Group representing 200,000 lawyers and law professionals says his legal direction to solicitor general shows ‘gross infringement on office’s independence’

This article is more than 3 years old

This article is more than 3 years old

The Australian Lawyers Alliance has joined Labor in calls for the attorney general, George Brandis, to resign over a controversial legal direction that the solicitor general must get his consent before giving legal advice.

The solicitor general, Justin Gleeson, resigned on Monday after a public disagreement with Brandis over the legality of the direction and whether he was properly consulted before it was made.

On Wednesday Liberal National MP Andrew Laming told ABC Radio the direction was no longer needed because Gleeson is leaving his job.

“It’s not a problem now because you are now appointing someone else [as solicitor general],” he said. “This was done because they didn’t trust Gleeson.”

Laming’s account contradicts Brandis’s claim the direction was issued to regularise ad hoc requests for advice from the solicitor general, and was not aimed at limiting Gleeson’s independence.

On Wednesday the alliance, an advocacy group representing 200,000 lawyers and law professionals, called for Brandis’s resignation, citing his “unacceptable and gross infringement on the independence” of the office of the solicitor general.

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Its national president, Tony Kenyon, said the requirement to seek permission to get advice was “a particularly gross infringement on [its] independence” and would prevent the governor-general, prime minister, other ministers and departmental heads getting advice without consent.

The controversial direction will be disallowed in the Senate after 7 November, when a committee inquiring into the matter reports. Labor, the Greens, Nick Xenophon Team and Derryn Hinch have all said they will vote against it.

“It is of deep concern to the profession that some attorney generals appear to have no regard for important and fundamental safeguards on executive power, such as an independent solicitor general,” Kenyon said.

He cited evidence to the Senate committee from Gabrielle Appleby, the nation’s leading expert on the role of the solicitor general, that Brandis’s actions raise serious concerns for the rule of law, and from a former solicitor general, Gavan Griffith, that the direction was reminiscent of keeping a “dog on a lead”.

Kenyon also noted that former high court chief justice Anthony Mason had described Brandis’s characterisation of the law governing provision of legal advice by the solicitor general as “a stretch”.

Kenyon said if Brandis did not resign he should be sacked by the prime minister because he “has not shown the requisite measure of integrity required of an attorney general”.

On Monday the Law Council of Australia, the peak body which represents all lawyers including state law societies and barristers’ associations, praised Gleeson as a person of “the highest integrity and skill” but made no comment on Brandis’s role in the dispute.

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The president of the Law Council of Australia, Stuart Clark, said Gleeson’s decision to quit over the impasse due to the national interest was “both selfless and honourable”.

“The office of the solicitor general plays a key role in assisting government, ministers and agencies to discharge their responsibilities and observe the rule of law,” he said.

“It is critical that the legal advice which the solicitor general provides to government ministers and their agencies is frank, fearless and independent.”

Labor has repeatedly called for Brandis to resign, accusing him of misleading the Senate by saying he had properly consulted Gleeson about the legal direction.

Brandis denies that he misled the Senate, arguing he had consulted Gleeson at a meeting on 30 November at which the issue of processes for referring advice were discussed. But Brandis did not tell Gleeson he proposed to make the direction.

Any Labor push to censure Brandis in the Senate is unlikely to succeed, as the Nick Xenophon Team indicated on Tuesday it would not support the move. The Greens have reserved their position until the committee reports on 7 November.

Labor has called for a transparent process to replace Gleeson, including a panel chaired by the secretary of the Department of the Prime Minister and Cabinet to draw up a shortlist.

Xenophon has gone a step further, calling for a requirement for parliamentary consultation or approval for senior statutory appointments.

Guardian Australia has contacted Brandis for comment.