Pressure mounts on George Brandis to salvage some honour in legal bunfight

Pressure is mounting on Attorney-General Senator George Brandis to withdraw the new regulation. Photo: Andrew Meares Justin Gleeson is universally admired for his keen legal mind. Photo: Alex Ellinghausen
Nanjing Night Net

 It may look like George Brandis is the last man standing, but there have been no winners and no positives in the public scrap between the Attorney-General and the Solicitor-General, Justin Gleeson.

It is tempting to think this problem is now resolved.

The latter has withdrawn, citing irreconcilable differences over a legal services direction (LSD) tabled by Brandis in the Senate in circumstances viewed by Gleeson as tantamount to an ambush.

That direction summarily ended the custom of the SG providing legal advice to other ministers, mandating instead that all future requests be ticked off by the AG himself.

In the wake of the Gleeson resignation, the opposition has called for Brandis’ scalp. Its main charge is that Brandis misled Parliament when tabling the LSD by claiming it had been formulated in consultation with Gleeson.

Gleeson has since denied this, prompting Brandis to roll out a legal backstop argument. In the end, he told a Senate inquiry the dispute between the two officers turned on a narrow definition of the word “consultation” (Gleeson’s) compared with a broader definition of the word (his).

Such vagueness is embarrassing and puts Brandis in “vibe” territory.

Either way, senior lawyers are aghast that a public disagreement going to probity has forced the resignation of a solicitor-general for the first time in 100 years.

The outgoing Gleeson is universally admired for his keen legal mind and for his adherence to proper process.

Attention has turned to a replacement and most particularly to the negative impact of this affair on the prestige and perceived independence of the office.

The Senate could strike out the LSD in any event, a prospect even government senators acknowledge as likely – perhaps desirable.

Within the law, however, pressure is mounting on Brandis to withdraw the new regulation to restore trust – to take the honourable course and accept that it had been an error and one over which procedural questions continue to hang.

If it is to be reinstituted, this must follow proper consultation with the new solicitor-general – as a matter of law.

That Malcolm Turnbull has kept Brandis is unremarkable, but the Attorney-General would be more vainglorious than even his critics suggest if he assumes his grip on the portfolio is not materially weakened.

Rather, he might show the profession, and the government, the common courtesy of displaying at least some contrition.

This story Administrator ready to work first appeared on Nanjing Night Net.