Australia’s attorney general, George Brandis, has a disturbing tendency to meddle with the independence of agencies within his portfolio of responsibilities.

We’ve seen this with the Australian Human Rights Commission, the Australia Council when he was arts minister, to some extent with the Law Reform Commission and now with the functions of the second law officer of the commonwealth, the solicitor general.

Justin Gleeson SC, a highly qualified lawyer and advocate, was appointed solicitor general by Labor attorney general Mark Dreyfus in February 2013. His job involves arguing the commonwealth’s important cases in the high court and in international courts (eg the Japanese whaling case before the international court of justice) and giving top-level legal advice to ministers and government agencies.

It is vitally important that the solicitor general gives advice that is independent and legally sustainable and not merely suitable to the political interests of the party in power.

In practical terms, the solicitor general brings intellectual heft at the apex of the government’s internal legal apparatus, particularly in circumstances where the attorney general is more a politician than a lawyer.

Last month, just before the election was called, George Brandis issued a legal services direction under the Judiciary Act to say that no government official or minister, not even the prime minister, can seek the advice of the solicitor general without first having the written, signed, approval of the attorney general.

While Gleeson was always accountable to Brandis and technically the attorney general could formally control issues upon which the solicitor general advised, this new directive substantially changes the balance between the first and second law officers of the commonwealth.

Ministers and heads of agencies are no longer free to go directly to the solicitor general for advice. The attorney general now decides at the threshold who can seek legal opinions from the government’s top independent statutory lawyer. Associate Professor Gabrielle Appleby from the University of NSW law school has studied the office of the solicitor general and written extensively on it, most recently in a new book, The Role of the Solicitor General: Negotiating Law, Politics and the Public Interest.

She says this directive from Brandis, “is an assertion of control by the attorney general over the solicitor general for no immediately perceptible reason”.

One perceptible reason might be that the attorney general wants to restrict access to the solicitor general while at the same time farming out more advice work to the private bar where politically agreeable opinions are readily on offer. If this is so, it undermines the functions of the solicitor general and is an affront to the rule of law.

Apart from that, Appleby says there could be a chilling effect on ministers wanting the solicitor general’s advice if they have to get Brandis approval and signature to do so. It certainly takes the solicitor general’s “accountability” to a whole new level. Observers of the internal workings of the attorney general and solicitor general dynamic say there have been some disturbing disagreements, which have led to the directive that undermines Gleeson’s independent functions.

It is understood there was dissent about the legal advice that the attorney general sent to the governor general over proroguing parliament for two days so that the government could clear the notice paper and attempt to control the Senate’s agenda. It is understood that opinion was briefed by Brandis to a private barrister in Sydney.

Another matter that caused disagreement concerned legislation by Western Australia for a government agency to take control of the assets of the Bell Group (in liquidation). The companies in the group have been the subject of long running litigation in which the Australian Taxation Office claims a substantial amount in unpaid taxes.

Normally the commonwealth would have supported the ATO’s litigation, instead the government in Canberra seemed to prefer the method adopted by the WA government of taking charge of the group’s assets and distributing them on a non-judicial basis.

In the end, the high court last month found the Western Australian Bell Act to be invalid, but in the meantime there had been strong differences of opinion about the best legal position to adopt.

Brandis’s office offered a strange justification for the legal service directive, claiming there was “uncertainty in government about the procedure for briefing the solicitor general” and the new arrangement seeks to “clarify the procedure for briefing and taking advice from the SG”.

Since the directive now makes access to the solicitor general less certain, it can only be assumed that the real purpose of the change is to enable Brandis to more tightly circumscribe who can seek advise and to what ends.

The attorney general is not without form in these matters. He has persistently sought to refocus the Human Rights Commission so that it is dedicated to protecting individual liberties, such as free speech, rather than enforcing the Racial Discrimination Act.

HRC president Gillian Triggs got into hot water with Brandis over her report into children held in immigration detention – the AG insisting that this was not an investigation that should have been done during the period of the Abbott government which, apparently, has shown nothing but kindness to these imprisoned youngsters.

Brandis sought to sideline Triggs as president of the HRC by offering her an alternate posting and as a result he was censured by the Senate as being unfit to hold the office of attorney general.

After giving the Australian Law Reform Commission an ideologically loaded and unwieldy investigation into encroachment into rights and freedoms by commonwealth law, he then refused to give this top-rated research body any additional work for nearly two years.

Ultimately he came up with an ALRC reference on how to safeguard and protect old people from misuse or abuse by “formal and informal” carers, supporters and others, an exercise that doubles up on various other inquiries into much the same topic: a 2014 ALRC report on equality, capacity and disability in commonwealth laws, a Senate committee document on abuse and neglect against the disabled, and a House of Representatives study on old people and the law.

We’ve also seen the attorney general politicise the courts at welcome and farewell ceremonies for judges of the federal circuit court. At the farewell ceremony for Judge Stuart Roberts in Launceston, held a few weeks into the election campaign, Brandis used the occasion to lavish praise on the local MP, Andrew Nikolic (Liberal, Bass).

When Judge Anne Demack was appointed to sit in the Rockhampton federal circuit court, at the bar table alongside Brandis at her welcome ceremony was the local National party MP, Michelle Laundy, who is not a lawyer and would be regarded professionally as not having a “right of appearance”.

Not only did Laundy make a speech in which she mispronounced the judge’s name and the name of the bar’s representative but then held a press conference outside the court with Brandis. It was noted by the lawyers in attendance that Laundy holds the seat of Capricornia by a slim margin.

Just days before the government went into caretaker mode, the attorney general announced 76 appointments to the Administrative Appeals Tribunal, among who were party functionaries, ideologues or political backroom operatives:

Dennis Dragovic, who sought Liberal preselection for Goldstein;



Judith Troeth, a former Liberal senator and Brandis’s factional ally;



Saxon Rice, former Queensland Liberal MP;



Michael Manetta, a Liberal candidate for the South Australian parliament;



Adrienne Milbank, who has called for the UN refugee convention to be ditched; and



Anne Brandon-Baker, Scott Morrison’s chief of staff.

The office of attorney general is unique in the parliamentary system because it entails both political and legal functions. The mark of a good attorney general is to keep those functions rigorously separate and to protect the independence of the legal agencies and courts that are part of his or her responsibility.

On that score, the current attorney is not travelling well.