Brandis Gleeson Correspondence re Guidance Note 11

Timeline of the Discussion between Attorney-General and Solicitor-General about the process of seeking advice. Released under FOI. Prepared by Vince O’Grady 19 Oct 2016.

This is the available evidence of the correspondence between the two offices. It is taken from the Freedom of Information Documents released under FOI S-G 01/2016 and  the submissions of the Solicitor-General and the Attorney-General to the Senate Legal and constitutional Affairs Committee.

The functions of the Solicitor-General are:

12(a) to act as counsel for:

                              (i)  the Crown in right of the Commonwealth;

                             (ii)  the Commonwealth;

                            (iii) a person suing or being sued on behalf of the Commonwealth;

                            (iv)  a Minister;

                             (v)  an officer of the Commonwealth;

                            (vi)  a person holding office under an Act or a law of a Territory;

                           (vii)  a body established by an Act or a law of a Territory; or

                          (viii)  any other person or body for whom the Attorney-General requests him or her to act;

12(b) to furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General; and

12(c) to carry out such other functions ordinarily performed by counsel as the Attorney-General requests.

Guidance Note 11 is Guidance to anyone in the commonwealth who uses the Solicitor-General and the Legal Services direction is a Legally binding instrument that the Solicitor-General has to follow.

The guidance note has no penalty or legal consequence of not following it but the Solicitor-General has a legal obligation to follow the Direction.

Apparently the S-G was not happy that the people asking him for advice were following the guidance note, or conforming to his functions under the act and so requested a clarification with the Attorney-General.

A meeting was held on 30th of November 2015 where the S-G’s concerns were aired. The S-G then wrote a note to the attendees showing actions and asking for comments.  The A-G’s office did not answer.

The S-G then (in consultation) with the Australian Government solicitor and the OLSC  (Office of Legal Services Coordination, Attorney-General’s Department.) proceed to change the Guidance Note 11.

The guidance note was finalised for a meeting on 23rd March 2016 and circulated to all concerned.

NONE of the emails about the changes mention a new Legal Services Direction.

On 4th May 2016, a day before Parliament rose and 4 days before the Prime Minister visited the Governor General to call the Double dissolution election, The Attorney-General George Brandis wrote to the Solicitor-General and enclosed the revised Guidance Note 11 as well as an amended Legal Services Direction.

On 11 May 2016 the Solicitor-General wrote to the Attorney-General refuting that the A-G had carried out his legally binding duty to “Consult” with the S-G about this new Direction.

In a nutshell the S-G’s argument is that the Direction is “Ultra Vires” which basically means beyond Brandis’s power to change the terms of the 12(a) functions.

Brandis argues that he doesn’t change those powers and that because the guidance note changes are also reflected word for word in the Direction he had in fact consulted.

The Direction is what is known as a disallowable instrument and for this to happen must be put to a vote in the Senate (parliament).

There are several issues in this feud. They are.

1/ The issue of Brandis affirming in the parliament that the S-G has given legal advice on a bill before the house when he hadn’t. The S-G had given advice on several versions of a bill but not on the final bill which was different than the ones he had given advice on.

2/ The issue as to whether Brandis had consulted Gleeson on the Legal Services direction he sent to Gleeson on 4th May 2016.

3/ The issue of whether the stated functions for people under 12(a) of the Law officers act 1964 could be changed to only going through the A-G.

4/ The final issue of whether the A-G should have consulted the S-G as to whether the changes in the Legal Services direction were Legal in the first place. Clearly the S-G didn’t think they were and hadn’t had an inkling that the Direction was to be issued which sort of proves that he had not been consulted.

It is my contention that this government flys very close to the wind in terms of the legislation they want to pass and that maybe the Solicitor-General doesn’t give them the Legal opinions they want to hear. So maybe they wanted to clip his legal wings. Falling into their own trap of once again flying close to the legal boundaries. As evidence for this there are serious questions to be asked about the Turn back and repatriation policies of this government in regard to refugees. The refoulment provisions of the Refugee conventions are clear. Australian is not abiding by them.

Meanwhile the Solicitor-General has tendered his resignation. A sad day for Australia.

For completeness the reader is also advised to read the submission of the Attorney-General and the Solicitor-General on the Website of the Senate Senate Legal and constitutional Affairs Committee.

For the sake of clarity the following abbreviations mean:-

A-G                        Attorney-General

S-G                         Solicitor-General

ADG                       Attorney-Generals department.

AGS                       Australian Government Solicitor.

OLSC                      Office of Legal Services Coordination, Attorney-General’s Department.

Thursday 12th November 2015.

Letter from S-G to A-G regarding issues with the issuing of advice on Bills before the parliament and asking for a meeting to discuss. Copy to The Secretary of the AGD.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 18-21(incl)/48

Monday 30th November 2015

Meeting with A-G, S-G re Legal issues.

Tuesday 8th December 2015.

Email from Solicitor-General’s office to Joshua Faulks, Executive advisor to the

Secretary, Ian Govey (AGS) Time 4.11.PM.

Subject of email:  Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – meeting notes

[DLM=Sensitive:Legal]

Body:    Typed Meeting Notes and Action items of 30th November 2015 for the A-G and

Secretary of the Attorney-General’s department for information and comment.

Meeting Outcome point 2/ Discussion on Guidance Note 11.

Reference Document 1 of FOI S-G 1/2016. And

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 22 and page 26 /48

Note on Page 26 the time of the email is 4.12 PM

Tuesday 8th December 2015.

Email from Solicitor-General’s office to Ian Govey (AGS), Executive advisor to the

Secretary, Time 4.27.PM.

Subject:  FW: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Grateful to pass to Secretary.Also grateful for your (Ian Govey’s) comments.

Reference Document 5 of FOI S-G 1/2016.

Wednesday 9th December 2015

Email from Executive advisor to the Secretary to Petra Gartmann.

Subject: FW: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body:    Petra

I am assuming your Branch would take the lead on providing any comments on the

Suggest revisions to guidance note 11?

Reference Document 7 of FOI S-G 1/2016.

Friday 11th December 2016.

Email from Executive assistant to Ian Govey (AGS) to Counsel assisting the S-G.

Time 11.54 AM.

Subject: Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – meeting notes

[DLM=Sensitive:Legal]

Body:    I agree with these notes but would like to add a 5th point.

  1. Consideration be given to whether a direction to AGS is required to facilitate AGS

Providing the rest of AGD material that AGS has not been authorised to provide.

I’d be happy to elaborate on why I raised this issue at the meeting if it would assist

Regards

Ian

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 24/48

Wednesday 16th December 2015

Email from Legal Assistant to Ian Govey to S-G. Time 4.35.PM.

Subject. RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Need (useful) to have a meeting between Ian Govey and S-G or his representative.

Reference Document 5 of S-G 1/2016

Wednesday 16th December 2015

Email from Legal Assistant to Ian Govey to S-G. Time 5.49.PM.

Subject. RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Apologies something about an email address.

Reference Document 5 of S-G 1/2016

Wednesday 16th December 2015

Email from Counsel assisting the S-G to Ian Govey Time 6.32.PM.

Subject. RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Happy to meet or discuss over phone next week.

Reference Document 5 of S-G 1/2016

Friday 18th December 2015

Email from OLSC officer to Counsel assisting S-G’s office. Time. 9.03.AM

Subject:  RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body: Further the emails below between , and our Branch Head Petra Gartmann,

OLSC has prepared some comments in relation to the proposed revisions to Guidance Note 11.

We would appreciate your advice whether your proposed discussion timeframe

would allow us a short indulgence of time, to allow consultation with Jim Faulkner

and his team, and others as may be necessary.

Reference Document 7 of S-G 1/2016

Friday 18th December 2015

Email from Counsel assisting S-G’s office to OLSC officer. Time. 9.54.AM

Subject:  RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body: Thank you for speaking with me earlier.

As discussed, it would be very helpful if we could receive comments by the end of

today or first thing Monday

Reference Document 7 of S-G 1/2016

Friday 18th December 2015

Email from OLSC officer to Counsel assisting S-G’s office. Time. 4.32 PM

Subject:  RE: Amendment to Guidance Note 11 – briefing the SG – proposed

Comments [DLM=Sensitive:Legal]

Body:    OLSC comments on revisions to Guidance Note 11 on Briefing the Solicitor-

                                                General

                                                Suggestions attached.

Reference Document 8 of S-G 1/2016

Friday 18th December 2015

Email from Counsel assisting to S-G’s office OLSC officer. Time. 4.45 PM

Subject:  RE: Amendment to Guidance Note 11 – briefing the SG – proposed

Comments [DLM=Sensitive:Legal]

Body:    Thank you for those comments.

I will discuss them with the Solicitor-General and contact you at a later date

for further discussion

Reference Document 8 of S-G 1/2016

Friday 18th December 2015

Email from OLSC officer to Counsel assisting S-G’s office. Time. 4.58 PM

Subject:  RE: Amendment to Guidance Note 11 – briefing the SG – proposed comments [DLM=Sensitive:Legal]

Body:    Thanks – we greatly appreciate the extra time afforded us to crystalise some

of our thinking. We are very happy to continue the discussion.

Reference Document 8 of S-G 1/2016

Tuesday 22nd December 2016.

Email from Counsel assisting the S-G, to Executive assistant to the Secretary and Ian Govey Time 12.18 PM.

Subject:  Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – finalised meeting notes

[DLM=Sensitive:Legal]

Body:    Paraphrased— Finalised meeting notes sent to adressees. Asked to pass onto

Secretary.

Please ask the Secretary of AGD to comment and once that is done will pass it to Josh Faulks (Deputy COS to A-G) for A-G’s attention.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 26/48

Thursday 24th December 2016

Email from Executive assistant to secretary AGD Time 11.53 AM.

Subject:  Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – finalised meeting notes

[DLM=Sensitive:Legal]

Body:    Secretary has no concerns with the notes.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 26/48

Tuesday 5th Jan 2016

Email from Legal Assistant to Ian Govey to various AGS personnel and CC Counsel

Assisting S-G. Time 2.39 PM.

Subject: FW: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body:    I spoke with Counsel assisting in late December about the changes proposed

by the SG’s previous counsel assisting to Guidance Note 11.

Reference Document 10 of S-G 1/2016

Friday 4th March 2016

Email from Counsel assisting S-G to Moraitis, Chris; Anderson, Iain; Faulkner, James; Govey, Ian;

Howe QC, Tom; Gartmann, Petra Time: 12.16 PM

Subject: Guidance Note 11 – proposed changes [DLM=Sensitive:Legal]

Body:       Dear all

I attach the most recent version of the Solicitor-General’s proposed changes

to Guidance Note 11.

The changes take into account the suggestions AGD and AGS made on the

draft this Chambers circulated in December 2015.

I would be most grateful if you could provide any comments you have on

this version by close of business on 11 March 2016.

As always, happy to discuss.

Kind regards

Contains files of Guidance Note 11 4 March 2016 and Markup of same 4

March 2016.

Reference Document 15 of S-G 1/2016

Friday 11th March 2016.

Email from OLSC officer to Counsel assisting the S-G  Copies Gartmann, Petra; ;

S-G_Briefing Time 5.34 PM.

Subject: Guidance Note 11 – 4 March 2016 [SEC=UNCLASSIFIED]

Body:       Dear Counsel assisting.

Thank you very much for all your hard work in relation to the preparation of

this document.

We have suggested some minor changes for your consideration (these are marked-up for ease of reference).

Please call me if you would like to discuss..

Contains redacted version of the Guidance note.

Reference Document 16 of FOI S-G 1/2016.

Friday 11th March 2016.

The Office of the Attorney-General receives a copy of the suggestions the

Solicitor-General has made to modify Guidance note 11.

Sub 05 deals with Paragraph 18 of the Solicitor-Generals suggestions

 

Reference Document Sub 05 to the Senate Legal and constitutional Affairs Committee.

Paragraph 19 Page 6/32

Monday 14th March 2016.

Email from Counsel assisting the S-G to OLSC officer Copies to Gartmann, Petra; ;

S-G_Briefing; plus redacted. Time 12.54 PM

Subject: RE: Guidance Note 11 – 4 March 2016 [SEC=UNCLASSIFIED]

Body: Thanks OLSC officer, that is very helpful

Attached was an image of acknowledgement to the Traditional owners of

the land.

Reference Document 16 of FOI S-G 1/2016.

Friday 18th March 2106

Email from Tom Howe (AGS) to Counsel assisting S-G with copies ; ; Moraitis, Chris;

Anderson, Iain; Faulkner, James; Govey, Ian (AGS); Gartmann, Petra Time 2.09 PM.

Subject: RE: Guidance Note 11 – proposed changes [DLM=Sensitive:Legal]

Body:    Hello

Please find enclosed input from Ian and me, based on the clean version of

the document circulated yesterday by you.

Hopefully the suggested changes are self-explanatory. Cheers,

Tom

Redacted Guidance Note 11.

Reference Document 17 of FOI S-G 1/2016.

Friday 18th March 2106

Email from Counsel assisting S-G with copies to Tom Howe (AGS) copy Ian Govey

(AGS). Time 2.15 PM.

Subject: RE: Guidance Note 11 – proposed changes [DLM=Sensitive:Legal]

Body:    Hi Tom

Thank you for those suggestions (all of which are indeed self-explanatory).

I appreciate you and Ian taking the time to provide the suggestions.

Kind regards

Reference Document 17 of FOI S-G 1/2016.

Friday 18th March 2106

Email from OLSC officer to Counsel assisting S-G.

Copies to redacted and Gartmann, Petra. Time 2.30 PM

Subject: Guidance note 11 [DLM=Sensitive:Legal]

Body:    Dear Counsel assisting,

Please find attached the collated changes of OLSC, OCL, AGS OGC and Tom

Howe QC PSM to the revised draft of Guidance Note 11, in both clean and

mark up.

Please feel free to give me a call if I can be of any further assistance.

The collated briefing for legal issues meeting will hopefully be out before

cob today

Reference Document 18 of FOI S-G 1/2016.

Friday 18th March 2106

Email from Counsel assisting S-G with copies OLSC officer.

Copies to redacted and Gartmann, Petra. Time 2.35 PM

Subject: RE: Guidance note 11 [DLM=Sensitive:Legal]

Body:       Thank you

I will need to run this final version of the Guidance Note by the Solicitor-

General before it is sent to the Attorney’s Office together with the other

brief materials.

I do not anticipate the Solicitor-General will have any objections to the changes made since I last circulated the Guidance Note. However, out of an abundance of caution, I would be grateful if you could wait until I have had an opportunity to speak with the Solicitor-General. The Solicitor-General is in the High Court this afternoon and I will not have an opportunity to speak with him about the Note until Monday afternoon.

I hope that does not create too much of an inconvenience.

Kind regards

Monday 21st March 2016.

Email from Petra Gartmann (Assistant Secretary office of Legal Services Coordination

Attorney-General’s Department) to Brandis, George; Gleeson, Justin; Moraitis, Chris; Govey, Ian

(AGS); Anderson, Iain Copies to Manning, Greg; ; ; Lambie, James; Howe, Tom (AGS);Time. 5.00 PM

Subject of email: Legal Issues Meeting – 23 March – Briefing Material [DLM=Sensitive:Legal]

Contents (attached)   agenda

monthly report for discussion

current Guidance Note 11 (of July 2015)

revised Guidance Note 11 (both a clean copy and a marked up copy).

(Redacted)

Item 4 of 5 on the Agenda was Guidance Note 11, Discussion to be led by

The Solicitor-General. (Agenda Items 1,2,3,5 redacted)

Reference Document 2 and Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 29 and Page 33/48

Monday 23st March 2016.

Meeting Held.

Tuesday 24th  March 2016.

Email from Petra Gartmann (Assistant Secretary office of Legal Services Coordination

Attorney-General’s Department) to Brandis, George; Gleeson, Justin; Moraitis, Chris; Govey, Ian (AGS); Anderson, Iain Copies to Manning, Greg; ; ; Lambie, James; Howe, Tom (AGS); ; Faulks, Joshua plus redacted Time. 3.18 PM

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,

DLM=Sensitive:Legal]

Body:    Good Afternoon

I refer to yesterday’s Legal Issues Meeting and confirm the following

action items:

  1. Attorney-General to consider proposed changes to Guidance note 11

and come back with his views in the week commencing 4 April.

Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 29/48 Time of this email is 3.17 PM

Tuesday 12th April 2016

Email from Counsel assisting S-G to Petra Gartmann. (OLSC) copies to OLSC officer. Time 12.01 PM.

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,

DLM=Sensitive:Legal]

Body:    Hi Petra

The Solicitor-General has asked me to check with you whether you have heard anything from the Office about Guidance Note 11.

Kind regards

Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 32/48

Tuesday 12th April 2016

Email from Petra Gartmann. (OLSC) to Counsel assisting S-G copies to OLSC officer. Time 12.07 PM.

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,

DLM=Sensitive:Legal]

Body:    Hi

I have not yet heard anything but can follow up with the office on Thursday to get a sense of timing (The AG and James Lambie are travelling at the moment and unlikely to have time to speak with me until after they have returned hence Thursday is the earliest I can seek the update)

Regards

Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 31/48 (Destinations not redacted)

Friday 29th April 2016-10-19

Email from Counsel assisting the S-G to Petra Gartmann (OLSC). Copies OLSC officer. Time 2.45 PM.

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,

DLM=Sensitive:Legal]

Body:    Hi Petra

I just wanted to follow up to ask if you had any further updates on Guidance Note 11.

Thanks

Reference Document 21 of FOI S-G 1/2016.

Friday 29th April 2016.

Email from, Petra Gartmann (OLSC) to Counsel assisting S-G Copies to OLSC officer. Time 5.26 PM.

Subject:               RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED, DLM=Sensitive:Legal]

Body:    Hi

I understand the AG is writing directly to the SG about this.

Regards

Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 31/48

Wednesday 4th May 2016.

Letter from the Attorney-General to the Solicitor-General with a copy of New Guidance Note 11 and an amendment to the Legal Service Directions 2005.

Both are attached

There is a declaration under Section 17 of the Legislative Instruments Act 2003 that

the A-G has consulted.

Section 55ZF of the judiciary Act 1903 gives the A-G the power to make Legal

Directions.

Reference Document 3 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 34/48

Tuhrsday 5th May 2016.

Last day of parliament before the DD Election.

Sunday 8th May 2016.

Malcolm Turnbull Visits to Governor General and calls a Double Dissolution Election.

Wednesday 11th May 2016.

Letter from S-G to A-G.

Subject:                               None.

Body: Paraphrased—- Refers to letter of 4th May re Guidance Note and Legal Services

Direction. S-G says “I do not accept that the Direction was the subject of prior consultation

with me.”

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 48/48

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One thought on “Brandis Gleeson Correspondence re Guidance Note 11

  1. Gee Vince after reading your great work, I just looked at most of Gleeson’s [and George’s] testimony to the Senate Committee on Legal and Constitutional matters on the 14/10/16 and in the interest of objectivity I invite anyone to give any basis for not accepting Gleesons’ evidence. I suppose this is really a jury-type function and in that vein I could not but think Gleeson was overwhelmingly credible – body language, verbal precision, focus on answering question asked, politeness etc. God help MacDonald, Barry O’Sullivan and the poor follower Reynolds.

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