George Brandis damage: the central question for Malcolm Turnbull
Mark Kenny
29 November 2016
Video duration
02:07
George Brandis drops Joe Hockey in it
Doubtless, Malcolm Turnbull takes comfort in knowing the latest controversy engulfing his accident prone Attorney-General turns on impenetrable legal intricacies.
That complexity helps explain why the opposition has struggled to pin George Brandis down.
Driving its umbrage is last Friday's report in The West Australian alleging that, as first law officer, Brandis had instructed the then solicitor-general Justin Gleeson not to run a particular (and highly persuasive) constitutional argument in Bell Group-related High Court proceedings, because it would scupper Canberra's financial accommodation of the conservative West Australian government
Gleeson ran the argument anyway, while acting for the Australian Taxation Office. Constitutionally, it was a slam-dunk and was emphatically vindicated by a 7-0 decision of the full bench.
Vindicated but hardly celebrated.
The West Australian's story provides the missing piece of a puzzle: an apparent explanation as to why the relationship between Brandis and Gleeson broke down so irretrievably. And a plausible motive for Brandis' provocative decision to curtail Gleeson's professional autonomy.
That move by Brandis culminated in Gleeson's resignation last month. Until now, it was unclear just why relations between the two men had spiralled down so sharply.
In his legalistic explanation to the Senate on Monday, Brandis appeared to lay out exhaustively his actions. This included rejecting the suggestion he was motivated by a deal hatched previously between the then federal treasurer Joe Hockey and his West Australian counterpart to forfeit Commonwealth tax revenue owed by the Bell Group.
The ATO was seeking the recovery of about $300 million in unpaid taxes.
What was not definitive in the Attorney-General's statement was whether he had at any point instructed Gleeson to withhold an argument in the High Court to protect this interest. Brandis claims legal privilege as to the pair's specific communications, and Turnbull responds to all questions by pointing to the pseudo-exhaustive Brandis statement.
This is crisis management 101.
So, in the absence of Brandis waiving any legal privilege, the responsibility for integrity assurance moves to Turnbull. To wit: what steps he may have taken to assure himself that his minister had not implicitly or explicitly instructed the solicitor-general to betray the Commonwealth interest in favour of a state.
As it happens, this was asked of Turnbull on Tuesday. "The Attorney, as he just noted, has addressed all of these matters in his statement in the Senate, which you said was lengthy but I'm sure it was nonetheless captivating," he responded.
Of course it is conceivable that Turnbull had already obtained direct details of what transpired between Gleeson and Brandis regarding the Bell Group litigation, in which case he should reveal the fact of those queries at least, if not the actual details themselves.
The alternative is that he neither knows the details nor cares, and is content with the Attorney-General's assurances, assurances that skirted the central matter of his precise instructions to the solicitor-general.
AND another inquiry!
George Brandis to face inquiry into actions over Bell Group scandal
2 November 2016
Senate votes for inquiry which will examine whether there was a deal between the federal and WA governments which cost the tax office $300m
The attorney general, George Brandis, will face his second major parliamentary probe in a matter of months – this time, an inquiry into his actions in relation to the Bell Group controversy. The Greens and Labor on Tuesday afternoon secured the requisite crossbench numbers to force an inquiry by the Senate’s legal and constitutional affairs references committee – a move following days of political controversy.
The new inquiry will also call the finance minister, Mathias Cormann, to give evidence. Attorney general George Brandis has faced mounting political pressure this week over whether there was a deal between the federal and Western Australian government over litigation surrounding the collapsed Bell Group. The investigation will examine conflicting accounts over whether or not there was a deal between the federal and West Australian governments in 2015 which would have cost the Australian Taxation Office $300m.
Brandis has faced political pressure this week after a report in the West Australian last Friday alleged that the attorney general instructed the then solicitor general, Justin Gleeson, not to run a particular argument in the high court when a creditor of the collapsed Bell Group, which is associated with the controversial businessman Alan Bond, and its liquidator, challenged the constitutionality of a Western Australian law to take control of the group’s $1.8bn.
That report forced the attorney general to make a 30-minute statement to the Senate on Monday outlining his actions in relation to the controversy.
Brandis told the Senate he did not believe there was a deal between the commonwealth and the Western Australian government over litigation surrounding the collapsed Bell Group – and if there was any such agreement, he had no knowledge of it. The conversations with the WA government had been undertaken by the former treasurer, Joe Hockey, now Australia’s ambassador in Washington, Brandis said. Hockey, thus far, has declined to comment.
The attorney general has refused to divulge the detail of his conversations with Gleeson over the related high court proceedings, citing legal professional privilege, but he told journalists on Monday he had not instructed Gleeson to run dead in the high court action.
As well as examining “the nature and scope of any agreement reached by the commonwealth and Western Australian governments in relation to the distribution of proceeds” of the Bell Group liquidation, the new inquiry will also examine the attorney general’s actions in relation to the solicitor general.
The terms of the motion passed by the Senate require the committee to examine “any direction or instruction given by the attorney general to the solicitor general, either directly or through his office or department, in relation to the conduct of litigation concerning the proceeds”.
The committee will also explore whether there is any connection between the Bell case and a controversial direction to the solicitor general issued by Brandis subsequently. The legal services direction curtailed Gleeson’s capacity to provide independent advice, prompting a spectacular public blow-up between Australia’s first and second law officers, which culminated in Gleeson quitting his post.
The new inquiry will project the Bell Group controversy into the new political year, because the inquiry has a reporting date of 21 March 2017. Reshuffle speculation has been doing the rounds in Canberra over this final parliamentary sitting week for 2016.
In question time on Tuesday, the prime minister was reminded by the ALP that exactly this time last year, Turnbull stood at the dispatch box and expressed full confidence in then ministers Jamie Briggs, Mal Brough and junior frontbencher Stuart Robert.
All of those MPs subsequently lost their frontbench spots. The Labor leader, Bill Shorten, asked Malcolm Turnbull on Tuesday: “One year on, in the last week of this parliament for this year, will the prime minister express the same full confidence in the attorney general?” The prime minister smiled before answering: “Of course I do.”
Labor and the Greens secured the support of One Nation’s Rod Culleton – who split with his fellow senators during the vote – the NXT bloc of three Senators, the Tasmanian independent Jacqui Lambie and the Justice party senator, Derryn Hinch, for the new inquiry.
The inquiry was opposed by the Coalition, the remaining three One Nation senators and the Liberal Democratic party senator David Leyonhjelm.