By Mungo MacCallum
Our attorney-general George Brandis states, as an inviolable credo, that a barrister must give fearless and impartial advice at all times.
This is a legal ideal, and perhaps one that he believes in, but the fact is that he, like all his predecessors in the office, faces an irreconcilable conflict of interest.
Certainly he is a lawyer, and a very important one: he is the first law officer of Australia. But he is also predominantly a politician; a senior government minister. And as such, he has an obligation to both prosecute and defend the decisions of the cabinet and the party room, even if – indeed, especially if – he disagrees with them.
He cannot be, and is not, impartial when it comes to matters of political controversy; the only alternative is resignation and Brandis, like almost all of his colleagues, is not going to take his guiding principle quite so far.
The contradiction inherent in his position is hardly unique; just about all of his predecessors have found themselves in similar situations. And, like Brandis, they have resolved their dilemmas by putting their politics first. Many have done so with spectacular success: three of them – Alfred Deakin, Billy Hughes and Robert Menzies – went on to become prime minister, and another three – John Latham Herbert Evatt and Billy Snedden – led their respective parties, while others, notably Garfield Barwick and Lionel Murphy, thought they should have.
Almost all attorneys-general have been prominent lawyers, but most have been, predominantly, ambitious politicians, with all the conniving, wheeling and dealing, and necessary compromise that is unavoidable in their rise up the greasy totem pole. Not all make the climb without scars; Evatt and Murphy, for instance, were severely wounded in the process before retiring hurt to the relative peace of their respective judicial benches.
And now Brandis is in the spotlight, defending both his government and his reputation over a stoush between himself and another and more eminent senior counsel, the second law officer of Australia, the solicitor-general Justin Gleeson.
Gleeson is not a politician; he is a public servant. His function is, without ambiguity, to give impartial and fearless advice to his clients, primarily to the government, but also to other members of parliament and senior public servants. He is nominally under the portfolio of his minister, but is expected to be independent.
He was very well connected in prominent legal circles and was given the job of solicitor-general in 2013 after a highly distinguished career in private practice. Until recently, there has been absolutely no controversy over his role from either side of politics.
But it has now become apparent that friction between Brandis and Gleeson has been building for some time; Gleeson believed that he was being bypassed, with Brandis seeking advice from others behind his back. And open warfare broke out with Brandis’s directive that from now on Gleeson was to ask the attorney-general for permission to advise others who sought his counsel.
Gleeson believed his independence was being undermined and threatened, and he had plenty of support: one former solicitor-general, Gavan Griffith, who served under the Hawke, Keating and Howard governments, said that the image of a dog on a lead came to mind. Gleeson also declared that Brandis had not consulted him about the proposed change. Brandis insisted that the subject was discussed, but admitted that he had not told Gleeson that he planned to issue a new directive on the eve of the last election.
It was this stand-off that led to the accusation that Brandis had deliberately misled parliament when he told the senate that there had in fact been consultation; this accusation is serious enough, normally a hanging offence. But the more important issue is the nature of the change itself.
Brandis declares that it is no more than a formality, that he would rubber stamp any requests for advice that Gleeson might be proffered. But if that is the case, why issue the directive at all? If it hadn’t been a problem, what precisely is the need to fix it?
Brandis’s opponents, and there are many of them in both political and legal circles, accused him of a naked power grab, and with some justification; he had done much the same thing as arts minister (subsequently removed by Malcolm Turnbull) when he stripped money from the independent Australia Council to fund his own choices.
And when he appeared before a senate committee on Friday, he gave no real explanation of the need for the directive that has caused the furore. Instead, he took the stand as both lawyer and politician; filibustering shamelessly to pre-empt questions, patronising and dismissing his interrogators and arrogantly demeaning Gleeson and any other critics. He knew best; they were either ignorant or mischievous.
In the end he will almost certainly get away with it: the jury is stacked, the government has the numbers. But he has hardly enhanced his reputation with the legal fraternity, and given that he – like so many previous AGs – is reportedly hoping for a job on the High Court when he is ready to retire from the undignified hurly-burly of parliament, the exercise in massaging his ego may be somewhat counter-productive.
And of course it has all been yet another unwelcome – and apparently unnecessary — distraction for a government and a prime minister with all too many such diversions. Brandis has long been seen as a bit of a loose cannon; pompous, vain and gaffe-prone, something of a liability. But he is a staunch ally of Malcolm Turnbull, who has to support him; in the present circumstances Turnbull has to support everybody. At least he has no conflict of interest; he gave up being a lawyer long ago.
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