Inside Story

Restoring the independence of the solicitor-general

George Brandis’s backdown is only the first step in clarifying and protecting the role of this key legal officer

Gabrielle Appleby 15 November 2016 2147 words

Strategic retreat? Attorney-general George Brandis in the Senate last week. Mick Tsikas/AAP Image

Late last week, six months after George Brandis quietly issued his Legal Services Direction tightening control over the work of the Commonwealth solicitor-general, the attorney-general abandoned the plan. He and the government no doubt hope that this is the end of the controversy, but much more will need to be done to restore confidence in the solicitor-general’s independence and authority.

The dispute between Australia’s two leading law officers first surfaced on 3 June 2016, when details of the Direction were reported by Fairfax Media. Under the new provisions, no one in government could seek an opinion from the solicitor-general without the attorney-general’s written and signed consent. The explanatory statement accompanying the Direction included a claim that Brandis had consulted the solicitor-general, a claim solicitor-general Justin Gleeson strenuously denied.

The attorney-general’s backdown came in the same week as the report of the Senate Legal and Constitutional Affairs Committee on the controversy. The committee recommended that the Senate disallow the Direction and censure the attorney-general for “misleading the parliament and failing to discharge his duties… appropriately.” (Government senators delivered a strongly worded dissenting report, accusing the majority of using the inquiry to pursue “a partisan political agenda.”)

What this long and unedifying saga has revealed is that the solicitor-general’s capacity to act as a trusted, independent and authoritative legal adviser is far from guaranteed. The government must think seriously about reform to the office to reduce the damage caused by recent events, and guard against similar controversies.

Selecting the solicitor-general

To perform his or her role, the solicitor-general needs not only to be trusted by government but also to be willing and able to provide robust and independent advice. This delicate balance rests largely on the professional qualities, ethics and experience of individual solicitors-general. Any future holder of the office must be apolitical and must possess exceptional skill and integrity. To ensure that he or she has the confidence of both sides of politics, and of the public, the appointment process needs to be reformed.

This is a separate issue from the concerns that recent events might deter high-quality candidates from accepting the position. In spite of Gleeson’s treatment during his time in office – on display at its worst during the Senate committee hearing – it’s to be hoped that there are candidates prepared to serve in this important position, particularly at such a pivotal time for the office.

Encouragingly, the government has shown no indication that it intends to rush to appoint a solicitor-general whom it knows and trusts – that is, a candidate who is close to the government – and has instead advertised the role. This is an important (first) step forward: a general call for applications allows candidates not otherwise known to the attorney-general and the government to put their names forward. It widens the pool of potential appointees, and should have a positive effect on the merit – and diversity – of the appointments.

In itself, though, this is no panacea. The government must also consider adopting a more formalised, arm’s-length process of appointment, involving an independent selection panel applying a set of public criteria.

Although there have been few allegations of past appointments being made for purely political motives, the dangers of a closed appointment process are clear. At a time when suspicions of politicisation are at an all-time high, it is particularly important to adopt a more transparent, apolitical and merits-based process. A more open process can also signal to potential candidates that the government intends to act with appropriate respect for the independence and status of the solicitor-general.

Clarifying roles and accountability

Uniquely among Australia’s relevant state and federal legislation, section 12 of the Law Officers Act divides the solicitor-general’s functions in two. According to 12(a), he or she acts as legal counsel to a variety of Commonwealth bodies; according to 12(b), he or she must “furnish his or her opinion to the attorney-general on questions of law referred to him or her by the attorney-general.” By combining these two roles, the Act raises a tricky question: can the solicitor-general provide an opinion on a question of law only under the conditions set out in 12(b)? Or can he or she provide an opinion without the attorney-general’s involvement as part of the broader function of acting as counsel under 12(a)?

Justin Gleeson’s view was that section 12(b) did not limit 12(a), and that 12(b) applies only to “those cases where the attorney-general seeks the opinion of the solicitor-general, which may then stand as the opinion of the attorney-general unless he or she wishes to contradict it.” Sir Anthony Mason, former chief justice of the High Court and also the first solicitor-general appointed under the 1964 Act, is among those who have taken a similar view. Attorney-general Brandis differs: in his submission to the Senate committee, he argued that “the Act explicitly provides only one circumstance in which the solicitor-general may provide an opinion to the government on a question of law.”

These disagreements suggest that section 12 should be amended to clarify the solicitor-general’s advisory function. Arguments can be made for both positions. There is an argument that the attorney-general, as the responsible minister, should have full knowledge of, control over and accountability for the functions of the solicitor-general. On the other hand, it is important that government figures have unfettered access to the solicitor-general, and there may be matters on which senior members of government require advice that ought to be kept confidential from the attorney-general.

In practice, both viewpoints can be accommodated. In the states where the statute gives the attorney-general ultimate control over access to the solicitor-general, for example, protocols and processes have been put in place, with the prior knowledge and consent of the attorney-general, to facilitate confidential requests if they arise in future.

Clarifying how and when the solicitor-general should be briefed

During the Senate committee’s inquiry it became clear that the Commonwealth government has not always sought the solicitor-general’s advice on significant matters, or has sought further opinions if it does not agree with that advice. How can such a practice be prevented in the future?

Across Australia, it is generally accepted that governments will seek advice on significant legal issues from the solicitor-general, and that the solicitor-general’s advice will be treated as final and authoritative. This is not because the solicitor-general is an oracle, or always right. No lawyer can always be correct, or will always predict the way the High Court will decide cases.

The solicitor-general’s opinion should be treated as final and authoritative on significant legal issues for three key reasons. The first is that if a single source of advice is not identified in advance, the government could shop around for legal advice, not accepting an opinion until it finds one that supports its position. The second is that the solicitor-general is able to provide that final and authoritative legal opinion from a unique position: the advice is informed by, and can therefore be consistent with, the government’s previous legal position; the solicitor-general is afforded a level of statutory independence under the Law Officers Act; and the solicitor-general has an intimate knowledge of the High Court’s position. Finally, if the government avoids the solicitor-general, or seeks other advice once the solicitor-general’s advice has been received, this may also threaten the independence of a solicitor-general and undermine the utility of the position. Why? Because a solicitor-general faced with an opinion-shopping government may feel under pressure to tailor his or her advice according to the threat of competition.

The first step in preventing the selective use of the solicitor-general’s advice was the withdrawal of the Direction. The fact that it was withdrawn by the government rather than vetoed by the Senate goes a small way to increasing the confidence of future candidates that the government is serious about respecting the office and its role.

Second, there must now be a close review of Guidance Note 11, which governs the processes for briefing the solicitor-general, with three aims: to make clear what types of legal matters must be referred to the solicitor-general for advice; to clarify how the attorney-general is kept informed of those requests, without operating to discourage such requests (as the contentious Direction and Guidance Note may have done); and to clarify that the solicitor-general should be briefed by government either exclusively, or for the purpose of finality. In this final respect, the federal government might look to the guidelines that presently operate in Tasmania.

Clarifying the relationship with the governor-general

During the Senate committee hearing, there was some discussion as to whether the Direction would prevent the solicitor-general from providing legal advice to the governor-general without the attorney-general’s permission. Even before the contentious Direction was issued, this question was unresolved.

Most of the time, governors-general don’t act independently; rather, they implement decisions of the government (usually cabinet or the prime minister). This is appropriate because the governor-general is an appointed, not an elected, officer. But the governor-general has a small cache of powers, the “reserve powers,” that can be exercised independently from the government. This creates a real, but small, possibility that the governor-general may seek the solicitor-general’s advice on the exercise of powers that are contrary to the interests of the government of the day.

If that happens, would the governor-general have direct access to the solicitor-general? Would he or she have to first seek the government’s consent? Would the government have to approve the advice before it is given to the governor-general? Would a copy of the advice have to be provided to the government?

There is some disagreement as to the proper legal response to this question. At the federal level, the governor-general is not explicitly mentioned in section 12(a), but may fall within the reference to the “Crown in right of the Commonwealth.” But this takes us back to the question of whether 12(a) allows the solicitor-general to provide advice or simply to act as counsel in contentious matters. The uncertainty highlights the need for statutory reform and clarification.

Leaving the legislation to one side, there is a general trend across Australia to put in place processes and protocols that allow the governor-general (or the governor, in the states) to seek the advice of the solicitor-general. Anne Twomey argues that the current ad hoc practices ought to be further formalised, and that this should occur, most importantly, before any constitutional controversy arises. She argues that it is preferable that the governor-general and governors be given standing permission to access the solicitor-general on a confidential basis.

Alternatively, a senior legal adviser could be appointed to assist the governor-general. This would ensure a clear, formal and public process to provide the governor-general with a single source of technical legal advice prior to constitutional controversies arising. This option would maintain the solicitor-general as the senior legal adviser to the government should there be any conflict between it and the governor-general.

The current controversy provides the opportunity, at least at the federal level, for the relationship between the solicitor-general and the governor-general to be clarified, with future benefits for the rule of law in times of possible constitutional crisis.

Releasing the solicitor-general’s advice to parliament

Finally, the Brandis–Gleeson dispute reveals the pressing need to reform the rules about how the government uses the solicitor-general’s opinion in the parliamentary and public spheres. As I have argued elsewhere, there are good reasons why the government ought to release the solicitor-general’s advice to parliament when it is asking the parliament to act in reliance on that advice.

The government has occasionally seen the benefit of providing parliament with the solicitor-general’s advice. A recent example was the government’s release of the solicitor-general’s advice to the president of the Senate in support of its referral to the High Court regarding senator Rod Culleton’s election. But it hasn’t done so consistently. It refused, for instance, to release to parliament the solicitor-general’s advice on its proposed citizenship-stripping legislation, instead relying on summaries – which we now know may have been misleading – of the advice’s conclusion.

If the government is asking parliament to act where there is constitutional uncertainty, it ought to provide parliament with that advice so that MPs can make better-informed decisions. Doing so would also reduce the possibility of the government misrepresenting the solicitor-general’s advice – either intentionally or not – in ways that further its own political agendas. •