The commonwealth solicitor general has said the government did not seek his counsel in an orderly way on sensitive legal proposals, including whether its contentious policy to revoke citizenship for dual nationals was constitutional and the legal mechanisms proposed to pursue marriage equality.
The revelations are contained in an extraordinary no-holds-barred submission Justin Gleeson has made to a Senate inquiry into a controversial decision made by the attorney general, George Brandis, to stop the solicitor-general giving legal advice to anyone in the government without Brandis’s explicit approval.
In addition to making it clear the government was proceeding on sensitive policy matters with only intermittent consultation, Gleeson insists emphatically in his submission that the attorney general did not consult him before issuing a new directive restricting his scope to provide legal advice across the government.
Gleeson’s account directly contradicts a statement Brandis made to parliament about the process. Labor has called for Brandis to resign over the affair.
The solicitor general said he had written to Brandis in November 2015 requesting a meeting about concerns he had about liaison procedures between agencies and his office about sensitive legal issues.
“At no time at that meeting did the attorney general indicate he was considering issuing a legally binding direction concerning the performance of the functions of the solicitor general or a requirement that a commonwealth person of body could only approach the solicitor general after receiving the attorney general’s advance approval,” Gleeson says in his submission.
He says had he been consulted “I would have made a submission to the attorney general, in the strongest terms” that the change should not proceed.
But Brandis, in a lengthy submission to the inquiry that has not yet been made public, is continuing to argue that Gleeson was consulted at their one-hour meeting “about the very issue [subsequently] dealt with by the direction and the guidance note”.
The attorney general says that conversation was the main purpose of their meeting, although he acknowledges other “unrelated” issues were also discussed.
Brandis goes on to say in his submission that he has received no complaints about how the new directive is working in practice and Gleeson has not responded to “an invitation of 16 August to discuss any concerns with me”.
The shadow attorney general, Mark Dreyfus, has said Gleeson’s submission and its “unequivocal” rebuttal of Brandis’ account of their consultations suggests the attorney general has misled the parliament.
“Senator Brandis has attempted this power grab and then covered it up by claiming that he had consulted the solicitor-general,” Dreyfus said.
“Today it was revealed that Senator Brandis did not consult the solicitor general, and he ignored a letter the solicitor general had written to him, expressing his dissatisfaction about the decision.”
“Senator Brandis has misled the Australian parliament and lied to the Australian people. He has no choice but to resign.”
The Greens have also expressed alarm that the solicitor general was not consulted in an orderly way about key legal matters. “These are extraordinary revelations from the solicitor general,” said the Greens senator Nick McKim, who participated in Wednesday’s Senate hearings.
“It is clear that the final version of the amendments to the Citizenship Act was tabled without seeking advice from the solicitor general,” McKim said.
“For something as serious and drastic as removing citizenship from an Australian citizen to not have been based on the advice of the solicitor general shows a government at best disinterested in the rule of law, and at worst completely contemptuous of it.”
McKim said the “sidelining” of Gleeson from deliberations about marriage equality “is an extraordinary failure which clearly gave rise to such concern by Mr Gleeson that he raised it with the attorney general and his department”.
In his correspondence Gleeson says he was asked to provide an opinion on the citizenship proposal in August 2014 during its first iteration.
“In March 2015, as I learned much later, the proposal was significantly revised within the Department of Immigration and Border Protection,” he says.
He says advice was sought over the next three months from the Australian government solicitor as the proposals were refined. “Almost by accident, the matter came to my attention again in June 2015.”
Gleeson then proceeded to provide some “urgent advice under acute time constraints on the next version”. The bill was subsequently tabled, with further changes, without seeking his advice.
A key issue throughout the government’s protracted internal debate over the citizenship revocation proposal was the constitutionality or otherwise of the change.
The solicitor general makes the point that his guidelines stipulate the importance of early consultations in matters where it is likely to appear in proceedings concerning those matters.
He says in his correspondence to Brandis he is setting out his concerns in writing to ensure they can be discussed “constructively”.
