Can Stephen Donaghue restore the Solicitor-General’s independence?

By Stephen Easton

Thursday December 15, 2016

Stephen Donaghue has been appointed Commonwealth Solicitor-General, without the restrictive gatekeeping rule Attorney-General George Brandis imposed on his predecessor Justin Gleeson.

Stephen Donaghue
Stephen Donaghue

Obligatory praise has flowed in from all quarters for the Melbourne-based constitutional law expert, “an eminently qualified barrister who will fulfil the role of the Solicitor-General of the Commonwealth with distinction” according to Law Council of Australia president Stuart Clark.

Donaghue represented the Australian Security Intelligence Organisation in the inquiry into the case of Mohamed Haneef in 2008, and acted as counsel assisting the 2001 Cole Royal Commission into the building and construction industry.

In welcoming the new S-G, Clark says the office “plays a vital role in assisting ministers and agencies to comply with the rule of law and to discharge their functions in accordance with the constraints of the law”.

It’s not surprising that Gleeson resigned when his ability to perform that role was curtailed by Brandis, who made himself the gatekeeper to Gleeson’s supposedly independent legal advice by insisting that any requests for the S-G’s opinion go through his own office in writing. The A-G rescinded that rule as soon as Gleeson resigned and other members of the government have indicated it was only imposed as a result of the interpersonal relationship between the two legal officers.

Gleeson said that relationship was “irretrievably broken” when he resigned in October but refused to back down from his position that Brandis had not formally consulted him before imposing the rule, as he was bound to do by law and claims he did through an informal verbal conversation.

He also rejected “absolutely” each and every “attack and insinuation” against him by Brandis, other members of the Coalition and its supporters. Shadow attorney-general Mark Dreyfus, who led the prosecution of Brandis in Parliament on behalf of the opposition, said it should have been the A-G who stepped down.

“Frank, fearless and independent advice is critical to the proper operation of government,” said Clark, who called Gleeson’s decision to resign “both selfless and honourable” at the time.

“The Law Council has every confidence in the ability of Dr Donaghue to provide the impartial advice that the position demands.”

The well-known barrister is a senior fellow of the University of Melbourne’s law faculty and has served on a range of committees, advisory boards and academic bodies that support law reform and the legal profession. Donaghue has been a silk since 2011, has experience in administrative as well as constitutional law and has appeared in the High Court on many occasions.

“Dr Donaghue has been of great service to the Australian legal profession, the Victorian Bar and to the advancement of legal education,” the Law Society president said. “He is an outstanding choice to fill the role of the second law officer of Australia.”

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