George Brandis has appointed constitutional lawyer Stephen Donaghue as solicitor general, seven weeks after the former solicitor general Justin Gleeson resigned citing an irretrievably broken relationship with the attorney general.
A constitutional lawyer with specialties including migration and extradition, Donaghue acted as counsel assisting the royal commission into the building and construction industry and counsel for Asio in the Clarke inquiry into the case of Dr Mohammad Haneef, an Indian-born doctor falsely accused of helping terrorists.
“Dr Donaghue is a distinguished constitutional lawyer and has frequently appeared as senior counsel before the high court of Australia in constitutional and other public law cases,” Brandis said. “His practice has involved complex and high-profile matters across a broad range of legal areas.”
Donaghue was admitted to the Victorian Bar in 2001 and holds a doctorate of philosophy from Oxford University, and a bachelor of laws (first class honours) and bachelor of arts from the University of Melbourne. His appointment will begin on 16 January for a period of five years.
The professional relationship breakdown between Brandis and Gleeson first came to light over a legal direction by Brandis which stated that Gleeson must seek permission from the attorney general before giving legal advice to a government department.
Gleeson objected to the legal direction because as the government’s key legal adviser, second only to the attorney, it prevented him from giving urgent legal advice. Brandis asserted that he had consulted Gleeson over the direction – a claim Gleeson denied.
The tension was further inflamed after the Senate established an inquiry to examine the matter and when Gleeson gave evidence, he refused to back down in the face of aggressive questioning from Coalition senators.
The opposition-dominated Senate inquiry report found Brandis lacked the competence to be attorney general.
After Gleeson’s resignation, reports in the West Australian alleged the attorney general instructed Gleeson not to run a particular argument in the high court over creditors for the collapsed Bell Group. Brandis denied the claim in a statement to the Senate.
Labor welcomes appointment of new Solocitor-General Stephen Donaghue QC. Let's hope he is treated far better than his predecessor.
— Mark Dreyfus (@markdreyfusQCMP) December 14, 2016
Stuart Clark, president of the Law Council of Australia welcomed Donaghue’s appointment, saying he was renowned in the legal profession.
“The Office of the Solicitor General plays a vital role in assisting ministers and agencies to comply with the rule of law and to discharge their functions in accordance with the constraints of the law,” Clark said. “Frank, fearless and independent advice is critical to the proper operation of government.
“The Law Council has every confidence in the ability of Stephen Donaghue QC to provide the impartial advice that the position demands.”
Anne Twomey, professor of law at the University of Sydney, described Donaghue as a highly qualified and experienced lawyer.
“He has appeared in most of the recent important high court cases in the area of constitutional law, including Plaintiff M68 (re Nauru detention centre), Williams No 2 (re the school chaplains), CPCF (re the turn-back of a boat to India) and AEC v Johnson (re the validity of the 2013 WA Senate election after the ballots were lost),” Twomey said in a statement. “The Commonwealth is very fortunate to have him.”
George Williams, the Anthony Mason Professor of Law at the University of NSW, said Donaghue was a “very fine choice and cannot be faulted”.
“He is rightly regarded as a leading constitutional lawyer in Australia, and has been sought after for many years as an adviser and advocate,” Williams said. “This is a strong, apolitical appointment that should be applauded.”
