The Attorney General won’t survive his latest hubris-inflicted disaster, writes Ben Eltham. The question is, how much more of it will we have to swallow before he’s removed.
It’s fair to say George Brandis is not particularly well respected in Brisbane’s small and cliquey legal world.
After a stint at the University of Queensland and then Oxford (at the same time as Tony Abbott), he was called to the bar in the mid-1980s, where he specialised in commercial law. Queensland legal insiders speak of a steady if unoriginal lawyer, who spent much of his spare time building up his contacts in the Queensland Liberal Party.
It has long rankled the Queensland legal community that Brandis achieved the coveted “silk” of a Queen’s Counsel long after he had given up practice at the bar and become a full-time politician. Characteristically, Brandis got the silk by bypassing the Bar Association and stitching up a deal with the state’s chief justice, Paul de Jersey.
Some also question whether Brandis ever met the Queensland Bar Association’s description of a Queen’s Counsel as someone possessing “superior experience, learning, seniority and standing as an advocate”.
Brandis’ suspect legal nous has repeatedly got him and his government into trouble. As Attorney-General, he has drafted many bad laws, greatly increasing the ambit of the security state to surveil and control citizens. Respected members of the legal profession have been alienated. Key civil rights have been impinged upon. Legal aid and community legal centres have been attacked.
Brandis has lost embarrassing legal cases, for instance his strange two-year battle to keep his ministerial diaries secret.
But for all his bungles with the law, the real problem for the government is not George Brandis’ legal ability. It is his political acumen.
After three years as the Coalition’s Attorney-General, Brandis should be at the peak of his influence. He has power, and experience.
The Senator from Queensland is one of the most senior members of the government. Brandis controls a significant power base in the LNP apparatus. He holds the exalted top spot on the LNP Senate ticket. His decision to move his support over to Malcolm Turnbull in 2015 was a major blow to Tony Abbott’s chances of retaining the prime ministership.
He entered the Senate back in 2000. He has been a Coalition front-bencher since 2007. He has held important committee and leadership roles for the Liberal Party in the upper house. He has been a cabinet minister for the life of this Coalition government.
Historically, the Attorney-Generalship has often been the home of dynamic performers. The office has been held by political and legal giants, from Alfred Deakin and Billy Hughes to Robert Menzies, H.V. “Doc” Evatt, Garfield Barwick and Tom Hughes.
Needless to say, the current office bearer is not quite living up to these vaunted precedents.
Despite his seniority and experience, Brandis is a walking disaster zone. He is one of the government’s weakest front bench performers. His constant bungling has wrought self-inflicted havoc over long periods of the Coalition’s first and second terms. Brandis has repeatedly damaged the Coalition’s political fortunes. Each implosion seems deeper and more destructive than its predecessor.
As even a quick glance at his long and unhappy career shows, Brandis is a magnet for misadventure. All too often, his wounds have been self-inflicted, the result of political misjudgement. The leitmotifs have been overweening ambition and hubris.
Such is the scale and longevity of Cyclone Brandis, it’s not possible to list all his own goals and blunders in one short article. For those interested, Bernard Keane has a long list of his fiascos and disasters at Crikey.
Any short list would include his notorious defence of the right to be a bigot, which effectively torpedoed the Coalition’s push to repeal section 18C of the Racial Discrimination Act.
His stammering incomprehension when asked “what is metadata?” gifted David Speers a Walkley Award. His heavy-handed bullying of Gillian Triggs not only failed to silence a prominent critic, but ensured that the government’s abuses and tortures on Manus Island and Nauru were given much greater exposure than they otherwise would have been.
I recently wrote a book on his disastrous tenure as arts minister.
But the current controversy over the Solicitor-General controversy looks like being the worst yet. Leave aside for a moment the legal issues, as important as they are. In political terms, Brandis’ handling of the issue has been spectacularly inept.
The fiasco began with a minor bureaucratic spat over the Solicitor-General’s rights to brief diverse members of the government. It has escalated all the way to the resignation of Solicitor-General Justin Gleeson, in the most damaging way imaginable.
Brandis could have backed down at any stage, diffusing the issue. For instance, he could have quietly dropped the Legal Services Direction that is at the heart of the dispute about the independence of the role of Solicitor-General. He could have tried to patch things up with Gleeson, in order to keep a nasty turf war out of the public eye. He could even have apologised.
But instead of tactical retreat, Brandis doubled down. As he has done consistently as Attorney-General whenever his decisions have been challenged, he attacked. He rammed through the Legal Services Direction, dramatically restraining Gleeson’s independence, and applied departmental pressure on Gleeson.
When the Senate started to inquire of Brandis’ actions, Gleeson wrote an explosive submission which implied, quite bluntly, that Brandis had lied.
Brandis had claimed that a meeting on November 30 last year constituted a “consultation” with Justin Gleeson about the new directive to rein in the Solicitor-General’s independence. But Gleeson said he had not been consulted. Only one of these two versions of events can be true.
Typically, Brandis flourished the meeting notes taken by departmental staffers as a justification. Just as typically, the meeting notes are damning for Brandis. They simply don’t back up his version of events. Brandis has talked his way into serious trouble.
When the Senate inquiry was held, the old trick of bullying the witness was tried. Brandis smirked through some farcical questioning of Gleeson. In a transparent attempt to intimidate the Solicitor-General, LNP senators Ian Macdonald and Barry O’Sullivan clumsily interrogated Gleeson like a couple of bumbling detectives.
The Hansard of the exchange between Gleeson and Macdonald is a thing of wonder. It’s roughly like watching a mathematics professor explaining number theory to a staggering drunk. Macdonald even tried to smear Justin Gleeson’s daughter for being friends with legal academic Gabrielle Appleby, in an aspersion that Gleeson asked to be struck from the record. The bathetic proceedings culminated in a blustering Macdonald shouting over the top of Gleeson’s answers.
This is the way the Coalition treats law officers who dare to show independence. Those who watched the orchestrated bullying of Gillian Triggs have seen this play before.
When Gleeson finally resigned this week, he did it with style. On the way out, the Solicitor-General launched a smart missile targeted directly at the Attorney-General’s credibility.
Gleeson’s resignation letter is a masterpiece of softly-spoken invective. It may prove to be the epitaph of George Brandis’ career.
In the letter, Gleeson explained that the relationship between the two top law officers of Australia is “irretrievably broken.” It can’t go on like this: “there must be some resolution to the impasse.” Therefore, Gleeson is quitting.
“My decision does not amount to a withdrawal of any position I have taken in relation to matters of controversy between us,” he wrote. “For the avoidance of any doubt, I also make perfectly plain that I reject absolutely each and every attack and insinuation that has been made in recent times upon me personally, or upon my office, by Government members of Parliament, including you, in Senate Committee processes.”
Brandis is in deep, deep trouble. His position as the nation’s top officer of the law is simply not tenable given what we now know about the treatment of Justin Gleeson.
The Attorney-General has managed to alienate nearly the entire Australian legal community. This week, the Australian Lawyers Alliance called for Brandis’ resignation.
The Attorney-General’s position is one of the most important in any government. The chief law officer of the land has tremendous legislative power. He also controls the purse strings for much of the nation’s legal infrastructure.
So when 200,000 lawyers want Brandis gone, it’s not a good sign for the future.
George Brandis is now one of Malcolm Turnbull’s biggest problems. Somehow, a way must be found to clean up the mess.
In the short term, Turnbull can do nothing: he simply doesn’t have the factional flexibility to reshuffle the cabinet, yet again.
But in the longer term, Brandis will be moved. The very fact that Turnbull is now publicly proclaiming his support for the embattled Attorney-General shows that matters have reached a delicate juncture. There are unsourced media reports claiming that Turnbull has lost patience. Perhaps a cushy post on the Federal Court, or in a salubrious foreign embassy can be used to entice Brandis’ departure.
The government is behind in the polls and the Prime Minister is increasingly unpopular. Turnbull simply can’t afford these scandals to keep rolling.
Brandis is toast. He must now eventually step down. The only variable is when.