The Senate legal and constitutional affairs reference committee is meeting with a pressing question before it: did the attorney general, George Brandis, mislead parliament when he claimed the changes to the functions of the solicitor general in providing independent legal advice to government agencies and ministers came about through a process of consultation.

It’s an important question and in an attempt to find the answer an FOI request was made to both the attorney general and the solicitor general, Justin Gleeson SC.

Gleeson provided enough documents to make the case that indeed parliament was misled by Brandis’s claim that he had consulted with the second law officer about radical changes to his powers and functions.

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There are two instruments at play here and what Brandis has done is to elide both in order to claim Gleeson was in the loop about the legislation changes to his role as an independent legal adviser to the commonwealth.

Indeed, there had been a series of consultations and a meeting between the attorney general and the solictor general on 30 November, 2015, concerning a document called Guidance Note 11, which deals with briefing the solicitor general. As its name suggests, it is a guidance document, and does not have binding force.

The note said that advice from the solicitor general to agencies, ministers and departments would all be referred through the attorney general. However, the solicitor general also has a stand-alone function of providing advice in relation to litigation in which the commonwealth is involved.

On 4 May this year, Brandis wrote to Gleeson enclosing a final copy of the revised Guidance Note 11, “which has been prepared having regard, inter alia, to your suggestions”.

Then out of the blue, Brandis added:

I have also issued an amendment to the Legal Services Directions 2005. The amendment will insert a new paragraph 10B and will take the form of the enclosed document. Both the revised Guidance Note and the amended Legal Services Directions take effect immediately.

Gleeson notes that the version of the note published by the attorney general is “in a materially different form to the form of that document immediately prior to 4 May 2016”.

Maybe Gleeson is suggesting that he is surprised by these material differences, to the Guidance Note, despite the prior consultations.

While the documents seen under FOI variously refer to discussions about the note there was no prior documented consultations about changes to the Legal Services Directions.

The difference is that the Legal Services Directions have legislative force and they seek to cut off an important “loophole” – the solicitor general’s independent function in providing advice in respect of litigation involving the commonwealth and its agencies.

In his reasons relating to the release of the documents under FOI, Gleeson points out that the briefing direction issued by Brandis, “is the first time the process for briefing the solicitor general has been placed on a legislative basis”.

“The direction binds the solicitor general as well as others. The direction is in a materially different form to the procedures in Guidance Note 11 as it was prior to May 4, 2016.”

So what did George Brandis tell the Senate? He tabled an unequivocal statement that he had consulted the solicitor general in relation to the Legal Services Direction:

Section 55ZF of the Judiciary Act 1903 empowers the attorney general to issue directions, which are to apply generally to Commonwealth legal work, or are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. As the Direction relates to the process for referring a question of law to the solicitor general, the attorney general has consulted the solicitor general.

On 16 July a spokesperson for the attorney general told the Australian Financial Review:

The attorney general consulted the solicitor general about the procedure for briefing and taking advice from the solicitor general in person at a meeting on November 30, 2015 and also asked him to provide feedback in writing. That feedback was provided and considered.

Of course, the 30 November meeting was about the Guidance Note, not about the Legal Services Directions.

Just over a week later Brandis appeared on the ABC’s Insiders where he claimed the changes were to “regularise” arrangements so that all government agencies and departments were aware of the powers of the solicitor general under the Law Officers Act.

Again he claimed that this was discussed with the solicitor general at the 30 November meeting. For Brandis to paint this as regularising “the practice across government to ensure it was in conformity with section 12(b) of the Law Officers Act is also misleading.

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Guidance Note 11, before Brandis’ amendments, described how ministers, departments and agencies could obtain the solicitor general’s advice consistent with s.12(b).

The documents released under FOI suggest the meeting on 30 November 2015 had nothing to do with agencies not being aware of s.12(b), as Brandis told Insiders. Rather it was about how to ensure that when the solicitor general advises on the validity of draft legislation, he is also told about any further amendments and given an opportunity to revise his advice.

The attorney general, the attorney general’s department and the Australian government solicitor all opposed disclosure of the documents subject to the FOI request.

The Senate committee has to plough through a lot of fog. The documents at our disposal contradict claims by the political law officer of the commonwealth that the legislative change to the functions and powers of the independent law officer arose from a process of consultation.