Sunday, October 16, 2016

Brandis, Gleeson and the question of independent advice

The current dispute between Australia's top two law officials, Attorney-General George Brandis QC and Solicitor-General Justin Gleeson SC (picture), has many elements of high theater and has attracted widespread media coverage. Examples here, here, here, here. Submissions to the Senate Inquiry plus transcripts of hearings can be found here. It also raises some quite serious public policy issues. 

By way of background, the Australian Attorney-General is the first law officer of the Crown in right of the Commonwealth of Australia, chief law officer of the Commonwealth of Australia and a minister of the Crown. Under the Constitution. Technically, the A-G's are appointed by the Governor-General on the advice of the Prime Minister, and serve at the Governor-General's pleasure. In practice, while the Attorney-General is a party politician, with their tenure determined by political factors. 

The Solicitor-General is the Commonwealth's second law officer. ",  The position is an official one. WThe holders of this office are not members of Parliament. The Commonwealth Solicitor-General gives the Government legal advice and appears in court to represent the Commonwealth's interest in important legal proceedings, particularly in the High Court". 

On 4 May 2016 just before Parliament rose, the Attorney-General George Brandis issued a directive that required all those seeking advice from the Solicitor-General to have the Attorney-General's approval. The Solicitor-General objected that he had not been consulted and a political firestorm broke out.

I struggled a little to understand what it was all about. After reading the submissions to the inquiry and the first day's evidence, I realised that there was a lot more to it than failure to consult.

The formal functions of the Solicitor-General are set out below. .The two main clauses are 12(a) and (b).    
Functions of Solicitor-General
The functions of the Solicitor-General are:
(a)  to act as counsel for:
(i)  the Crown in right of the Commonwealth;
  (ii)  the Commonwealth;
  (iii) a person suing or being sued on behalf of the Commonwealth;
(iv)  a Minister;
(v)  an officer of the Commonwealth;
(vi)  a person holding office under an Act or a law of a Territory;
(vii)  a body established by an Act or a law of a Territory; or
(viii)  any other person or body for whom the Attorney-General requests him or her to act;
(b)  to furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General; and
(c)  to carry out such other functions ordinarily performed by counsel as the Attorney-General requests.
The way that Commonwealth agencies should approach the Solicitor-General was set out in a non-legally binding Guidance note from the Attorney-General's Department. This stated (among other things) that the Solicitor-General would advise the Attorney-General  if approached for advice and provide the A-G with a copy of his advice. The Solicitor-General was concerned about the working of this guidance note, work load seems to have been an issue, and sought to have it reviewed.

One option would have been to alter the guidance note to require those wishing to seek the Solicitor-General's opinion to get approval from either the A-G or his Department. Instead, the A-G issued a legally binding directive (regulation) requiring all those listed in 2(a) above to get the A-G's approval before approaching the Solicitor-General. This, Senator Brandis argued, simply gave legal effect to the guidance note.

This was special pleading. The movement from the guidance note to binding regulation had quite profound effects. Prior to the directive, the Solicitor-General had effective discretion to make a judgement  about whether or not to give advice and, if given, whether or not it should be revealed. The effect of the directive meant, for example, that a Governor-General facing a constitutional crisis when the A-G was part of the Government could not seek advice without getting the A-G's approval. It meant that a Prime Minister or minister who might want an independent and confidential view on a matter could not do so without clearance first from the A-G.

As a regulation, the directive had to be tabled in the Senate and could be disallowed. This will happen. It's already dead. That said, the affair is a warning of the need to exercise vigilance where governments are concerned. If the Solicitor-General had simply rolled over, the issues involved would never have been identified and discussed. 

As a final comment, neither Government nor Opposition Senators on the Senate Committee inquiring into the issue covered themselves with glory. Both were totally partisan. I had to read the submissions and do some web research before I could form any understanding of the issues involved. Here the Solicitor-General himself did his cause no favours. By making the question of consultation the central issue, he effectively concealed the substantive issues involved.    


Since I wrote this post, the second day of evidence has become available. In that, I was struck by this description of his role from the Solicitor-General..Further comments follow the quote:
What happens with any Solicitor-General—this is true of the great Sir Maurice Byers, Sir Anthony Mason, David Bennett, Robert Ellicott, Gavan Griffith and Stephen Gageler—is that one is always balancing a fundamental commitment to the rule of law with a desire to assist the executive of the day and, as I said, occasionally the parliament to comply with that rule of law. Sometimes there is a tension between those matters and sometimes they can be readily accommodated. Any Solicitor-General will try and provide that advice balancing both of those matters. A Solicitor-General will not always necessarily get it right, but what a Solicitor-General will do, because it is a full-time commitment to practice as the premier professional lawyer in the nation, is immerse one's time fully in every aspect of what the High Court is saying about matters and what international courts are saying about matters, read academic articles and attempt to provide the best quality advice. There are tensions in that process because the fundamental way government works is usually policy driven. There is nothing wrong with that; politicians and governments are elected to represent the people and to advance good policies for the community, and there is debate over what good policies are.
A central part of what happens within the government lawyer's work—and most of it is done out of the public eye—is to look at a proposed policy and see whether it complies with the Constitution and whether it complies with the statute law. If it does not, can it be modified to be brought within the law? There are times when any government lawyer, but particularly a Solicitor-General, has to give the hard news that it is his or her view that a particular policy if turned into legislation would be struck down by the High Court. One does not do that overzealously. 
If I might, Senator Watt, there is one other aspect that I think is relevant to that question, which is to explain the relationship, in my mind, between the Solicitor-General and the Attorney-General when it comes to providing advice. The Solicitor-General is the law officer who spends day in, day out providing written opinions after careful consideration of all the precedents. The Attorney-General does not have the time to devote specifically to that topic because he has a far broader range of responsibilities. However, the Attorney-General is responsible directly to the parliament and the people as a minister of the Crown; the Solicitor-General is not. And this has always been one of the points at the heart of the relationship between Solicitor-General and Attorney-General in Australia. A deliberate decision was made by Billy Hughes in 1916 that we would not follow the British model, where the Solicitor-General sits in parliament. The result of that is that there can be occasions where the SolicitorGeneral's opinion, formed conscientiously and after deep study, is regarded by an Attorney-General, after conscientious and deep study, as incorrect. The manner in which I see our constitutional framework working in that unusual case—and it is very unusual—is that the Attorney-General, applying his or her own conscientious consideration of the problem, would write an opinion which would supersede and countermand the Solicitor-General's opinion. The reason I put it that way is that the Attorney-General's opinion on that topic would then sit within the Commonwealth records; it would sit within my office; it would be available to all officers of the Australian Government Solicitor; and everyone within government would know that was now the legal position being taken by Australia's top law officer, which everyone in government, including me, would follow until the High Court or other binding court said otherwise.
So, while I take up the sentiment of your question that the Solicitor-General has a fundamental role in advising to protect the rule of law, it is very important to recognise that that sits together with and is subject to the role of the Attorney-General ultimately to take responsibility and advise in a different direction if he or she thinks so. And within the database records of the Commonwealth, although they are not generally public unless the Commonwealth waives privilege, some of the finest opinions that have been written have been written by an Attorney-General on his or her own or they have been written, occasionally co-authored, by an Attorney-General and a Solicitor-General, and I commend that practice.
There were some aspects of the evidence presented that I was less sure about, including the need to consult the Solicitor-General. It seemed to me that this might be sensible but was not required. However, you did not half-consult. Would be interested in a lawyer's interpretation of the arguments put forward.


Winton Bates said...

I wonder why the SG focused on the procedural issue rather than the substantive issue that his capacity to perform his statutory function could be compromised. There must be more to the story.

Jim Belshaw said...

There was clearly more to the story, Winton. I have updated the post. The second day's evidence makes for interesting reading.

Winton Bates said...

Thanks for posting the additional material. It helps explain how the SG sees his role and why the AG might not be keen to have the SG providing advice on some matters. It doesn't explain why the SG has not been more forthright on the substantive issue of whether the new arrangements could restrict his ability to perform his statutory role.

Jim Belshaw said...

I haven't been sure on this one, Winton. I think that the SG and a former SG in submissions as well has evidence have explained why the changes might stop the SG performing his role. In very simple terms, they stop people seeking advice who should seek advice. In broader terms, the dispute goes to what we should expect from a SG.

Winton Bates said...

I agree. The question of who consulted with whom seems to be just a political sideshow.