Law Officers, Lies and Video Tape

The Attorney-General and Solicitor-General's office have been locked in a high stakes political battle over the provision of advice to the Federal Government. In this post, Jennifer Duxbury (@duxburyjen) at the Institute for Governance and Policy Analysis at the University of Canberra, asks, what is the relationship between law and politics in our democracy? This post originally appeared on The Policy Space.

There is nothing in the world more fascinating than the mouth of a lawyer in operation
--Honoré Daumier[1]

Daumier, the nineteenth century French artist whose satirical lithographs of lawyers adorn many a Barrister’s chambers, would have relished the recent proceedings in the Legal and Parliamentary Affairs Committee of the federal parliament. The spectacle of the Attorney-General, George Brandis, and the Solicitor-General, Justin Gleeson, prosecuting their “he did or didn’t say” silk’s squabble would have been sublime in Daumier’s hands. Last Friday, it was the dispassionate lens of the parliamentary cameras which subjected the country’s two top law officers to the public’s gaze. What those cameras revealed is as likely to inspire public cynicism about the relationship between law and politics as anything produced by Daumier’s biting realist pen.

Technically the subject of the committee’s inquiry is whether Brandis consulted Gleeson before issuing a direction on May 4 this year, the last sitting day of parliament. The terms of the direction, prohibit anyone in federal government, including the Prime Minister, from seeking the Solicitor-General’s advice without the Attorney-General’s signed written consent. As far as anyone can recollect, the direction is without precedent, but whether in practice it constrains the Solicitor-General’s important role within federal government is contested

Gleeson made clear in his testimony that for him the direction raises fundamental concerns about the ability of his office to support the rule of law. The rule of law is the constitutional principle which means a government as much as its citizens are subject to the law. The direction was he said, a hobble on the office, “a radical change” which constrains the Solicitor-General from even speaking to a lawyer, until he has received a brief with the Attorney-General’s signed consent “Do I lie awake at night and think, ‘Reading this direction literally, the AG could seek an injunction against me to restrain me from performing my office’? I do.” Brandis says the direction is an administrative procedure, designed to ensure better coordination within and between government agencies of matters of high legal importance. In his evidence to the committee, he argued the direction merely clarifies the operative terms of the Law Officer’s Act 1964 and formalises working arrangements that have been in place for some time .The issue of “consultation” he dismissed as nothing more than a semantic dispute over the meaning of the word rather than one of substance.

While the Attorney-General is referred to as the Commonwealth’s first law officer, the role nowadays is first and foremost political. It is the Solicitor-General’s office which sits at the top of the government’s legal branches and provides legal advice on the most important and sensitive issues of government policy. If the direction does fetter the Solicitor-General’s independence this has repercussions for all lawyers who advise Federal government.

One might have expected, given the importance of the legal issue, the legal profession would have inundated the committee with submissions. Instead, the profession has stayed out of the fray. Given the federal government is a highly desirable client for private practitioners there is little to gain and everything to lose from taking sides. While government lawyers have a significant stake in the inquiry’s outcome, they cannot comment freely on the merits of the direction without breaching their obligations as public servants. The Office of Parliamentary Counsel and the Department of the Attorney-General each made submissions on the factual background to the direction. Both submissions were carefully crafted and made in neutral terms. Only two public submissions were made on the substance of the direction[2]. Both argued the direction should be abandoned and expressed concern that the direction would compromise the Solicitor-General’s independence.

Behind the lawyerly rhetoric there are high stakes politics in play. The catalyst for the committee’s inquiry was a private conversation that took place between Gleeson and Mark Dreyfus, the Shadow Attorney-General during the government’s caretaker period. Gleeson told Dreyfus that contrary to the wording of the Explanatory Statement before parliament, the Attorney-General had not consulted the Solicitor-General on the direction as is legally required. Since then, Gleeson’s revelation has fuelled the Labor opposition’s demands for the Attorney-General’s resignation on grounds he misled parliament.  Brandis, has responded in kind, by attacking Gleeson for breaching professional confidences and playing politics behind his master’s back.

What is the public to make of this argument between the mightiest government lawyers in the land? The fate of the direction seems sealed. Most commentators expect the Senate will disallow the direction when it next meets. Who will prevail in the case of Gleeson versus Brandis is less certain[3]. Regardless of whom you believe, it is clear the relationship between the first law officer and the second law officer is broken. This must be a source of acute anxiety in the government legal branches. For their sake one hopes for a negotiated settlement in which one of the law officers quietly exits stage left.

On another level, we might pause to think about what these proceedings say about the relationship between law and politics in our democracy. Gleeson gave the Committee a frank and pragmatic insight into the challenges of providing legal advice to government on policy questions. Government lawyers, he pointed out are expected to balance their commitment to the rule of law and also strive to accommodate the policy agendas of then day. Sometimes these demands are in conflict and the government lawyer has to give the bad news that a particular policy cannot be legally pursued. The Solicitor-General’s political superiors then face a choice whether to follow that advice or not.

What Gleeson’s did not say explicitly was that politicians also have another choice: to shop around for advisors who are willing to provide an interpretation of the law more supportive of government policy. The Solicitor-General doesn’t have a monopoly on important government legal advice and the Attorney-General can go elsewhere if he chooses. There is some evidence that opinion shopping has occurred on such important issues as Australia’s commitment to the Iraq war and the constitutional meaning of “marriage” in the context of the same sex marriage case. This should trouble the legal profession and indeed anyone who values the rule of law. If law is a commodity to be traded for short term political gain then what is there to distinguish government legal advisors from politicians? Looking at the art of Daumier the answer might well be nothing!

[1] Quoted in Harold F. Porter, Jr. “Behind the Satire: A Lawyer Looks at Daumier” 44 (6) American Bar Association Journal 530

[2] Submissions received by committee: see Submissions of associate Gabrielle Appleby and Dr Gavin Griffith SC.

[3] Justin Gleeson announced his resignation on Monday, 24 October 2016.