Solicitor-General Justin Gleeson
by James O’Neill*
One of the fundamental principles of a democratic society is the doctrine of the separation of powers. This takes many forms, for example with Parliament voting on legislation proposed by the executive, and any legislation passed being subject to review by the courts.
In a narrower context, the two moist important non-judicial legal roles are filled by the positions of Attorney-General (invariably a politician from the governing party) and the Solicitor-General. The latter is a non-political role. His or her main task is to provide legal advice to the government and other selected groups, including the Governor-General, civil servants and members of the Opposition.
As the solicitor-General also represents the government in hearings before the High Court, their legal capability and integrity are crucial elements of their job description.
The independence of the Solicitor-General is a critical safeguard. He or she must be free to proffer legal advice governed only by their view of the relevant law. As has recently been disclosed that view may not necessarily accord with the wishes of the government of the day. That only enhances the importance of their operational independence.
That system has worked well for over 100 years, since the foundation of the Commonwealth in 1901. Until this year. The current Attorney-General, Senator George Brandis, has changed the rules governing the seeking of the Solicitor-General‘s advice so that any advice sought must be channeled through his office. It is immediately obvious that this constitutes not just a procedural change, but a challenge to the very role of the Solicitor-General as the provider of confidential advice.
No rational explanation has been given for this change. It is not merely procedural. By undermining the central tenet of the separation of powers it potentially compromises the ability to protect against the abuses of a tyrannical government. The most recent example of that was the Solicitor-General’s advice against the government’s intention to strip dual citizens of their Australian citizenship on the basis of the government’s view as to whether or not they had engaged in “terrorist” activities.. This appalling proposal represented a reversion to the worst excesses of the Star Chamber of the late 15th to mid 17th centuries in England.
That such protection is needed is, or should not be, open to question. The events of 11 September 2001 have inspired governments around the world to introduce increasingly draconian legislation that limits or removes fundamental safeguards against the excesses of tyrannical government. Australia has been no exception to this trend.
Many Australians, perhaps most, have little or no idea of the extent to which their basic rights have been eroded. The reasons for this are not difficult to discern. The erosion of rights has been a bipartisan endeavour. Whether Labor or Coalition (and the latter have governed for 9 of the past 15 years) since September 2001, no principled or vociferous opposition has been raised in the parliament other than from representatives of the minor parties.
A corporate dominated and compliant mainstream media have similarly failed in their historic role of helping to hold governments to account. In recent years the ability to even debate significant issues such as going to war has been severely inhibited. It is unlikely that Australia will even hold a Chilcott like inquiry into the disaster that was the illegal invasion of Iraq, let alone hold the political leadership to account.
The important difference between Australia and the other western nations with whom we like to compare ourselves, is that Australia is unique in not having a Bill of Rights or equivalent document.
The Courts have only the 1901 Constitution, and that document is conspicuously silent on nearly all of a citizen’s rights of the type taken for granted in, for example, the United States with its Bill of Rights; Canada with its Charter of Rights and Freedoms; New Zealand with its Bill of Rights; and all members of the European Union who look to the European Convention on Human Rights which also has its own Court.
This concentration of domestic power in a largely unaccountable executive and its agencies extends to Australia’s international obligations. Since the election of the Abbott government in 2013 for example, Australia has either opted out of or disregarded, its obligations under the UN Charter on the Law of the Sea; the Convention Against Torture; the Convention on the Rights of the Child; the Refugee Convention and its Protocol; and its obligations under the UN Charter by waging a war of aggression in Syria.
Many of these violations had their antecedents in the previous Labor Governments, which may be one reason that any objection from them is so muted. Recent reports about Nauru, or the PNG Supreme Court ruling on Manus Island have received little or no attention. ABC’s 7.30 interview with Defence Minister Marise Payne was notable for its completely ignoring the illegality of Australia’s involvement in the ongoing war in Syria.
If the Labor Party has a view on the latter subject it has been well hidden. Parliament rarely sits, so even if the government permitted a debate there would be little time to actually have one.
History teaches us that rights surrendered are not easily recovered. That the highly regarded Solicitor-General Justin Gleeson should be the one to resign while the Attorney-General lies to parliament; damages every portfolio he is inflicted upon; retains an invincible sense of self-righteousness; and has the support of the Prime Minister is a measure of how low standards of accountability have sunk.
Brandis is not alone in his arrogant disregard for constitutional conventions and the important safeguards that accompany them. He is joined by Peter Dutton and others in the race to the bottom.
The real victim of this sorry chronicle however is what we fondly recall as Australian democracy. It is now a severely tarnished model. The history of the past 15 years does not augur well for the survival of what little vestiges remain.
In that we are partly to blame. We persist in electing and re-electing people to the House and Senate who consistently show little or no regard for the fundamental principles of democracy.
The dispute between Brandis and Gleeson is about a great deal more than the issue upon which media attention has been focused. It should be, to borrow an old simile, the canary in the coalmine.
Recent history suggests that we will fail to acknowledge its significance. Our society and our survival as a democracy may well be the real casualties.
*Barrister at Law. He may be contacted at joneill@qldbar.asn.au
Photo: www.afr.com/
James, please write a Bill of Rights for Australia.
Mary, I would be happy to do so. There are plenty of valuable precedents. The hard part will be persuading the present government or the alternative (sic) that such a step is both desirable and necessary. Their track record does not inspire any confidence that they are either interested or persuaded that it is necessary to arrest the rapid decline of our liberties. Both seem to me to have a vested interest in accruing ever more power to themselves and their agencies.
For God’s sake, who cares what “they” want? It’s OUR business.
By the way, James, you know I meant a bill of NEGATIVE rights, as in the right not to be stripped of one’s cizenship (or stripped in general?); the right not to have the separation of powers sent down the gurgler; the right not to be genocided by chemtrails….
Personally, I can’t stand the idea of POSITIVE rights, such as the right to paid parental leave; the right to a horse or a wheelchair (whichever); the right to receive each new app, virus scanned, within 5 days of its invention. Very Australian. Nonsense.
Ah, here’s a negative right: the right to go to the town square to watch the flogging of the parliamentarian who has done the most harm that month. Yay flogging!
As the word “right” tends to be confused with “entitlement” as a means of maintaining a captive population I prefer to say “obligation”: No government should be given any room to confer or withdraw anything.
Berry, how about we call it an “Australian Bill of Berries.”
Then everyone would say Huh? and we’d have to explain.
Thus we would actually have to think about who is doing the giving and the taking, or as you say, the conferring and withdrawing, and why.
If you don’t want your name used, then an Australian Bill of Pine Cones. Wait, not catchy enough.
Bill of Mights, Fights, and Rights.
Or a Bill of Secret Rights and only James would know what
it contains.
I remember about 1990 that the government had a ‘convention’ to establish a Bill of Rights for Australia. Peter Garret was chairing it and I have no idea who picked the fruitcake delegates. I was heavily involved in Fundamental Rights in the Courts, so I had a good background on what was going on.
I knew Peter’s uncle and I got a phone number for Peter. After just a short conversation, I knew that the ‘convention’ was set up to fail – and did, thankfully. You wouldn’t believe the crap ‘rights’ the looney tunes came up with. I formed the opinion that Garret was a ‘player’ and wasn’t surprised when he later joined the Labor Party.
James, I sent you some documents on the fundamental principles of English law and their application in Oz. The case I wrote those documents for was compromised by the very subject of your essay – a lack of judicial independence. Instead of being an ‘independent’ judiciary, they went behind my back and had the Parliament repeal the legislation, then wrote a judgement that avoided my legal arguments.
If you take a look at the document entitled ‘Review of Law’, I expect you will find much of what you want in a Bill of Rights. Unfortunately, you will need an independent judiciary to exercise those rights.
By the way, is Justin Gleeson related to former CJ Murray Gleeson? If so, he should have a discussion with his old man – Murray Gleeson was the CJ presiding in NSW when the court decided they didn’t have to be an independent judiciary.
“You will need an dependent judiciary…” Or a People’s judiciary? a store-front tribunal? music on the beach? a Clarendon assize? Anything would be better than nothing at this point.
Hey, Terry, welcome back. I read your “Review of Law” and it is a total and absolute knockout. I mean the thing about the sovereign.
Brandis can’t be allowed to get away with that.
The International Covenant on Civil and Political rights has been incorporated into the Australian Human Rights Commission Act 1986 (Cwth) as Schedule 2.
Does this mean that it has been incorporated into Australian Commonwealth Law? Just wondering if anyone can answer that for me.
Link to legislation below:
https://www.legislation.gov.au/Details/C2016C00711
Brandis is all part of the oppressive and insidious of a destructive force now entrenched of world government who are at the beck and call of the lobbyists involved with channeling finances to perks of politicians and the same are in the main a collusive club knowingly committed to bad faith and corruption, the results can be seen as the destruction of wild life and the exploitation of natural resources for personal power? and as this destruction marches on a unprecedented scale largely unabated, the progress and destruction abounds as the rich becoming richer and morality destined for ever to the growing rubbish dump of humanity.
JEEEEEEEEE-ZUZ
Well said James,
Alas, the majority of our fellow countrymen could care less about the incremental erosion of liberties and freedoms we take for granted. There are much more pressing issues to deal with, such as this weekends’ football game, or which horse will win the Melbourne Cup.
As far as “history teaching us that rights surrendered are not easily recovered”, I suspect that few read history and that even fewer would be concerned enough to register making comment on the incremental erosion of said liberties.
NB: Germany didn’t become “Nazi Germany” overnight. It was done incrementally, with tiny regulatory and legislative changes over years. i.e. It happened ever so slowly……. and then….really fast!
James, again you have opened my eyes. I would go one step further than Mary and ask you to spread this information more widely in the “marketplace” so we can all realize just how uninformed and docile we all are. As Patrick White once said “Poor Fella My Country”
Att: I have just posted James’s article on my Facebook page. But Facebook tells me that the page does not exist… yet the link works. Do they have algorithms to do this to specific sites?
This article is great; well written with up to date info. That said, it astounds me how few Australians seem to understand what a Democracy is!!!
I studied it while in school. A democracy CANNOT force voters to vote.
Our real estate industry is unregulated.
Our banking industry is unregulated.
Our top politicians are nothing more than immature bullies who got the job because all the mature leaders in Australia say, “it’s too corrupt for me”.
Wake up seriously. We have never had a democracy in Australia. We are nothing more than a UK-Elite’s experiment in their agenda of full tyranny.
Nb. Upon talking with AEC this year about not voting I was threatened by a supervisor a la carte-nazi style, “WE WILL RESTRICT YOUR VISA. WE WILL PUT OUT A SUMMONS FOR YOUR ARREST.”
“This sounds like nazi germany”
“DO YOU FOLLOW THE LAW?”
And this was an EL1 public servant taking home over $100K per year when they obviously should never have been given that job.
Australia is the most beautiful country with the most laziest and pathetically ignorant population on the planet. Stop being lazy and learn…yes it’s not school but learning as an adult is important you lazy dufus’
I love this song –
So funny (but not funny)
Is that threat based on any actual statute?
Followers of Gumshoe, the Australian public are in a catch 22 situation as far as electing a person to represent them. Decent people usually cannot get elected. They would have to be non-aligned to a party in other words an independent, but then most of the voting public have swallowed the garbage put out by the “parties” that voting for an independent is a wasted vote.
An honest want- to-be representative would not get past the selection stage for any political party. At this stage most decent people will not even put their name in the ring because they know that the political system is so rigged and rotten.
Mal, when I was in the Liberal party in SA I was too shy to be confrontative. After all, I was the new girl in a group that had been meeting for decades. But nowadays confrontation is not so taboo. You (I mean anyone) could join a party and announce from Day One that you are there specifically to seek pre-selection and you want to know why, if you are not chosen.
Don’t forget, people respond to normal interactions. They always listen when someone makes a demand — especially if the person repeats that demand frequently.
Anybody out there under age 50? What are you waiting for? Get yourself a nice job in Parliament — the salary is beautiful. Just write a list of your demands. Recite them with a smile, often
That should drive ’em all crazy!
May I quote Tennyson:
“And slowly answer’d Arthur from the barge,
‘The old order changeth, yielding place to new…’
So said he, and the barge with oar and sail
Mov’d from the brink, … till the hull
Look’d one black dot against the verge of dawn,
And on the mere the wailing died away.”
(It does happen, you know. Every situation gives way to new.)
I don’t know if others are having a problem while on this site, but regularly, I am having a security warning coming up on my screen, which I believe is bogus. At times when I check the “yes” window for continuing I am ignored and other times my computer screen is seized. I then have to turn off all power and re-open. It only happen on Gumshoe.
Real concern. Try do a screengrab and send it to me.
Re: Alert
Issued To *.rllc.com
Issued By: Alpha SSL CA – SHA256 – G2
Valid From 23/03/2016 to 24/03/2017
Best I can do Dee.
Also having a similar problem with other alternate news sites. The security warning comes on and is sometimes ignored. Not so far with Gumshoenews. Wonder who is doing the surveillance.
I’ve been getting that for about the last three or four weeks. Click it off and it just keeps popping back up for a number of times until it eventually gives up. While it is up it shuts everything else down and you can’t save it, at least I’m unable to.
[…] Oz – “The current Attorney-General, Senator George Brandis, has changed the rules governing the seeking of the Solicitor-General‘s advice so that any advice sought must be channeled through his office. It is immediately obvious that this constitutes not just a procedural change, but a challenge to the very role of the Solicitor-General as the provider of confidential advice. No rational explanation has been given for this change.” https://gumshoenews.com/2016/10/28/australian-democracy-under-threat/ […]