The High Risk Terrorist Offenders Bill being considered by the parliament creates what is politely called "a post-sentence preventative detention regime for terrorist offenders".

That is, people can be kept in the slammer indefinitely after they have served their sentence.

New territory

Now the issue here is not whether there are, or aren't, lots of really bad people out there who may wish to do us harm. It is that it takes us to a very different place than we have ever been in a legal sense, and which jurisdictions have been very unwilling in the past to consider even for high-risk violent offenders and serious sex offenders.

Inevitably, such new territory raises constitutional issues, just as did the Abbott government's proposal last year to strip Australian citizenship from joint citizens caught up in terror offences.

Solicitor-General Justin Gleeson SC said his relationship with the AG had become untenable. Alex Ellinghausen

Among the issues that culminated in the resignation this week of Solicitor-General Justin Gleeson was a question of the advice he had given last year on the citizenship proposal.

In the dying days of the Abbott prime ministership, the cabinet was bitterly split on the issue, to the point where Abbott took the extraordinary step of taking the legislation straight to the party room rather than back to cabinet.


His ministers, it was widely reported at the time, had not been able to see advice from the Solicitor-General reassuring them that the government's proposals were constitutional.

The issue re-emerged in recent weeks with revelations that Gleeson was unhappy with the government's assertion to parliament that the SG had signed off on the (still unseen) advice, when he had actually only been consulted on it in some of its iterations. Clear in Gleeson's various remarks has been an implication that he doesn't believe the legislation would withstand a High Court challenge.

Immigration Minister Peter Dutton – whose department, it turns out, ended up drafting quite a slab of the legislation – has said in the past week that the government expects a challenge to its constitutionality.

Potential issues

Labor is now trying to get the government to say whether Gleeson had been given an opportunity to advise on the final version of the High Risk Terrorist Offenders bill, saying Labor members of the parliamentary joint intelligence committee can't comment on the bill until they know for sure. The argument is that they want to be assured of its constitutionality, when several submissions to the committee have raised potential issues.

Shadow attorney-general Mark Dreyfus says the opposition's interest is in ensuring the constitutionality of the bill. But let's be pragmatic here: Labor obviously also wants to continue to politically milk the issue of the Gleeson affair.

Whatever happens in the committee, the fallout from Gleeson's resignation, and the breakdown of his relationship with Attorney-General George Brandis, is that it puts more political spin on the Solicitor-General's opinions in the future than is desirable.

It's not like such opinions haven't been used in the past on plenty of occasions to justify a government's actions.


The Howard government Immigration Minister who cancelled Muhamed Haneef's visa, Kevin Andrews, for example, cited advice from the solicitor-general that he was within his rights to have done so.

But there should have been signs of trouble coming – in terms of the new and selective approach the Coalition under Tony Abbott would take to such advice – when, during the period of minority government, the Abbott-led opposition preferred a shadow minister's legal view on providing a pair for the Speaker against a contrary opinion of the solicitor-general (Gleeson's predecessor).

The government has been keen this week to imply that the problem between Brandis and Gleeson revolved around the Solicitor-General's decision to speak to the shadow attorney-general during the caretaker period.

This is just a little too cute. The conversation of less than two minutes' duration, according to what Gleeson told a Senate committee, occurred after Brandis had tabled a direction nobbling the Solicitor-General and around nine months after Gleeson had first written to his boss expressing his concerns about being cut out of, and/or being misrepresented in, a number of major constitutional issues. The ones we know about are the citizenship laws and same-sex marriage.

Sat back and watched

For the rest of us, the important issues should be first, whether governments receive, and take on board, serious legal advice that doesn't suit them and second, why there was apparently no internal process that meant someone saw the trainwreck coming between Brandis and Gleeson and thought it might just be a good idea to intervene. Why the Attorney-General's Department sat back and watched this debacle unfold, for example, is a mystery.

The same applies to the breakdown in the relationship between Barnaby Joyce and his former department head Paul Grimes, who felt so agitated that he wrote to advise his minister "that I no longer have confidence in my capacity to resolve matters relating to integrity with you".

Not all public servants are perfect but they have a lot more to lose than their bosses in kicking up a fuss.

Respecting the public service does not mean being nice to them. It means respecting institutions and using them effectively. Because no matter how many public servants you sack, or hound out of office, the institutions that you will rely on in future will last longer than you do. You may, however, have diminished them to our collective detriment.

Laura Tingle is The Australian Financial Review's political editor.