Public quarrels of the "he said, no I didn't " variety are rarely edifying, still less so when they involve the Commonwealth's first and second law officers. Thankfully, Solicitor-General Justin Gleeson's acrimonious squabble with Attorney-General George Brandis ended on Monday with his sudden resignation. However, Mr Gleeson made clear to Senator Brandis in his resignation letter that his decision did "not amount to a withdrawal of any position I have taken in relation to matters of controversy between us".
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The origins of that controversy are complex, and made more so by accusations of partisanship on Mr Gleeson's part. At its crux, however, it was a difference of opinion over the Solicitor-General's jurisdiction and authority.
Mr Gleeson claimed that Senator Brandis had failed to notify him of his intention to issue a directive that all future requests for legal advice from the Solicitor-General be made through his office. Failure to consult over this change of protocol would, said Mr Gleeson, hamper his ability to act as counsel for the Commonwealth and its emanations.
Senator Brandis' response was to declare in the Senate that he had indeed consulted the Solicitor-General – and that in any event the directive, issued in May, was consistent with the Commonwealth Law Officer's Act of 1964. Mr Gleeson's categorical denial that anything resembling "consultation" had taken place when the matter was first broached in 2015 led to Opposition charges that the Attorney-General had misled Parliament and should resign.
More ill-feeling surfaced when Mr Gleeson appeared before a Labor-initiated Senate inquiry into the matter where he likened efforts to retrain his ability to give frank and fearless legal advice as "a radical change". He also asserted that while he "would take instructions from the government of the day", he also owed a duty to the "Commonwealth of Australia and its people".
Senator Brandis' reputation for keeping close tabs on statutory officers whose activities fall within his ministerial authority is well-established, and many of those who've been subject to his kibitzing have reacted with irritation, understandably. Labor, or course, has helped circulate claims that the Attorney-General is a serial interferer.
Mr Gleeson's claim to be the victim of megalomaniacal bullying has to be treated cautiously, however. A reading of the Law Officers Act reveals that the Solicitor-General has functions rather than powers, and that these are to be carried out on "referral by the Attorney-General" or as he or she requests. And for Mr Gleeson to invoke a duty to the Parliament is a serious misreading of his clearly defined role as the in-house legal counsel to the government of the day.
The episode reflects little credit on either individual. Mr Gleeson was ill-advised to react as he did, while Senator Brandis seems to have been motivated by little more than a desire to bolster his power and authority. Cynics might suggest the directive was a calculated ploy, but it has succeeded only in undermining Senator Brandis' reputation.
