01 November 2016
by Mike Seccombe

The Coalition attacks on statutory authorities

It didn’t take long for Senator Ian Macdonald to show his rudeness and ignorance in the committee hearing a couple of weeks ago. Just a matter of seconds, in fact.

The legal and constitutional affairs references committee of which Macdonald is deputy chairman was hearing evidence last Friday from Justin Gleeson, SC, solicitor-general of Australia and one of the country’s sharpest legal minds, about his conflict with Attorney-General George Brandis.

Macdonald began his questioning by asking if Gleeson was a barrister. One might have thought Macdonald, himself a lawyer, would have realised the initials SC appended to Gleeson’s name stood for senior counsel.

But Gleeson, a stickler for exactitude, offered a fuller explanation.

“Strictly, that is not the legal arrangement. I am qualified as …”

Eleven words before Macdonald cut him off, and repeated the question.

“It undermines the integrity of institutions that are supposed to operate at arm’s length and are supposed to hold government accountable.”

On his second attempt, Gleeson got 14 words out before Macdonald butted in again:

“I asked you if you were a barrister. It is a pretty simple question. You are or you are not.”

After a warning from committee chairman Louise Pratt to watch his tone, Macdonald stayed quiet long enough to hear the answer: that Gleeson had been a barrister for 23 years, did not have a current practising certificate in New South Wales, but practised in his role as solicitor-general “by reason of a statutory right conferred under the Law Officers Act”.

In response to the Queensland senator’s next question, Gleeson managed 19 words before he was interrupted. There was another warning from the chairman. It made no difference. Gleeson got just one word out before Macdonald cut him off again:

“You are here to answer questions, Mr Gleeson.”

The exchange continued:

Chair: “Senator Macdonald, please let the witness answer the question.”

Gleeson: “Senator, I will say this very quietly. You have now interrupted my answers three times…”

Macdonald: “Oh, spare me!”

Gleeson: “Four times.”

Macdonald: “Mr Gleeson, you are not in a court now.”

Clearly. No judge would ever have allowed the repetitive badgering, the constant refusal to allow a witness to answer, the straight-out boorishness of Macdonald and the other Queenslander on the committee, Nationals senator Barry O’Sullivan, who would later in proceedings accuse Gleeson of having knowingly created a “political shitstorm”.

The agenda was clearly to try to demean Gleeson and portray him as some kind of Labor stooge, as evidenced by Macdonald’s oft-quoted words: “If you want to get into the political game, join the parliament.”

There was no evidence at all, though, that Gleeson wanted to be in the political game. He was dragged into it by George Brandis’s decision to change the 100-year-old institutional relationship between the nation’s first and second law officers.

And to the extent that Gleeson’s actions were political, they were conservative. He was standing for the status quo. It was Brandis, as Gleeson told the committee, who was doing the “radical” thing.

The questioning went on for more than two-and-a-half hours, with the right-wing senators apparently trying to goad Gleeson into an injudicious answer, he playing it calm but firm, and the chair issuing countless pleas for civility.

As we now know, Gleeson tired of the political games. He notified the government on Monday that he would quit his job, effective November 7, saying his relationship with Brandis was “irretrievably broken”.

As we now also know, the government’s formal harassment of the solicitor-general did not end with the committee hearing. It became public knowledge on Tuesday that the third right-winger on the committee, West Australian Liberal senator Linda Reynolds, had submitted some 120 questions on notice to Gleeson after the hearing.

They were nitpicking and trivial, clearly intended to nettle Gleeson and waste a large amount of his time rather than to elicit any useful information. He treated them accordingly in his written response to the committee.

For a start, he noted, the questions breached procedural rules for senate committees.

“That matter alone would be a sufficient reason not to extend my voluntary co-operation,” he wrote.

Then “for completeness” he went on to parse Reynolds’ motivations.

First, he wrote, her questions “appear to assume that there is some relevant deficiency in my evidence, a premise I do not accept”.

Second, each of the senators on the committee had been given “more than sufficient opportunity” to put questions during the hearing.

Third, “On their face, the questions appeared designed to further an attack, both on me personally and on the office of solicitor-general, unrelated to the subject matter of the inquiry.”

Thus he would not waste his time answering.

And so Gleeson is gone, but with his reputation undamaged. That is the view of Gabrielle Appleby, associate professor of law at the University of New South Wales, who literally wrote the book on the role of the solicitor-general.

“He has acted impeccably in his engagement with the attorney-general and the committee process,” she says.

“There’s been an incredible outpouring of support from the legal community. I think it has enhanced his reputation as both an exceptional lawyer and a lawyer of exceptional integrity.”

Macdonald and O’Sullivan have enhanced their reputations, too, as proud foot soldiers in the Coalition government’s long and increasingly ugly war on independent advice. That is the real import of the Gleeson story and the other battles being fought by the government.

First, though, a little about the two main senate inquisitors. Macdonald, a 26-year senate veteran, revels in a certain maverick status. A couple of years ago he outraged even some Liberal colleagues by bobbing up to speak in the senate chamber attired in a high-visibility vest embroidered with his name and the slogan Australiansforcoal.com, given to him by the Minerals Council of Australia.

Macdonald’s career never rose to any great heights, although it is noteworthy that John Howard gave this climate change denier responsibility for the environment and conservation.

In February last year, during his very hostile questioning of Human Rights Commissioner Gillian Triggs over her report on asylum-seeker children in detention, Macdonald conceded he hadn’t read the report “because I think it is partisan”.

In late 2013, he made news by turning his guns on then prime minister Tony Abbott’s office – he was clearly referring to chief of staff Peta Credlin, although he didn’t name her – for what he called an “obsessive centralised control phobia”.

“I’ll not have unelected advisers in the Prime Minister’s Office telling elected politicians, who are actually in touch with their constituencies, what should or shouldn’t be done,” he railed.

But, as The Sydney Morning Herald’s Stephanie Peatling noted in a biting commentary headlined “Are these Coalition senators the rudest men in Australia?”, Macdonald and O’Sullivan are themselves very controlling figures within Queensland’s Liberal National Party organisation, in which the culture is “even for the world of politics … particularly blokey”.

In 2011, before he entered the senate to fill the casual vacancy created by Barnaby Joyce’s move to the lower house, O’Sullivan was part of the party’s candidate review committee. The candidate for the state seat of Cairns, Paul Freebody, having heard reports of bullying at committee meetings, secretly recorded an expletive-filled encounter with O’Sullivan.

“You wouldn’t be the first fucking dead body on the floor of this party where the problem has got too big, so you need to work with us and stop frightening the children,” yells ex-cop O’Sullivan at one point.

And later: “You don’t think I want to work for a whole year only to sit down on fucking election night with a bottle of rum between my knees, fucking bawling my eyes out because [we] lost it by one seat, which was Cairns.”

You get the gist. These two have earned their reputations as blunt-spoken hard men, and that is why they are in the positions they are.

Now a little history of the long conservative war against independent advice, beginning with the election of the Howard government in 1996. John Howard immediately sacked a half-dozen departmental heads and put the rest on performance-related contracts.

To be fair, the relationship between government and the bureaucracy had never been as independent as the myth of frank and fearless advice from tenured permanent heads would have it. But the Howard moves represented a decisive change away from the British model towards that of the United States, where new administrations install partisans in senior roles. The new head of the prime minister’s department, Max Moore-Wilton, was certainly such a person.

Under “Max the Axe” the government sacked 11,000 public servants and moved aggressively to outsource advice.

Fast forward to May 2013. With the prospect of the election of an Abbott government looking all but assured, Liberal Treasury spokesman Joe Hockey sought to assure people there would be no repeats of Howard’s night of the long knives.

The opposition, he said, respected the quality and independence of the public service.

‘’My starting point is to give them [departmental secretaries] the benefit of the doubt about their intentions and their preparedness to work with us,” said Hockey.

But on taking office, the Abbott government promptly sacked several departmental heads, including Martin Parkinson, the head of Hockey’s own department, Treasury.

No reasons were given, but it is widely and reliably suspected that it was revenge for his previous role as head of the department of climate change. The Abbott government, replete with climate change deniers, abolished that department and sacked Parkinson’s successor, Blair Comley.

A third sacking, of Don Russell, a former Keating staffer, was perhaps to be expected, but the fourth, of agriculture secretary Andrew Metcalfe, was a surprise. It was widely attributed to government disapproval of his former role as head of the Department of Immigration.

There are many examples, says Gabrielle Appleby, “of how the government pushes back against anyone who has independence, who provides some accountability”.

She points to the treatment of information commissioner John McMillan as an example. “They tried to abolish the office outright. When the senate rejected that, they simply starved the office of funds, to the point where he had no staff, couldn’t pay the phone bills, was working from his office at home. The government was just so determined to get rid of the office – that might shine some sunlight on what they were doing.”

The forced resignation of the solicitor-general, she says, takes this war on accountability and independence to a new level.

“We have never seen a government attack its own solicitor-general in this way,” says Appleby. “It’s unprecedented.”

Unprecedented not just for the fact that he has been forced to resign, but for the public way the government went about forcing it.

Labor senate leader Penny Wong picks up this thread, pointing not only to the Gleeson affair but to the sustained attack by the same committee members on Gillian Triggs.

“They’ve demonstrated a willingness to undermine and publicly denigrate and bully independent officers, be they public servants or statutory officers who are there to do a job in the national interest,” Wong says.

“Now, there may well be things they disagree with about what the Human Rights Commission says. There may well be advice the solicitor-general provides that the executive doesn’t like, and ultimately there are decisions the government has to make about policy.

“But they’ve taken it much further, and engaged in personal, vitriolic public attacks on statutory officers. I have never seen anything like this. I am actually genuinely taken aback by the attacks on Triggs.”

As one long-time senate committee participant noted, Triggs was badgered for many hours until inevitably she made a mistake – incorrectly calling into question comments published in this newspaper – which is now being used as a pretext to push for her to be removed from the job. Notably, the calls have been led by the government’s far right: Eric Abetz, Cory Bernardi, Peter Dutton and others.

Ben Saul, Challis chair of international law at Sydney University, also deplores the “quite shocking bullying” of Gleeson and Triggs.

“And it’s not limited to Gleeson and Triggs,” he says. “The same trend is manifest in the way the government has reacted to a whole series of people who disagree with policy on legal grounds.”

Saul points to a recent instance in his own area of expertise – international law and Australia’s treatment of asylum seekers – and notes the comments of a special rapporteur for the United Nations High Commissioner for Refugees, that “an atmosphere of fear, censorship and retaliation” pervaded the government response to critics.

“It undermines the integrity of institutions that are supposed to operate at arm’s length and are supposed to hold government accountable,” Saul says. “It has negative consequences for the rule of law.”

The public bullying of statutory officers, Saul says, “has the effect of discouraging the best people from putting themselves forward to serve. Why would you want to work at the HRC or as the solicitor-general if you know you’re just going to be bludgeoned unless you agree with everything the government says?”

And that is the crucial question now that Gleeson has quit. How does the government get anyone of substance to put up their hand for a job that has been described by former solicitor-general Gavan Griffith, subsequent to Brandis’s changes, as being like a “dog on a lead”?

Says Appleby: “The government now has to publicly demonstrate it really does want independent legal advice. They must revoke the direction that initiated much of this controversy. I don’t think it’s enough for the senate to disallow the direction.

“That’s not enough, though. Who they appoint and how they appoint them will be another very public indication that they are working to fix the damage done.”

Appleby suggests an enhanced selection system, whereby a selection panel prepares a shortlist and recommendation to the attorney-general, so there is a much more merit-based, apolitical process.

However they do it, she says, “it needs to be an extremely highly regarded, apolitical person who has not been involved in this affair in any way”.

That will be the next test of the government’s integrity. Then there will be the replacement of Triggs, who is for now determined to see out her term. Will the government appoint another yes-person to the HRC, as they did in 2014 with Tim Wilson, who had previously advocated the commission’s abolition, and who subsequently became a Liberal MP? Or will it be someone of independence and substance?

Beyond that, is there any prospect that the government will end its war on independent advice? Recent history does not give much encouragement.

“Leaving aside the specifics of these cases,” Penny Wong says, “it is important, whoever is in office, that the public service and statutory office-holders are able to provide frank and fearless advice [and] that they don’t become creatures of the executive.

“There is a broader principle here that goes to our democracy, to how our polity functions.”

Sure, Wong is a member of the opposition; but that doesn’t make her observation any less true.