11 October 2016
by Andrew Elder

Lawyers and the Liberal Party: What’s keeping Brandis in office?

Brandis' misuse of travel entitlements, "right to be bigots" speech and now the arcane dispute with the Solicitor-General. The answer to why he hasn't resigned may lie in the absence of a suitable replacement.

When Joe Hockey left Parliament, I ignorantly speculated Turnbull might seek out a leading Sydney lawyer to replace both him and accident-prone Attorney-General George Brandis. There are precedents for that in Liberal Party history.

Being out of the NSW Liberals' loop for 16 years now, I was unaware my Young Libs contemporary Trent Zimmerman had North Sydney in the bag.

There are precedents for my being wrong about prognostications, too. But being wrong about that has revealed a deeper truth — a divorce from conservative politics of a once-significant social and professional group.

For most of our history, law students came from well-heeled families. Their education was steeped in traditions of the English common law and equity, and the slow and patient work required of individuals to maintain rather than challenge these grand traditions. Lawyers mostly worked for individuals, small businesses, large businesses and government; unions and other non-profits did little litigation then and had few friends at the Bar or on judicial benches. Their experience gave the appearance of breadth to representing sectional and individual interests.

Traditionally, a career in law is both privately lucrative and publicly respected. It is easy to make the case that you need a grounding in the law if you are to debate and pass legislation, which gives lawyers an advantage in political contests. Professional bodies quietly weeded out lawyers who, as political candidates, might cause public embarrassment. Conservative politics has been overrepresented by lawyers, including some who had risen to the top of that profession and seen politics as a fresh challenge.

The Liberal Party was founded by lawyers, not least Menzies himself. He set a standard of parliamentary performance, combining detailed arguments with a barrister’s theatrical flair. The Chifley Government announced a proposal to nationalise the banks in 1947 without having fully thought it out in policy or legal terms. The banks, however, quickly secured the nation’s best and brightest lawyers to defend their interests.

When Menzies returned to office in 1949, his Government was replete with lawyers. Some had managed big cases for major private interests and impressed preselectors. Some were suburban or small-town solicitors, or rural circuit lawyers, who had built strong reputations in their local communities. Some weren’t lawyers at all — but they knew to defer to the lawyers, particularly Menzies, when debates got complicated. When Malcolm Fraser put the Constitution under strain in 1975, it was more than a political gambit, he had a battery of lawyers advising him at every step.

Lawyers or not, most politicians took years to get into cabinet. The Liberal Party fast-tracked leading lawyers like Garfield Barwick, Tom Hughes and Bob Ellicott from newbie politicians to attorney-general. For its first 40 years, the Liberal Party had little trouble attracting quantity and quality legal talent into its ranks.

This changed in the 1980s. The Labor Government looked stable and popular, discouraging those who only wanted to serve in government. Keating made detailed cases for complex legislation with considerable flair, despite lacking legal experience. Deregulation both shattered hidebound traditions and created many new and lucrative opportunities for lawyers, further discouraging many from entering parliament. Former QCs Neil Brown and John Spender left politics with little or no ministerial experience to show for their career sacrifice.

As he prepared to return to government in the mid-1990s, John Howard found it hard to entice a leading lawyer to become attorney-general. No Liberal MPs at the time had sufficient depth in the law, or the experience in running big cases, to handle that job. Eventually, Daryl Williams QC was fast-tracked into Parliament and became attorney-general. A tax office investigation into lawyers in the late 1990s scuttled many promising careers.

George Brandis had cultivated the mien of a barrister as a student at the University of Queensland and was active in the State’s small Liberal Party. His legal career, such as it was, added a lustre to his political career that it would have lacked otherwise; the reverse is also true. The Queensland Labor Government inexplicably appointed him Senior Counsel in 2006, long after he had ceased practising. He became shadow attorney-general in 2007 and was the only Coalition frontbencher to retain one portfolio over their six years in opposition under three different leaders.

There is no proof that Abbott in 2010 actively courted leading barristers to become attorney general, as previous leaders had courted Barwick, Hughes, or Williams; he and Brandis had been friends since their days at Oxford. In the past six elections, the Liberals have not preselected a senior/queen’s counsel or other equally qualified lawyer into a winnable seat.

Law students have proliferated beyond their old-school limits. Academics who teach law subjects are less reverential of the old institutions; common law and equity, courts and parliaments, are social constructs of late capitalism and patriarchy to be questioned and challenged. Unions and other non-profits create enough legal work for lawyers of non-Coalition bent to make substantial careers. Previously marginalised groups have lawyered up but not joined the Liberal Party. Where is the woman lawyer, tired of ingrained sexism in her profession, who would become a Liberal MP instead?

Debates about same-sex marriage, investor-state dispute settlement mechanisms, human rights and other issues are subject to considerable debate among Australian lawyers. Few of these debates extend into Liberal Party branches as they once had. By the time they make it into party-room discussions, Liberals regard them as hostile incursions by political foes.

Brandis has been attorney-general since 2013 and his famous bookshelves are insufficient to catalogue his shortcomings. His misuse of travel entitlements, Section18C of the Racial Discrimination Act 1975 "right to be bigots" speech and now the long-simmering and arcane dispute with the Solicitor-General — the latter issue has been covered both concisely and in depth by Laura Tingle of The Australian Financial Review, and extremely badly by Mark Kenny of The Sydney Morning Herald, who patronised his audience and then stuffed up the explanation. Nonetheless, the argument that Brandis has failed and must go is strong; the argument that he deserves yet another chance is weak.

If you accept that Brandis cannot continue as attorney-general until the next election (due in 2019) when he could be replaced by Labor’s Mark Dreyfus QC MP, the question is: who is the Coalition’s next attorney-general? Turnbull isn’t coping with the job he has (Menzies was basically his own AG when the inept Billy Snedden occupied the title in 1964-66). Julie Bishop went into politics to escape lawyerly drudgery. Christian Porter was WA attorney general, but his record of achievement is thin. No current member of the Coalition’s parliamentary team can claim to be a substantially better lawyer than Brandis — they either never practiced, or spent short stints as suburban/regional lawyers, or as lowly minions in big firms.

Consider leading lawyers from around the country: which of them might even be tempted away from their practices by the office of attorney-general and all (for good or ill) that comes with it?

Within the Coalition Government, Brandis brooks no challenge to his authority on legal matters. While many Coalition MPs have law degrees, few have extensive experience in legal practice. Debates in legal circles resonate less within the Liberal Party than they did. Brandis seems to brush off debate on legal matters rather than engage as a more self-confident lawyer might.

The poverty of options facing the prime minister for this crucial office is the result of a generational shift by lawyers away from the Liberal Party. The law does not appear to be suffering from this separation but the Liberal Party definitely is, in its ability to attract talented people and conduct intelligent, well-informed, sustained, and relevant debates.