Brandis and Gleeson called to account at inquiry


Electronic Media Monitoring Service 


14-10-2016 07:30 PM



Parl No.


Channel Name



14-10-2016 07:30 PM



14-10-2016 08:05 PM

Cover date

2016-10-14 19:30:49

Citation Id




COOPER, Hayden


LANE, Sabra

BRANDIS, Sen George

PRATT, Sen Louise


Open Item 

Parent Program URL
Text online


Media Deleted


System Id


Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

Brandis and Gleeson called to account at inquiry -
Go To First Hit
View in ParlViewView other Segments

HAYDEN COOPER, PRESENTER: Rarely is such a breakdown on such public display. But that's the way it was today when the Attorney-General, George Brandis and the Solicitor-General, Justin» «Gleeson» , were called to account for their stark differences in opinion.

At the core of their dispute is a move by Senator Brandis to restrict the Solicitor-General from giving legal advice.

In the extraordinary appearance at a pamentary inquiry, Mr «Gleeson» maintained that he was not consulted about the change. He described the Attorney-General's order as "radical" and says he's ignored it in some cases because it's invalid.

Senator Brandis rejects the complaints.

Here's our political correspondent, Sabra Lane.

SABRA LANE, REPORTER: The brawl between the nation's two top law officers will go down in parliamentary history as a legal fight without precedent.

(Footage from Senate Legal and Constitutional Affairs References Committee hearing)

«JUSTIN» «GLEESON» SC, SOLICITOR-GENERAL: What this matter is about is: was I consulted about the direction? I was not consulted about the direction.

GEORGE BRANDIS QC, ATTORNEY-GENERAL: The issue underlying this committee's inquiry boils down to a difference of opinion about the meaning of a word. It concerns the meaning of the word "consultation".

SABRA LANE: For a century Australia's had a solicitor-general who sits outside Parliament and is legally required to provide independent advice to government and the Commonwealth. «Justin» «Gleeson» holds that position right now. He's regarded as the nation's second law officer.

«JUSTIN» «GLEESON» : Do I lie awake at night and think, reading this direction literally, the Attorney-General could seek an injunction against me to restrain me performing my office? I do.

SABRA LANE: The nation's first law officer, George Brandis, issued a new legal directive on the last day before Parliament was dissolved in May, ahead of the election, mandating all requests for Mr Gleeson's advice - be it from the Prime Minister, Governor-General or any agency - first gain Senator Brandis' approval. That directive blind-sided Mr «Gleeson» .

«JUSTIN» «GLEESON» : It is at least a material change. The word "radical" is probably also an adequate description, but it is at least material.

The change was introduced without the Attorney-General telling me about it.

I was shocked by the change, because the Attorney-General and I had otherwise been working very cooperatively between November to March to deal with these very issues. The change is one which is making the functioning of my office exceptionally difficult.

GEORGE BRANDIS: I am very surprised to hear Mr «Gleeson» say to this committee this morning that I have not sought to discuss the matter with him. In fact, to say that I have "refused to engage with him", because that is not the truth.

Had the Solicitor-General sought to engage with me in response to my invitation - or even made a phone call to me, which he did not - this issue could have been sorted out in a matter of minutes and at no cost to the taxpayer.

SABRA LANE: A Senate committee was set up to investigate what consultations took place before Senator Brandis issued the directive.

MURRAY WATT, LABOR SENATOR: Do you consider that your independence has been undermined by this direction?

«JUSTIN» «GLEESON» : I'm... I'm not prepared to answer that question with a "yes" or "no", Senator, because the implications of it are too profound. I regard the direction as a threat to the independence of the office.

SABRA LANE: Mr «Gleeson» says the directive is unlawful; that he's ignored it in some cases and asked Senator Brandis to withdraw it three times.

«JUSTIN» «GLEESON» : Yesterday I was faced with the situation where, if the Attorney-General's direction is lawful and means what it says, I was meant to say to this senior solicitor: "Go away. You don't have a consent."

The problems this direction is causing are as practical as that. I cannot run my office in the way I have run it for four years.

SABRA LANE: Labor claims Senator Brandis has misled Parliament by stating he did consult with the Solicitor-General prior to issuing the directive.

MURRAY WATT: Senator Brandis, there have been other incidents when you've been accused of misleading the Senate, haven't there?

GEORGE BRANDIS: I've been accused of many things by the Labor Party, Senator Watt. If you have a long career in the Senate, no doubt you'll be the subject of many accusations yourself. In every respect those accusations have been false.

MURRAY WATT: OK. So, you have - this is the not the first time you've been accused of misleading the Senate.

SABRA LANE: Fireworks erupted several times as both men fronted the hearing in separate sessions.

IAN «MACDONALD» , LIBERAL SENATOR, COMMITTEE DEPUTY CHAIR: You have to tell the witness that this is not an opportunity for him to express his bile about anything, but simply to answer the questions put to him.

MURRAY WATT: He is trying to do answer the questions. He is trying to do that.

LOUISE PRATT, LABOR SENATOR, COMMITTEE CHAIR: Senator McDonald, I need to remind you...

IAN «MACDONALD» : Now the question was: was it appropriate for you to tell the world through a Senate committee, which you knew politically would end up in this, that you'd given advice on same-sex marriage and the Migration Act. Is it appropriate?

«JUSTIN» «GLEESON» : I don't accept the premises of your question. My conduct was appropriate. And I will explain why if you wish to allow me to explain...

IAN «MACDONALD» : OK. All right.

LOUISE PRATT: Senator «Macdonald» , can you just pause? Senator «Macdonald» , I withdraw the call.

IAN «MACDONALD» : No, no, no. I've asked you the question: was it appropriate? You've said "no." Thank you.

LOUISE PRATT: Senator, I just need to...

IAN «MACDONALD» : Now, I'll move on. Senator...

LOUISE PRATT: Senator «Macdonald» , will you pause for a moment? I just need you to remind you of Privilege Resolution One, which is that your dealings with witnesses need to be conducted with respect and courtesy.

IAN «MACDONALD» : I always give witnesses the respect they deserve, Madam Chair.

SABRA LANE: The hearing became turbo-charged when «Justin» «Gleeson» confirmed he took a phone call from the Opposition's Mark Dreyfus in June, in the middle of the election campaign.

Mr «Gleeson» says it was a brief chat; that the shadow attorney-general asked if he supported the directive and was he consulted. Mr «Gleeson» replied "no" to both questions.

Coalition MPs jumped on this admission, insisting Mr «Gleeson» should have disclosed the call to Senator Brandis, accusing the Solicitor-General of breaching long-standing conventions by keeping it secret.

BARRY O'SULLIVAN, NATIONALS SENATOR: You must have known when you set the telephone back into the receiver after talking to Mr Dreyfus that, in the words of Bill Heffernan, you were just about to create a political shit-storm of a size that would suck you in.

LOUISE PRATT: Senator, O'Sullivan, that question is out of order.

BARRY O'SULLIVAN: And why wouldn't you advise the Attorney...

MURRAY WATT: Unparliamentary language.

BARRY O'SULLIVAN: ... your first law officer...

LOUISE PRATT: Well, it's out of order and unparliamentary language.

BARRY O'SULLIVAN: ... why wouldn't you advise him that that was coming?

IAN «MACDONALD» : Don't be stupid, Madam Chair.

«JUSTIN» «GLEESON» : I thought the right thing to do was to answer honestly that question. I didn't think that was playing into a political matter.

I was concerned that the whole of the members of the 44th Parliament, including those at this table, happily packed their bags on the evening of the sixth of May, thinking the business was finished and there was an inaccurate statement on the records of that Parliament which none of you who were in that Parliament had any means of knowing about or dealing with.

SABRA LANE: The Opposition argues Senator Brandis has misled Parliament and should be sacked. The Attorney-General dismisses the saga as a case of confected controversy.

What is clear: the relationship between Senator Brandis and Mr «Gleeson» has broken down.

The directive at the heart of this inquiry is known as a "disallowable instrument". It sounds dry but it's really important. That means if a majority of senators disagree with it, they can scrap it.

That probably will happen before Parliament breaks for the year.

Outside Parliament, experienced legal minds believe the directive is detrimental. Professor Michael Crommelin headed Melbourne University's law school for nearly 20 years:

MICHAEL CROMMELIN, PROF., UNIVERSITY OF MELBOURNE: Well, I think it's damaging to the office of the Solicitor-General. It's a highly respected office - highly respected office - and it's attracted some outstanding people in the long history of that office. So I see this directive as damaging.

SABRA LANE: A directive destined for the dustbin.

HAYDEN COOPER: Sabra Lane reporting.