Brandis feud may fetch Gleeson a High Court seat under Labor
Chris Merritt
The Australian
October 14, 2016
Anyone who believes Solicitor-General Justin Gleeson will suffer a career setback because of his feud with Attorney-General George Brandis is kidding themselves. This feud might eventually give him the ultimate prize — a seat on the High Court.
It all depends on what happens at the next federal election. If Labor wins and Mark Dreyfus is once again attorney-general, Gleeson will be the candidate to beat when Geoffrey Nettle steps down in December 2020.
The reason is obvious: to Labor eyes, Gleeson is perfect. He owes much of that to the bitter dispute over whether Brandis consulted him before changing the rules governing access to the Solicitor-General.
Even before that, Gleeson’s pedigree would have delighted Labor. His father, Gerry — known as the Cardinal — was premier Neville Wran’s all-powerful department head when Labor was in office in NSW in the 1970s and 1980s.
Gleeson’s wife, Bernadette, is the sister of social activist lawyer Frank Brennan. His daughter, Madeline, wrote a critique of the government’s border protection policy that was launched by Julian Burnside, another activist lawyer.
The family connections come together in the East Timor border case. Gleeson is representing the government while Brennan, his brother in law, is an adviser to East Timor.
In these circumstances it should come as no surprise that material that has now become public gives the impression that the relationship of trust between the government and its chief legal adviser is broken.
That much is evident from the content of a letter Gleeson wrote to Brandis on November 12 last year. It is also evident from the fact that this letter — which is correspondence between a lawyer and his client — was made public by the Solicitor-General.
After obscuring seven or eight lines, Gleeson included the three and a half page letter in his submission to the Senate inquiry into the level of consultation over those new rules.
Even with parts of this letter obscured, the fact that it has been made public by one of the nation’s most senior lawyers is extraordinary.
The government is Gleeson’s client and Brandis, as its immediate representative, appears to believe the Solicitor-General revealed too much of what had passed between lawyer and client.
This is evident from the fact that the Attorney-General included a copy of the same letter in his submission to the Senate inquiry — minus two pages of material that had been let through by Gleeson.
Much has been made of the political impact of this material. It shows Gleeson complaining to Brandis that it had been wrong to give the impression that the Solicitor-General had provided advice on a bill to strip certain people of citizenship.
But it shows something else: Gleeson was sidelined from most of the advice work on a critically important bill. The government, Gleeson’s client, chose to take its work to other government lawyers. When Labor was in office Dreyfus also shopped around.
The letter shows that Gleeson was not happy — as would be the case when any lawyer realised that the relationship with an important client had broken down and work was going elsewhere.
In the real world, a fractured relationship with a client is frequently remedied by replacing the lead partner. It’s the lawyer who goes, not the client.
What makes this case unusual is the fact that the lawyer seemed to think that the way to remedy his situation was to send the client a long list of grievances about work that was placed elsewhere.
He complains that after providing initial advice on a proposal to strip certain people of their citizenship he later realised that the Department of Immigration had provided several pieces of advice.
Last September, he learned that the bill implementing this plan was to be revised again and advice had been sought from the Australian Government Solicitor.
He was so far out of the loop that he was relying on media reports and “informal” sources to find out what was going on.
His isolation is pitiful: “No-one involved in this latest revision process has engaged with my office to seek further advice.”
After the disclosure of this letter, it is hard to imagine even a vestige of trust remaining between the nation’s first and second law officers.
The most he can hope for is to serve out the rest of his five-year term. He cannot hope to match the tenure of some of his illustrious predecessors.
Gavan Griffith was in the job for 14 years. In his submission to the Senate inquiry, he revealed that the attractions of being Solicitor-General were so great that he opted to continue in office by “thrice refusing appointment as chief justice of courts other than the High Court, and other appointments”.
Gleeson’s term expires in 2018. But if Labor wins in 2019, things will look very different.
Keep in mind that it was Dreyfus who appointed Gleeson Solicitor-General just seven months before Labor lost office in 2013. Dreyfus has also been the chief beneficiary of his nominee’s row with Brandis.
And if Labor returns to office in Canberra, it will be Dreyfus who will take the names of candidates for the High Court to Bill Shorten’s cabinet.
Gleeson might need to spend a few years back at the Sydney Bar after his term expires. But he is still relatively young — born in 1961 — and would be able to serve almost 10 years on the High Court if the Nettle vacancy goes his way. That is, of course, unless he is now too hot to handle.
The government employs Gleeson as Solicitor-General... to do legal work for them, just as any client employs a lawyer to do work for them. Pedantry will not win you this argument.
The fact he has Labor pedigree and was recommended for appointment by a Labor PM and sought to secretly deal with the Shadow Attorney General, Dreyfus, speaks much about his loyalties and politics.
The fact Labor have sought to muddy the waters in attempts to slur and remove Brandis is just a measure of how low they and their friends will go.
Others in the know have commented on Gleeson, they too do not agree with everything he has done or said.