22 September 2016
by Laura Tingle

FOI documents back case that Brandis misled Parliament over Solicitor-General

George Brandis

Documents released under Freedom of Information laws suggest Attorney-General George Brandis has misled Parliament in claiming he consulted with the Solicitor-General over a move that means Senator Brandis has to personally give permission for anyone else in the government to seek advice from the solicitor general.

Solicitor-General Justin Gleeson SC has released documents under FOI to the Justinian website – over the clear objections of other parts of the legal bureaucracy – which concern Senator Brandis' move in May, under the cover of the looming federal election, to insert a new provision in the legislated directions under which the solicitor-general works requiring all ministers, including the Prime Minister, to obtain the permission of the AG before seeking advice from the SG.

The advice of an SG can be crucial in politically contentious issues faced by the government – such as on asylum seeker policy. But the SG also provides advice directly to a range of government entities from the office of the Governor-General to the Australian Taxation Office.

The Office of Parliamentary Counsel – which drafts the government's legal wishes into legislative form – raised concerns that the SG had not been consulted, saying this might not be consistent with the Law Officers Act 1964.

The move provoked extreme disquiet in legal circles because of the interference in the work of the country's most senior independent legal adviser. It is now the subject of a Senate inquiry.

Senator Brandis has been quoted in the media, and subsequently in the Parliament, insisting that he consulted with Mr Gleeson on the matter before issuing the instruction, which he is required to do under law.

No evidence of consultation
The FOI request asks for any record at all of any consultation between Senator Brandis and Mr Gleeson on the matter, but Mr Gleeson responds that no such documents exist.

Senator Brandis has denied misleading Parliament.

Mr Gleeson, in a 41-page decision explaining his reasons for releasing the document, says that the direction issued by the AG, "is the first time the process for briefing the solicitor-general has been placed on a legislative basis".

He also notes that, while he was not required to do so by law, he consulted with the Attorney-General, officers of the Attorney-General's Department, the Australian Government Solicitor and the Office of Parliament Counsel about the FOI request from the Justinian.

"Those persons and bodies have raised with me a series of possible grounds" under which the documents should not be released, he said. But Mr Gleeson has gone ahead.

Shadow attorney-general Mark Dreyfus said the documents "say one thing clearly – that Senator Brandis did not consult the Solicitor-General about the change in the Legal Services Direction which limits the Solicitor-General's role so drastically".

"It is deeply concerning that Senator Brandis continues to misrepresent what occurred, and the forthcoming Senate inquiry is needed to establish the truth," he said.