Brandis-Gleeson stoush: the summary
This is what we know, that we did not know this morning.
- The solicitor general, Justin Gleeson, believes the legal services direction that all requests come through the attorney general was invalid and had already ignored it.
- Brandis denied that Gleeson had ignored the direction because the matter Gleeson acted on came directly from Brandis. Therefore he did not need Brandis’s consent.
- Brandis said Gleeson disclosed this advice – which related to the composition of the Senate – without Brandis’s consent, a fact which left the AG “astonished”.
- Gleeson had a conversation with Labor’s shadow attorney general, Mark Dreyfus, during the caretaker period in the election campaign and told him he did not agree with the legal services direction and was not consulted.
- Brandis said Gleeson should have informed him of his conversation with Dreyfus when it happened, even if he thought it was the right thing today – which Brandis disputed. Brandis said Gleeson should have sought permission to speak to Dreyfus during the election period.
We are going over old ground here. This ground has been well and truly ploughed. Ian Macdonald had his last go. Greens senator Nick McKim has his last questions.
So I need to pull up too.
Thanks to Paul Karp and Gareth Hutchens. Also thanks to Mike Bowers and Katharine Murphy for coming in on their days off in order for me to bring you the blog.
Goodnight and see you bright and early on Monday morning.
Updated
Brandis has talked about why the citizenship bill in question changed a number of times.
The bill related to removing citizenship from sole citizens over terrorism suspects. It is contentious in this committee because while Gleeson gave advice on the earlier draft, he had drawn a different conclusion on later drafts. He objected to Brandis using his earlier opinion – that the bill would withstand high court challenge – when the bill had been changed since that time.
Brandis has told the committee this afternoon the bill had to change a number of times because the then prime minister, Tony Abbott, wanted Peter Dutton and George Brandis on the same page.
But Dutton and Brandis were at odds and the cabinet was split, as shown in Peter Hartcher and James Massola’s story in May last year.
Updated
This is Dreyfus’s statement:
Today’s Senate inquiry has put beyond doubt that Senator Brandis has destroyed the integrity of the office of the solicitor general and knowingly misled the Senate. He must resign.
Senator Brandis – through his own inexcusable actions – has made his own position untenable.
If he does not resign, then prime minister Turnbull must live by the standard he has set himself and sack him.
Solicitor general Justin Gleeson, in an appearance at the Senate committee today, could not have been clearer in establishing the following facts:
- Senator Brandis’s statement to parliament that the solicitor general was consulted about the legal services direction “was not an accurate statement”;
- He was not consulted, in any way, about the legal services direction that was issued on 4 May;
- Senator Brandis said he had received Mr Gleeson’s advice on the constitutionality of the final version of the Australian citizenship amendment (allegiance to Australia) bill 2015 when in fact he had not;
- Mr Gleeson’s ability to do his job, without impediment or interference, has been severely compromised.
Senator Brandis has now, on repeated occasions, knowingly misled the Senate with his statements that he had in fact consulted the solicitor general. After today’s Senate hearing we now know, beyond doubt, that is not true.
Updated
Dreyfus confirmed he had a conversation with Gleeson during the caretaker period.
Brandis says (in his mind) when he “consulted” Gleeson, he had not decided to implement the LSD (legal services direction).
Mark Dreyfus is speaking, calling for Brandis to resign.
He described LNP senators’ behaviour towards Gleeson as:
extraordinary, disrespectful, rude conduct.
Dreyfus said it was inappropriate behaviour towards senior statutory office holders.
He called on Turnbull to make it clear to the senators it was inappropriate.
Updated
AG Brandis uses one of his books-Matters for Judgement by John Kerr during evidence @gabriellechan @GuardianAus pic.twitter.com/V8cIAljjPD
— Mikearoo (@mpbowers) October 14, 2016
Brandis says there is an obligation on every legal practitioner, solicitors or barristers, not to disclose advice.
Even if there is some “construction” from Gleeson for talking to Mark Dreyfus during an election campaign, Brandis says there is no excuse for not telling Brandis.
He says Gleeson should have sought Brandis’ consent first and if Gleeson thought he was obligated to talk to Dreyfus, Gleeson should have recommended to Brandis that the AG allow it.
Brandis said he may have sought advice and may well have allowed the conversation to take place.
Updated
Reynolds again complains about the treatment of Brandis by Watt.
Brandis again steps in and says he is fine. He notes Watt was very polite to Gleeson but:
If you want to be rude to me, go right ahead.
Murray Watt just questioned why the secretary of the department, Chris Moraitis, did not appear. I missed the comment but general outrage ensued and Watt withdrew – given Moraitis had requested leave some time before.
Updated
Watts says former SG Griffiths, the current SG Gleeson and Sir Anthony Mason disagree with the direction at issue.
Brandis says as a lawyer “all of my adult life” he understands lawyers have different views about different contestable issues.
Only in the high court, does the majority rule.
Updated
Senator Reynolds wants to pull up Murray Watts who is the most combative for Labor. Brandis tells Reynolds,
Oh senators I don’t mind...
Updated
George Brandis on the Mark Dreyfus conversation:
Just as Mr Gleeson didn’t want to reflect on me, I don’t want to reflect on him, but I do say that it is very surprising that the solicitor general should have had a conversation with one of the government’s principal political enemies in the middle of an election campaign without advising the government that he had done so.
I listened carefully to his reasons why he thought it was appropriate for him to speak to Mr Dreyfus and I don’t necessarily disagree with him. I reserve my position on that until I have the opportunity to reflect more carefully. But I cannot begin to understand why Mr Gleeson did not reveal that fact to me.
Updated
Macdonald asks whether he spoke to the media about the matter. Brandis says before the story appeared in the media he did not speak to the media about it.
Then he may have responded to the media after that, on or off the record.
There was a letter leaked to the Financial Review’s Laura Tingle. Brandis says he was satisfied the letter was not leaked from his office and the AG’s secretary of the department confirmed to him that the letter had not been leaked from the department.
The only other place that would have seen the letter was the SG’s office.
Updated
Now Watt gets stuck in.
Senator Brandis, why you are treating Australia’s solicitor general as a dog on a lead?
Brandis:
Do you have a serious question?
LNP senator O’Sullivan asks for Watt’s question to be withdrawn.
Updated
AG Brandis says all allegations he's misled the Senate have been without foundation #BrandisGleeson @abcnews pic.twitter.com/yS4RbuQ3Gc
— Matthew Doran (@MattDoran91) October 14, 2016
Under questioning from Watt, Brandis says it would be inconceivable that Brandis as AG would not allow the governor general to seek legal advice in any dispute between the GG and the PM.
So even in 1975 at the crescendo of the crisis, the legal advice ... provided to Sir John Kerr was jointly signed from the attorney general and the solicitor general.
#BrandisGleeson pic.twitter.com/V5rpuoKEpp
— Adam Gartrell (@adamgartrell) October 14, 2016
Updated
Brandis says he has talked to lawyers about his appearance but does not know if it constitutes legal advice.
He considers the independence of the SG important.
Updated
Watt goes through Brandis’s CV, which is not as long and distinguished as Gleeson’s. Brandis acknowledges that and says he does not hold himself out as more experienced.
I have been the subject of many accusations senator Watt.
Updated
Chair Pratt notes Brandis has now spoken for 40 minutes. He will provide the opening statement to committee members.
Murray Watt opens and congratulates him on an “opening short statement of obfuscation”.
Brandis notes Mark Dreyfus has asked for advice from other sources during his time as AG (contained in the Appleby book on the solicitor general). He quotes Dreyfus:
Despite the fact that I say that the solicitor general has got a higher status, she or he is still just a barrister.
Updated
Sabra Lane of the 7.30 Report.
BTW: the directive is a 'dis-allowable' instrument; the Senate can over-rule it, + probably will when the committee reports #BrandisGleeson
— Sabra Lane (@SabraLane) October 14, 2016
We are on to volume 22 of the attorney’s opening statement.
Justin Gleeson SC is the most impressive witness I have seen at a Senate hearing. Masterclass of integrity. #BrandisGleeson
— Sam Dastyari (@samdastyari) October 14, 2016
Brandis gives an example of the processes around former attorney general Mark Dreyfus regarding a regulation.
He says the requirement of consultation was fulfilled by Dreyfus through contact between the AG’s department and the department of finance “by way of email and telephone exchange”.
He says that was fine and no one suggested there should be an inquiry into that.
Brandis calls the present inquiry “a bizarre waste of time and money”.
So George Brandis continues....my learned friends.
Chair Louise Pratt tries to wind him up but he insists on delivering his whole statement (given questioners will have less time).
The consultation that occurred on November 30 was about “substance not form”, says Brandis.
For example, what processes should be in place, rather than the form (of the direction).
The person doing the consulting seeks the views of people and then decides on the course of action.
When one consults someone, one asks their advice...that is what I mean when I use the word consult.
Brandis uses the Oxford Dictionary and gives a copy of the definition to all the committee members.
I think we’re right.
The whole dispute boils down to the definition of consultation, says Brandis. Under the law, Brandis says, it is up to “the rule maker” to determine the consultation.
That is, moi.
A-G says he didnt respond to S-G's letter of complaint during election campaign because govt was in caretaker mode. Delegated to Dept sec.
— Karen Middleton (@KarenMMiddleton) October 14, 2016
Brandis denies the fact that he refused to engage with Gleeson on the direction. He says he wrote in August this year to Gleeson.
The attorney general stands by every word of his submission and every statement he has made (including in the Senate).
Updated
Brandis says Gleeson was not constrained by his direction on recent advice
Brandis says Gleeson was not constrained by his direction on recent advice because the request had come from Brandis himself.
(Which would suggest he did not go to Brandis for permission.)
These were questions relating to the composition of the Senate. Brandis said in an email Gleeson had said he was “content” with the questions.
(Which would suggest he was happy to go ahead.)
Updated
Brandis: Gleeson should have sought permission to reveal advice
Gleeson did not seek Brandis consent that advice on the composition of the Senate had been sought within the government.
Brandis said he should have sought advice.
Updated
Brandis: Gleeson should have told him he spoke to Mark Dreyfus
George Brandis is up now.
He says Gleeson should have told him about his conversation with Mark Dreyfus.
Brandis says he is shocked by the conversation.
I cannot imagine why Mr Gleeson chose not to reveal his dealings with the opposition.
Updated
Updated
Updated
Updated
The solicitor general, Justin Gleeson, has revealed he has ignored George Brandis’s direction to seek consent before giving legal advice because he regarded it as invalid.
In a parliamentary committee hearing on Friday, Gleeson said he had decided to ignore the direction in order to give urgent legal advice about the composition of the Senate sought from him this week.
He also revealed that the prime minister had sought advice from him in January which was confidential and did not go through the attorney general. Gleeson did not reveal the legal issue in question but raised it as an example where seeking Brandis’s consent would not be appropriate.
In a fiery committee hearing the deputy chair, Ian Macdonald, cut off Gleeson’s answers and subjected him to aggressive questions about why he had revealed disagreements with the attorney general about legal advice and told the shadow attorney general he had not been consulted about the direction.
Gleeson described Brandis’s direction as “a radical change in practice” that had caused him to “lie awake at night” since it was made on 5 May. The direction made running his office “exceptionally difficult”, and imposed a condition on him not faced by any solicitor general for 100 years, he said.
He also revealed that on Thursday a senior lawyer in the Australian government solicitor sought urgent advice about the composition of the Senate. The request contained questions raised by the attorney general but was not accompanied with consent.
“Yesterday I was faced with situation where I would have to say ‘Go away – you don’t have a consent,’ ” he said.
“I have come to the view that the direction is invalid.”
He explained it prevented him from giving legal advice to other parts of the commonwealth government when acting as counsel, a duty under the Law Officers Act, without the attorney general’s consent.
Gleeson said he decided to meet the AGS lawyer in defiance of the direction to begin work on a legal opinion, as the matter was urgent and that is what an efficient counsel would do.
He acknowledged that ignoring the direction could result in Brandis seeking an injunction to prevent him providing advice without consent. The direction is likely to be struck down by the Senate after 8 November, when the committee reports.
The solicitor general revealed that when contacted by the shadow attorney general, Mark Dreyfus, in June during the caretaker period, Gleeson said that he believed he had not been consulted about the direction and he did not agree with it.
Gleeson said the Law Officers Act meant he had a legal duty to do so. It was proper because the direction was a major policy decision, had required Brandis to certify he had consulted Gleeson, and Gleeson had already warned he did not believe he had been.
Gleeson said that he wrote to the attorney general and his department before the election to have the direction withdrawn but Brandis said he would not discuss it until after the election.
“The attorney general has refused to engage with me on this topic despite knowing my concerns,” he said, adding one would expect a substantive response.
If the 2 July election had produced a hung parliament, the direction would mean the second law officer would need to seek consent from the attorney general before giving advice to the governor general, Gleeson said.
Brandis maintains that he did consult Gleeson at a meeting on 30 November at which the pair discussed the procedure for providing advice, but Gleeson said the attorney general did not seek the solicitor general’s opinion before making the binding direction.
Gleeson testified that a public statement Brandis made about the constitutionality of the government’s citizenship bill neglected to include his qualifications to the opinion, and quoted his advice on an earlier version of the bill, not the one presented to parliament.
“The bill, as introduced on 23 June [2015] … contained two elements I had never been asked to advise on: about ministerial discretion, and the abolition of any requirement of natural justice,” he said.
Gleeson explained that constitutional advice should be sought from the solicitor general because he or she has access to confidential legal advice provided to the commonwealth over a century and would have to defend legislation in court.
Updated
Gleeson says he has tried to talk to the AG about the matter.
After the election, Gleeson wrote on 16 July to Brandis and received no response.
The attorney general has refused to engage with me on this topic despite knowing the detail of my concerns.
O’Sullivan says given Gleeson has tried to avoid politics, he must have known by talking to Dreyfus he would create “a political shit storm”.
Chaos ensues.
Gleeson says:
I thought the right thing to do was to answer honestly that question.
(Here is the difference between traditional bureaucracy and modern politics. And this whole exercise must chill young public servants to the bone.)
The committee breaks.
Updated
I will do a summary in the short break between Gleeson and Brandis, which was due over an hour ago.
O’Sullivan asks about “human interaction” with Gleeson over the past weeks.
Gleeson says people have made comments about the matter but any questions on that would be outside the terms of reference of the inquiry.
O’Sullivan wants to know if any inquiries to him were from MPs or the media.
No and no.
Gleeson says he rarely speaks to opposition members. We are back to the Dreyfus conversation.
O’Sullivan wants to know if he made a similar inquiry to Gleeson on a matter in the agriculture department, would Gleeson give him an answer?
Gleeson says its a different situation.
Hectorer-in-chief.
Updated
Profs galore:
After a while the whole #BrandisGleeson hearing just depresses. Why did it come to this? Is this a fight the govt needed to have? #auslaw
— Prof Andrew Lynch (@AndrewLynchUNSW) October 14, 2016
#BrandisGleeson via @deaf_soundo #auspol pic.twitter.com/CieAPpsB8N
— Stephanie Anderson (@stephanieando) October 14, 2016
After argy bargy, we get back to questions.
Gleeson says he did not discuss with Brandis any evidence he would give today.
(If the senators are too combative, they take up their time to ask questions.)
Sam Dastyari speaks!
O’Sullivan:
You should go back to China!
On to LNP senator Barry O’Sullivan.
O’Sullivan asks why Gleeson’s example of providing advice to the prime minister in the past few days is a breach.
He asks if Gleeson sought advice from his “client” – the government – if he could reveal that advice.
Gleeson says he does not regard anything he has said as inconsistent with his duties.
The chair is defending Gleeson and O’Sullivan accuses Louise Pratt of a cover-up.
Updated
Gleeson takes issue with questions from Labor too. He doesn’t want to give “evaluative assessment” of the matter.
Watt asks if Brandis’s statement to parliament that he had consulted Gleeson in their 30 November 2015 meeting was correct?
Gleeson says he doesn’t want to answer due to the controversy.
Gleeson tells the committee he asked the secretary and deputy secretary of AG’s department why he wasn’t consulted but notes that he did not “understand” their reasons.
He said he was told by the deputy secretary that if there was to be consultation it was to be between the AG and and the SG.
It never occurred.
Essentially Gleeson says he was told by the secretary and the deputy secretary that it was up to the AG to consult with the SG.
Updated
Gleeson says he heard about the new direction on 4 May 2016, after it was issued on the same day. He wrote on 24 May to the secretary of the AG’s department stating he disagreed because broadly:
- there was not the consultation required by the statute
- it would change the way the office of SG was conducted
- raised concerns about parts of the guidance note not relevant to this committee.
Updated
Over at the House of Representatives’ standing committee on economics, officials from the Australian Prudential Regulation Authority are being interrogated.
Wayne Byres, Apra’s chairman, told the committee how difficult it was to attract and keep talent with the wages Apra can afford to pay.
He said people often come to work for the regulator for the experience, but leave for jobs in the private sector where wages are much higher.
He said Apra tries to benchmark its pay to the 25th percentile of the average pay in the financial system, then make up the difference with a range of other benefits, including work-life balance.
But it still loses more than 90% of its people to the private system.
He said the government did provide Apra with extra funding in the last budget to help it improve its data system and analytical capacity, but the problem of wages remains.
Updated
Professor of international law, Sydney Uni:
Sen Ian Macdonald suggests advice of Commonwealth Solicitors-General is not 'real law' #BrandisGleeson #auslaw #auspol
— Tim Stephens (@ProfTimStephens) October 14, 2016
Gleeson goes to the meeting of 30 November last year between Brandis and Gleeson.
He says there was no talk of a new legal services direction at that meeting and he says he would have told him he did not think it was a lawful direction.
Gleeson says if he had been told Brandis was considering a new direction and what was going to be in it, the matter would have developed very differently.
Updated
Professors of law coming out to decry Gleeson’s treatment in the committee:
Shameful hectoring of the SG by Senator MacDonald #BrandisGleeson
— Prof Andrew Lynch (@AndrewLynchUNSW) October 14, 2016
Again thanks to Matt from the ABC:
Solicitor-General Justin Gleeson on his concerns for his office's independence#BrandisGleeson @abcnews pic.twitter.com/zTvJbUq2SQ
— Matthew Doran (@MattDoran91) October 14, 2016
Thanks to Matt for this explosive interchange:
And another one...#BrandisGleeson @abcnews pic.twitter.com/9MTgIysAPd
— Matthew Doran (@MattDoran91) October 14, 2016
This is from Justin Gleeson earlier and summarises his position on this matter:
It is a radical change in the practice whereby a solicitor general can do nothing, cannot even speak to a lawyer, until he has received a brief with a signed consent. Do I lie awake at night worrying about it? I have every night since 5 May, trying to determine how this could have come about and what is the correct way to try and respond to and remedy this situation.
Updated
Just re the argument with Reynolds over the caretaker conventions for statutory authorities such as the SG.
This is from the Department of Prime Minister and Cabinet:
1.6 The conventions and practices have developed primarily in the context of the relationship between ministers* and their departments (and, by extension since the commencement of the Public Service Act 1999, executive agencies). The relationship between ministers and other bodies, such as statutory authorities and government companies, varies from body to body. However, those bodies should observe the conventions and practices unless to do so would conflict with their legal obligations or compelling organisational requirements.
Updated
SG Gleeson on why he called the November 30 meeting with AG Brandis.#BrandisGleeson @abcnews pic.twitter.com/UCD9SGNDvT
— Matthew Doran (@MattDoran91) October 14, 2016
Some LNP Senators need schooling in the basics of Australia's constitutional system #BrandisGleeson #auspol #auslaw
— Tim Stephens (@ProfTimStephens) October 14, 2016
The chair, Louise Pratt, notes the hearing is running over time and Brandis will have to be told he will appear 30 minutes later.
Updated
Reynolds asserts that the SG is subject to the caretaker provisions.
Gleeson: is that a question or an answer?
Reynolds: please let me finish answering the question?
Watt: so you are answering a question?
Gleeson says his primary duty is to the statute and to be impartial during the caretaker period before the election. He says there has never been a time in history where an AG has made a statement to parliament the SG believes is inaccurate and then the parliament is dissolved.
He is trying to outline the history and the complexities.
Reynolds: Oh please.
Macdonald suggests if Gleeson wants to get into politics he should run for parliament.
Gleeson asks for his statement to be withdrawn as it was offensive.
Updated
In other news:
Before the Trump haters get too excited, some of his views are OTT but cutting tax and boosting defence are classic conservatism
— Tony Abbott (@TonyAbbottMHR) October 14, 2016
From AAP:
The prime minister, Malcolm Turnbull, is confident the stoush between the attorney general and the solicitor general will be resolved eventually.
As a Senate committee began an inquiry hearing into the public dispute between George Brandis and Justin Gleeson over controversial new legal advice rules, Turnbull stressed the two were a team.
“They support each other,” he said on Friday.
“I am sure whatever differences or misunderstandings will be resolved.”
Turnbull said it was important to remember the attorney general was the first law officer to whom even he would turn for advice in the first place.
It was always appropriate for a prime minister to consult the attorney general about seeking counsel from the second law officer.
“It is inconceivable that the attorney general would say, ‘No, I don’t want you to seek the advice of the solicitor general,’ ” Turnbull said.
Updated
Gleeson said what he told Dreyfus was a question of fact (that he had not been consulted by Brandis on the direction) and a question of opinion (that he did not agree with it).
Gleeson goes through it again with Reynolds.
He says on 6 May Brandis made a statement to the parliament that was inaccurate.
He says only two people knew that was inaccurate: him and Brandis.
He had to comply with the law of Australia.
Gleeson said he was asked by Dreyfus two questions which he considered it was lawful to answer.
Updated
Gleeson counters, saying he had written to the AG to say his statement was not accurate.
Gleeson considered as Dreyfus was a member of the 44th parliament to which the Brandis statement had been made, he was able to answer the two questions Dreyfus had asked.
Reynolds wants to know under which rules he could talk to an opposition member.
Gleeson he sent the full account to the secretary of the AG’s department. He quotes the section of the act.
Reynolds wants to question further but Gleeson asks her not to interrupt his answer.
The Liberal members accuse the chair of stopping them asking questions.
Updated
Liberal senator Linda Reynolds has been sent in to ask about the Dreyfus-Gleeson conversation. She points out it was in the caretaker mode in June, ahead of the election.
Back to Labor now and Murray Watt asks about a meeting between Gleeson and Brandis. This goes to a difference on the citizenship bill that precipitated the present stoush.
Gleeson gave an opinion on the citizenship bill in a draft form.
Brandis subsequently used that opinion about the bill in parliament.
Gleeson said that advice referred to an earlier draft.
They held a meeting to work out the difference and how it might not happen again.
Updated
It is extraordinary how abusive Ian Macdonald has been to Justin Gleeson. Gleeson is not taking a backwards step but it is extraordinary behaviour from a government senator, presumably workshopped and prepped on behalf of his party.
Updated
Macdonald asks if it is appropriate to speak to anyone other than his client (being the AG).
Gleeson says on the matter of the regulation, he is representing the commonwealth.
Macdonald then asks he if knows how Financial Review journalist Laura Tingle wrote a “very informative article” about this matter.
Gleeson says no.
Macdonald asks if Gleeson has spoken to anyone else about the matter since November 2015.
He says he has spoken to George Brandis. He has also spoken to Mark Dreyfus in a brief conversation.
He says the Labor shadow attorney general contacted him and asked:
Had I been consulted. I said no.
Did I support the direction? I said no.
Updated
Gleeson asks the committee to consider striking the reference to his daughter from the record, given that she is not involved at all.
Updated
Macdonald has now has drawn in law professor Gabrielle Appleby, who has written a book on the role of a solicitor general. Appleby has been supportive of the SG’s case. Macdonald draws in Gleeson’s daughter.
Professor Appleby, by the way, is a very good friend of your daughter’s, she told us in evidence the other day. Can I quote to you from her book ...
Updated
Macdonald wants to know who owns the advice.
Then he asks about whether he can talk about advice asked for by others, ie Gleeson mentioned the prime minister asking him for urgent advice.
Essentially Macdonald is trying to paint Gleeson as engaging in inappropriate behaviour by telling the committee about cases on which he has provided advice.
Gleeson keeps trying to answer and Macdonald fires up.
Please don’t interrupt me, says Gleeson.
You are here to answer questions not to go off on a tangent of your own. My question was: is it appropriate for you ... says Macdonald.
Senator Macdonald (calls the chair.)
Was it appropriate for you to tell the world, true a Senate committee which you knew politically would end up in this, that had given advice on same-sex marriage and the Migration Act, is that appropriate? Macdonald asks …
I don’t accept the premises of your question. My conduct was appropriate. I will explain why if you wish to allow me ...
Macdonald is called to behave by the chair.
Senator MacDonald. Pause for a moment. I need to remind you of privilege resolution one. Your dealings with witnesses need to be conducted with respect and courtesy, says the chair, Pratt.
I always give witnesses the respect they deserve, madam chair.
There is an audible gasp from the room.
Updated
Senator Ian Macdonald is being very combative. Gleeson fires back. Macdonald wants to know whether he is a barrister. Gleeson tries to answer and Macdonald is essentially badgering the witness.
Gleeson:
You’re interrupting me.
Macdonald:
Oh spare me. You have agreed to appear to answer questions.
Updated
SG calls Brandis direction 'radical' and he has ignored it
Gleeson lets loose. He had a case yesterday where he could not action an urgent advice for a senior government lawyer.
He says the direction is unprecedented.
What is currently contained in the direction issued on 4 May has never previously existed between attorney general and solicitor general in Australia since 1916.
It is a radical change in the practice, whereby a solicitor general can do nothing, cannot even speak to a lawyer until he has received a brief with a signed consent.
If I may explain why there is such a radical change, a senior lawyer from the Australian government came to my office yesterday, seeking my urgent advice on a high court proceeding which has questions of law attached to it, which relates to the composition of this Senate.
Essentially Gleeson says he ignored the Brandis direction in order to carry out his duties.
Updated
In the more unusual cases, the SG provides advice directly such as this one Gleeson outlined:
I was requested by the PM in January of this year to provide advice on a matter which I won’t mention but a matter which was relevant to this nation this year. I accepted that request for advice under section 12A. I provided the advice confidentially to the PM. As far as I know a copy of that advice sits only in my files and the PM’s office. The PM may have shared that advice with the attorney general. I am not aware whether he did or didn’t.
Updated
Gleeson is asked to describe the arrangements before the Brandis change of regulation.
It was a “triaging” operation.
Through that process, I identified if the matter was worthy of an opinion, I wrote a brief letter to the attorney general to inform him for the reasons I have mentioned earlier, that I was proposing to provide that opinion. In most cases, with very few exceptions, I received no answer from the attorney general. I took his silence as consent. In most cases, I provided a copy of that opinion to him, so he had the ability to consider whether he regarded it as a correct one or not.
Updated
Gleeson makes the point that the SG is independent, the independence is in the statute, that should not be messed with, but the AG has to take responsibility for everything done by the SG and every other government lawyer.
The position I see the attorney general in is one where we should be having a complementary relationship to assist the executive and occasionally the parliament to remain within the rule of law.
Updated
Gleeson says it is the SG who spends all day every day considering advice and the AG does not have that luxury of time but the AG is responsible to the parliament.
He says as a result, sometimes the SG’s opinion is regarded by an AG as incorrect.
It is unusual but it happens, he says. When it does, the AG can countermand the SG’s opinion. That becomes the legal opinion of the government followed by everyone including the SG until the high court says otherwise.
Gleeson says the solicitor does not always get it right and there are tensions in the process. Governments are usually policy-driven and “there is nothing wrong with that”.
Updated
Gleeson says it is “essential” the solicitor general maintains its independence. He names former solicitor generals.
One is always balancing a fundamental commitment to the rule of law with a desire to assist the executive of the day and occasionally the parliament with the rule of law.
Updated
Gleeson says he has a relationship with the attorney general but also a duty to the Australian people.
He has given about 120 written opinions.
Updated
Murray Watt for Labor opens the batting for Labor. He notes Gleeson was appointed in 2012. He outlines Gleeson’s appearances for the government, including in the whaling cases and the tobacco plain packaging laws, among others.
He is setting up Gleeson’s experience as the second law officer of the commonwealth.
Updated
Gleeson says apart from that, he won’t make a longer statement given that he has written a submission.
Updated
Gleeson is giving an opening statement. He is outlining his role as a statutory officer. He says, given his role, he believes he should have agreed to appear without compulsion.
Gleeson says he makes no request on appearing in camera. Macdonald, not happy :(
Gleeson is given his choice and he says it’s up to the committee.
I have nothing further to say on the matter.
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The LNP senator Ian Macdonald says he tried to have Gleeson and Brandis’ evidence in camera. But of course, the government does not control this committee.
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Protected by Parliamentary privilege only if you're physically in Australia. #stoush #BrandisGleeson
— Stephen Murray (@smurray38) October 13, 2016
Louise Pratt of Labor is the chair. She says some evidence may be held in camera.
We’re on! Rejoice!
The legal and constitutional affairs committee has just flashed on briefly before the feed goes off as it discusses whether to let the media in. Mike Bowers has gone in to clear the decks. *Awaits fireworks*
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A beginner's guide to the Brandis-Gleeson stoush
Before the Gleeson-Brandis dispute, I just want to reiterate the key points of difference in a nutshell and why they are appearing in the Senate committee.
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George Brandis instituted a regulation that says no one in government, including the prime minister, can seek the solicitor general Justin Gleeson’s advice without the attorney’s permission.
- Brandis told the Senate he consulted Gleeson in a conversation.
- Gleeson said the conversation did not constitute a consultation.
- Brandis said he and Gleeson had a difference of opinion as to what constitutes consultation.
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Malcolm Turnbull consulted his own department and agreed with Brandis.
- But Turnbull said he had confidence in both Brandis and Gleeson.
- Labor’s Mark Dreyfus has called for Brandis to resign for misleading the Senate.
- Brandis has said 10 out of 10 requests for advice from the solicitor general so far had been approved.
- Former solicitor general Gavan Griffiths likened the guidelines to a “dog on a lead”.
- Turnbull was not amused at Griffiths analogy, calling it “unfortunate”.
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Lastly Malcolm Turnbull comes to the plebiscite. He notes the bill is not through the house yet and mentions that “Labor has listed extra speakers”.
We are calling on the senators to support it.
This goes to the speculation around yesterday that the length of the plebiscite debate in the lower house was quite long given it was scheduled to go to the Senate on Wednesday. It is yet to be voted on in the lower house and now cannot go to the Senate until the week of 7 November, even if it does pass the house next week.
It is the practice with very controversial bills (where everyone may want to have a say) to shorten the speeches to allow for more speakers without holding up house business.
On a side note, just observing the debate yesterday, it did underline the fact this debate has been going on so long, pretty much every argument has been heard in the public domain on both sides. As Warren Entsch said months ago, funding a yes and no case for the plebiscite is completely unnecessary. If people haven’t made up their mind by now, they never will.
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Malcolm Turnbull goes to politicians’ “entitlements”. He wants to start by calling them something different, such as work expenses.
I think what used to happen in many years past was politicians were reluctant to increase their salaries and so compensated themselves by having more generous fringe benefits and perks of gold cards and that sort of thing.
It is much better to have a completely transparent system as is the case now and … everything is completely above board.
Now this was responding to a call from Andrew Wilkie and Cathy McGowan yesterday for reform and full implementation of the recommendations out of the Bronwyn Bishop Choppergate report.
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Malcolm Turnbull says he has full confidence in his financial services minister, Kelly O’Dwyer. And in his justice minister, Michael Keenan.
As one of the saints said, to err is human.
Neil suggests there is a perception of chaos around government.
Oh no there’s not, Neil, seriously.
The Labor party had a success because our guys weren’t paying attention … that is one of the few pleasures of opposition and I don’t begrudge Bill Shorten savouring.
He then notes all the government’s achievements this week, ergo tax cuts, Singapore trade deals, CFA legislation, etc etc.
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Malcolm Turnbull will not commit to the idea of linking home loans to the cash rate. This is the idea where the home loan is in “lockstep” with the cash rate, says Mitchell. The house economics committee, which grilled the bank chiefs, is considering the idea.
Turnbull explains the banks get funding from different sources, which make up the cost of lending. He says the banks have done a “woeful job” of explaining how the business works.
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Neil Mitchell notes the NSW parliament’s upper house has formally called Donald Trump a “revolting slug”. Malcolm Turnbull says he doesn’t think it’s a big deal and his focus is on government. Mitchell is exercised by Frydenberg’s comments as well. Turnbull is dead batting it in a barrister-ly way.
Neil says the real meaning of “dropkick” (Frydenberg’s word) is obscene. He is offended by the sound of it.
Turnbull is not going to buy into the American debate. He will buy into the American Congress’s view on the Trans Pacific Partnership. Support it, he says.
I suggest Mr Frydenberg look up what “dropkick” means, says Neil.
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Good morning, blogans.
I know I told you all #politicslive would be back next week but, hey, there is just too much around not to share it with you.
The main news dish is the attorney general’s appearance at the Senate legal and constitutional affairs committee over the dispute with the solicitor general, Justin Gleeson.
The solicitor general will appear at 10.30am followed by a short break and then George Brandis will appear at 12.30pm. He was due to appear earlier but he asked to appear slightly later, for reasons unknown. Things will wind up at 2.15pm.
But don’t despair, people. There are three other committees on. Malcolm Turnbull has been on radio with Neil Mitchell. I will have a full report but the bit I heard so far involves Turnbull refusing to carpet his energy minister, Josh Frydenberg, for calling Donald Trump a “dropkick”. In my mind, this would seem a perfectly reasonable thing to say.
And Tony Abbott has been out ahead of the NSW Liberal democratic convention, which is going to have full fireworks at the weekend.
You can speak to me on the Twits @gabriellechan or below in the comments thread. Feel free to ask any questions and I will endeavour to find an answer if I don’t know it.
TGIF.
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