significance of the executive overreach of the LNP. The very basic separation of powers in our democracy seems so unimportant to people. WTF???!!!
If the actual role and functions of the Solicitor General’s Office are as described by James Moylan then the Office should be relocated to the Department of Parliamentary Services immediately. The current structure makes the SGO an “office of the Government”. Given this and the current roles described by James I am amazed that the SGO functions effectively at all. The clear conflicts of interest for the SGO in having the Government and the Opposition as clients in relation to the same matters, and the extraordinary powers thereby vested in unelected public servants should have been enough to keep all SGs sleepless. This controversy should have happened 100 years ago. The fact that it has not reflects poorly on both the legal fraternity and the Parliament (many of whom are lawyers).
There is no way that the balding coconut fanatic Brandis is going to allow anyone who could pose a threat to him let alone have a hint of independence and anti-LNP sentiment in the role of Solicitor General. We can forget about cowardy custard Turnbull doing anything that will undermine his obsessive and tenuous hold on the leadership.
I’d love to sneak into his room at night and tattoo NAZI on his forehead.
I too am dismayed about how light on media articles about this issue have been about this usurping of democracy.
His Excellency General the Honourable Sir Peter Cosgrove AK MC (Retd)
Governor-General of the Commonwealth of Australia
Your Excellency,
The recent move by the Attorney General George Brandis MP to restrict access to the office of Solicitor General through a guidance that communications need to be vetted by the office of the Attorney General is of great concern to me.
The move has effectively placed Attorney General above the Rule of Law, destroyed the Separation of Powers and politicised the hitherto interdependent status of the Solicitor General.
His actions have led directly to the resignation of the Solicitor General and further undermined confidence in government and judicial process.
I urge you, in your position of Queen’s representative, to direct that Prime Minister Turnbull to annul this directive or remove Mr. Brandis MP from the position of Attorney General and test the rule in the High Court.
Mr Brandis MP has a history of decisions of questionable legality and I believe it incumbent upon you as paramount representative of the constitution to intervene in this matter.
Respectfully yours,
Edit as you see fit and send to https://www.gg.gov.au/email-contacts.
Isn’t the solicitor general part of the executive, not the judiciary?
The current GG was installed as a LNP yes man,
The suggested letter is pointless!
Aaaaaa, the Solicitor General is appointed by the Governor General on recommendation by the Prime Minister. As such he/she is part of the judiciary and not part of the Executive. In Australia, the Executive consists of the Prime Minister and ministers. He/she is the first law officer of the Commonwealth who is not a politician. In this current situation, it is akin to eg a Prime Minister putting restrictions on what the Governor General may or may not do, on who he may or may not speak to and under which circumstances.
That’s interesting, thanks Carol… Just to be sure, is it clear that the SG is part of the judiciary? He is not a judge or a magistrate, and in fact he represents the government in Court proceedings… On my understanding, no member of the judiciary can give legal advice or represent the government in Court.
Apologies Aaaaaa, you are of course quite correct, the SG is not part of the judiciary, but rather deals with law both in an advisory capacity to all members of the government including the GG. He also represents the Commonweath in all High Court matters.
It crossed my mind that Brandis in his attempt to ‘sticky-beak’ as to who might seek legal advice from the SG, who did he actually want to spy upon? Labor..or his own side? Perhaps to thwart any potential Abbott coup?
Yes, thanks for confirming that Carol.
Since the SG is not part of the judiciary, it seems this article is fatally flawed. The Gleeson situation is in fact nothing like the dismissal, and in no way threatens the rule of law or the separation of powers.
https://www.theguardian.com/australia-news/2016/oct/25/labor-wins-support-to-tear-up-george-brandis-legal-direction-to-solicitor-general
If the constituton protects the division in roles, why is there not a high court challenge?.
Indeed what has happened to our country?
Please refrain from calling this the Gleeson Affair. It is the Brandis Affair. His is the name that should be tarred. Not Gleeson’s.
There is no High Court challenge because there is no constitutional issue. The constitution does not protect the division in roles between the AG and the SG, and in fact says nothing at all about the SG (or the AG).
The author of this article has based his entire argument on the fundamentally flawed assumption that the SG is part of the judiciary. Since that is plainly wrong, the article should probably be taken down, or corrected. It’s just confusing people.
I pulled out two hedging paragraphs that pointed out that the SG is not a Chapter Three officer (a member of the Judiciary) but is still a particular and very different sort of ‘Solicitor’ because the office represents the people (the Crown) yet is instructed by the incumbent government, attendance to statutory directions, and traditional practice.
It is not meant to be a legal opinion. Mr Brandis is legally able to do what he has done. The constitution says nothing about the status of the SG but the traditions of practice and statutory requirements certainly do. So while the SG is a Statutory Officer (in Admin terms) he/she is also required to be a sort of ‘super-solicitor’ in that he/she is the only Solicitor in our country who is required to entirely privilege likely current legal effect in undertaking a legal assessment. In effect the SG is not supposed to ‘argue a position’. When the Executive has a dingle with someone about the apparent and purported effect of a law then the SG argues the intended effect of the law (i.e. it is not ‘a position’ but rather the ‘the intent and function of the law’). That is why I say that the SG is in the unique position of being a quasi-judicial officer that is hallway twixt the judiciary and the Executive because he has to be guided by adherence to black letter legal reasoning and tradition at every step. it’s a really difficult gig. The decisions of the HC might correct him, but certainly not the AG.
as I say underneath this piece on my FB page:
“… lawyer for the Crown: not Mr Brandis or the current incumbency. The whole piece was written as a critique of the political bastardry that was perpetrated by Mr Brandis upon the system and deliberately dumbed down the legal distinctions because they are beside the point. The SG is now handcuffed to the AG. That changes the nature of the office completely. One reason that the article seems a little disjointed is because I removed two hedging paragraphs pointing out that the SG is a solicitor that is like no other sort of solicitor because its ultimate client is not the incumbent government but rather its statutory duties (as with every practitioner) & traditional practice. To have an AG spell out for a SG what the stat duties of his office might be in a nice little email note is plain rude and destructive of democratic process. The Dismissal was an abuse of process of such a profound and outrageously obvious nature that it is entirely unlikely to ever be repeated. Whereas what Mr Brandis has done is by policy decree. He has refashioned the traditional relationship between the AG and the SG in the stroke of a pen and by changing traditional practice he has weakened the institutions of state in a manner that is likely to be long-lasting and significant.”
Furry little ‘wookie’ versus human. Let’s Get Ready To Rumbuuulll!
Thanks James.
Although the article is of course yours to write, you might consider reinserting those hedging paragraphs. Throughout the article you say that the SG is an “arm of the judiciary”, that the relationship between the AG and the SG is based on “the division between the Executive Office and the Judicial Branch” and that requests for advice will now be “telegraphed immediately from the Judicial Branch to the Executive”. You also say that the SG is the “highest legal arbiter in our land”. None of those things are true, and without hedging paragraphs, they are very misleading statements to make. In fact, even with hedging paragraphs they are misleading, because they are simply false.
You begin the article by speculating that the unsatisfactory reporting on this matter has been due to sloppiness and ignorance of the law and political science. If that is so, then your article should aim to clarify the situation – not make it worse by glossing over or conflating fundamental legal and constitutional distinctions. It is clear from the comments on this page that your article has confused many people.
Anyway, it’s your article, and I’m sure AIMN is capable of making its own editorial decisions. But if anyone wants a more sophisticated and credible discussion of the role of the SG, here is a link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/BondLawRw/2011/11.html?stem=0&synonyms=0&query=cth%20consol_act%20loa1964127%20s12
Turnbull sought power but all he got was the title and an empty chair. He is the embodiment of Hollowman.
This government has been a disaster from day one and I cannot see things improving at this rate. If only MT had waited a couple more weeks before calling the election we might have got a different result.
Yes indeed, poor fellow my country. 🙁
@ Kaye Lee
A truly depressing litany of offenses, and yet he is re-elected. It’s obvious that 50% of the population are greedy morons prepared to allow this as long as they get what they want. Frankly, I’ve had enough and I’m about ready to sell up and move somewhere sane.
His latest offence appears to be to refuse to confirm or deny whether the Solicitor General offered him up an opinion on the latest terrorism legislation.
Why won’t Brandis say whether or not the SG had doubts about it?
Thank you Aaaaaaa for your clarity in the above discussion and for providing the link to the Goff-Gray article. I have a much better understanding of the Gleeson situation now.
It’s a travesty that out nation’s chief legal officer is now the number one enemy of the law – placing himself well above it. Our attorney general is the most dangerous terrorist in Australia – public enemy #1. This is just another example of his absolute disrespect for anything that stands in between him and absolute power. Look at s35P of ASIO act, look at metadata retention, remember the bookshelves and the right to be a bigot.
GB is an absolute disgrace to democracy and should be removed (and preferably imprisoned indefinitely under terrorism legislation) immediately, before he does any more harm to our country.
Not only are the actions of Brandis beyond the pale, we also have the Joyce/Grimes scandal and the deplorable and partisan reporting of both in the mainstrean media. Are they trying to dumb us down? Now the government has been caught out over the Bob Day (and Culleton) shambles as well. But where to from here? Surely this government cannot be allowed to run to full term.
The word “treasonous” jumped out at me – that describes Brandis’ absolutely disgraceful behaviour in putting Liberal party interests before those of the country (the ATO). And they have the cheek to “blame Labor” for the state of the budget ! I understand that the Directive that he had got through parliament, has now been withdrawn, or otherwise made ineffective. As to why people arent outraged, (a) many people are not interested in politics at all (b) are brainwashed by Murdoch media saturation and (c) if they do care, they are worn out by all the shenanigans – too much to keep up with, with this lousy government lurching from one unsatisfactory situation to another. Turnbull should definitely and decisively sack Brandis – no pussyfooting around – no use being furious behind the scenes and allowing this blatant and yes, corrupt behaviour. I heard Laura Tingle on Insiders this morning say “No he wasnt corrupt, because that means money in your own back pocket.” Thats a very narrow definition. Brandis stood to gain a BENEFIT – by delivering a 1 billion dollar favour to his own political party – at the expense of the country, the whole population, via the ATO. The benefit does not need to be cash in your back pocket. It was a clear cut corruption of process. For which Brandis would have got a big pat on the back. Thank God for Justin Gleeson, he deserves a medal. His integrity and courage to stand up to Brandis by arguing the honorable and correct argument in the High Court, (a judgement that was quickly judged 7-0.) contrary to George’s direction, is a shining example to Malcolm Turnbull of ethical behaviour in action. Something he sees little of, from himself or from within in his own party. We thought the Abbott govt was bad. How bad is the Turnbull version?