The Senate should tear up a controversial directive that gives George Brandis veto over government requests for legal advice from the solicitor general, the shadow attorney general, Mark Dreyfus, and the Greens say.
Dreyfus has also called on the attorney general to explain why he went “opinion shopping” for advice from counsel other than the solicitor general on important legal questions.
The controversy about the circumstances around Brandis’s directive and whether he properly consulted the second legal officer, Justin Gleeson, is the subject of a Senate committee inquiry.
Guardian Australia understands the Senate standing committee on legal and constitutional affairs has asked for extra hearings.
Labor has already indicated it wants the attorney general’s department secretary, Chris Moraitis, to appear and will push next week for Gleeson himself to appear. It will extend an invitation to Brandis in a move that would extend their public spat over consultation on key bills and the directive.
Dreyfus said the directive that allowed Brandis to veto whether the solicitor general provided advice was “wrong”.
“The Senate should, and I’m pretty certain will, disallow it,” he said.
Dreyfus argued the directive would have a chilling effect in discouraging other ministers or departments seeking legal advice and it would be problematic to require the attorney general’s consent for advice on politically contentious matters during the caretaker period or a hung parliament.
According to Gleeson’s submission to the inquiry, the Law Officers Act allows him to provide advice when he is “acting as counsel” without consent from the attorney general.
Dreyfus suggested the directive might be unlawful to the extent it was inconsistent with the act.
The Labor senator Penny Wong has already given notice of a motion to disallow the directive but it will not be voted on until the inquiry concludes on 8 November.
Dreyfus said the committee should ask Brandis about his “extraordinary frayed relationship with the solicitor general”.
He cited the solicitor general’s submission to the inquiry which revealed the government did not seek his counsel in an orderly way on sensitive legal proposals, including whether its contentious policy to revoke citizenship for dual nationals was constitutional and the legal mechanisms proposed to pursue marriage equality.
Dreyfus said Gleeson’s evidence showed Brandis had misrepresented the solicitor general’s advice by seeking his advice on an earlier version of the bill and then quoting the advice as if he had been consulted on the final version put to parliament.
Brandis has said the solicitor general was consulted “from time to time” on citizenship laws. He contends the breadth of consultations with Gleeson was sufficient to validate a claim he made to the Labor party that Gleeson had advised the package had a good prospect of clearing the high court.
On Friday, Fairfax Media reported that Brandis sought advice from the former solicitor general David Bennett on the same-sex marriage plebiscite after rejecting advice from Gleeson.
Dreyfus said Brandis should explain why he chose not to get advice from the solicitor general in those instances.
“On matters of serious importance such as contentious bills, where there are serious doubts of constitutionality or major financial claims against the commonwealth, these are big matters and the attorney general should always go to the solicitor-general for advice,” he said.
The Greens senator Nick McKim said “the directive should be disallowed, as it is a blatant attempt by Senator Brandis to control access to the solicitor-general”.
“I believe that the committee should be allowed to complete its work and that it would benefit greatly from hearing from both Mr Gleeson and Senator Brandis.”
McKim said Brandis needed to explain “why he has sidelined the solicitor general and gone shopping for external advice ... how many times he has done this and exactly how much it has cost”.
Guardian Australia has contacted Brandis for comment.
In response to another report a spokesman for Senator Brandis said: “It is not the practice of the commonwealth to comment on the fact of, or the content of legal advice.”
In an interview on Thursday Brandis insisted his relationship with the solicitor-general remained functional.
He said he had never had “a cross word” with Gleeson, and could continue to work with him, despite their relationship deteriorating into a public slanging match.
