Senator Brandis has come under fire over a contentious move to restrict his ministerial colleagues’ ability to seek independent legal advice directly from Solicitor-General Justin Gleeson, SC.
Documents released at a Senate inquiry on Wednesday suggest same-sex marriage laws and a proposal to strip dual nationals involved in terrorism of Australian citizenship were flashpoints in a simmering feud between the two men.
Mr Gleeson, the government’s top legal adviser, said in an explosive submission to the inquiry that he had not been consulted about a change requiring all ministers – including the prime minister – to obtain the written approval of Senator Brandis before seeking his advice.
Senator Brandis claimed in Parliament Mr Gleeson was consulted about the legally binding change, made days before the election.
Mr Gleeson said he had taken steps to have the change “withdrawn and for a proper consultation process to commence” but they had “proved futile”.
“Had I been consulted … I would have made a submission to the Attorney-General, in the strongest terms, that [the change] should not be made,” Mr Gleeson said.
Legal experts have expressed concern the change is a power grab that restricts the independence of the Solicitor-General.
Mr Gleeson said there had been times since his appointment in 2013 when he had been asked directly by “persons, such as a Prime Minister or Governor-General” to provide confidential advice and it was “critically important” this should continue.
Shadow attorney-general Mark Dreyfus said “Senator Brandis has misled the Australian Parliament and lied to the Australian people”.
“He has no choice but to resign. If Senator Brandis does not resign, then Mr Turnbull must show some leadership and sack Senator Brandis,” Mr Dreyfus said.
But Senator Brandis said in a submission to the inquiry, set up by Labor with the support of the crossbench, that he was “surprised” he had not been invited to make a submission.
He insisted Mr Gleeson was consulted about the change. He added that since he made the change he had received ten requests for referrals to the Solicitor-General and had referred “all ten of them”.
Mr Gleeson wrote to Senator Brandis in November 2015, raising concerns the Australian Government Solicitor (AGS) rather than his office was consulted on a marriage equality proposal that was “under active consideration by the government”.
Mr Gleeson also said he was not consulted about significant changes to a proposal to strip dual nationals involved in terrorism of Australian citizenship. Senator Brandis later made public statements that Mr Gleeson had advised there was a “good prospect” the law would withstand a High Court challenge.
Mr Dreyfus said it was “very concerning that Senator Brandis failed to consult the Solicitor-General on this important legal matter”.
“It’s also very concerning that Senator Brandis … [appears] to have misrepresented the advice of the Solicitor-General,” Mr Dreyfus said.
University of NSW associate professor Gabrielle Appleby told the Senate inquiry on Wednesday the changes “may be in the future a way the Attorney-General can freeze out the Solicitor-General”.
In his submission, Mr Gleeson said he was “already seeing evidence that requests for advice on matters of very great significance to the government and the community are going to persons other than the Solicitor-General”. Senator Brandis and the office of the Prime Minister were contacted for comment.