The solicitor general, Justin Gleeson, has revealed he has ignored George Brandis’s direction to seek consent before giving legal advice because he regards it as invalid.
In May, Brandis issued an order requiring the solicitor general’s advice to go through his office first. In a parliamentary committee hearing on Friday, Gleeson labelled it a “radical change in practice” that made his role “exceptionally difficult” and caused him to “lie awake at night”.
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.
In his opening statement, Brandis rejected the view the direction prevented Gleeson giving the urgent advice. He criticised him for disclosing it in the committee and for discussing the direction with the shadow attorney general during the caretaker period.
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.
The solicitor general revealed that on Thursday a senior lawyer in the agency of 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 said. 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 because it was urgent and acknowledged Brandis could seek an injunction to prevent him doing so.
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 shadow attorney general, Mark Dreyfus, in June 2016 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 he believed Law Officers Act meant he had a legal duty to answer Dreyfus. 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.
Brandis said the first he became aware of Gleeson’s discussion with Dreyfus was at Friday’s committee hearing.
“[Gleeson] did not tell me he had [this] critical conversation ... I consider that he ought to have done so and I am shocked he did not.
“Even if on some construction he didn’t do the wrong thing [by speaking to Dreyfus] – no explanation was offered or is possible for why he did not to disclose that fact to the government.”
The attorney general said Gleeson should have sought consent before revealing the request for urgent advice about the composition of the Senate.
He rejected Gleeson’s view the direction prevented him giving the urgent advice because Gleeson had recognised the questions came from Brandis so the suggestion “that he was constrained or delayed [in providing advice] is unmaintainable”.
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.
Brandis rejected Gleeson’s view, because he wrote to him about the controversy on 16 August, after the election. He said he was “disappointed” the solicitor general had not yet responded.
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 rejected hypotheticals of that nature, saying it would be “inconceivable” an attorney general would deny a request for advice from the prime minister or governor general.
Brandis maintains he did consult Gleeson at a meeting on 30 November about the substance of the procedure for providing advice, if not the form of the legal direction which was nevertheless “identical” to a guidance note that was discussed.
Gleeson said the attorney general did not seek the solicitor general’s opinion about the binding direction before he made it.
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.
Brandis said the immigration minister, Peter Dutton, had carriage of the citizenship bill but the pair were not able to agree on it. The frequent legal advice sought reflected “the to and fro within the government as to what the features of the bill should be”, Brandis said.
Gleeson said 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.
