By Norman Abjorensen
The imbroglio in which federal Attorney-General George Brandis finds himself is, for all its complexity, far from unique; it is merely the latest in a long series of incidents in which the holders of this key office have found themselves mired in controversy and in conflict with the legal establishment.
The office itself offers more than the usual political risk faced by ministers, stemming largely from its peculiar nature – what has been called a hybrid office of state combining policy function, legal service function and public interest function. The roles are seldom clearly distinguished and, indeed, can easily come into conflict if not carefully managed.
Legal acuity and political skills do not always co-exist, and a long succession of attorneys-general has been a source of trouble – even embarrassment – for their respective governments, just as Senator Brandis is now. Going back a little, those with historical memory will remember the hapless Daryl Williams, Attorney-General in the Howard government, visibly flinching in Parliament as he sought to defend his draconian anti-terrorist legislation that would have denied suspects access to a lawyer. In the short-lived Whitlam government in the 1970s, Lionel Murphy was seldom far from the headlines, neither as Attorney nor as a High Court judge. And back in the McMahon years, an embattled Attorney-General, the late Ivor Greenwood, developed such a passion for law-and-order issues that he quickly acquired the sobriquet "Ivor the Terrible."
But in terms of a parallel for a damaging breach, such as Brandis' toxic relationship with the Commonwealth's second law officer, former Solicitor-General Justin Gleeson, over attempts to curtail his independence – one needs to back even further to the first decade of federation and the government of George Reid, Australia's fourth prime minister (1904-5).
Attorney-General George Brandis is thought to be among those Prime Minister Malcolm Turnbull wants to shift.Credit: Andrew Meares
Reid's Attorney-General, the prickly Sir Josiah Symon, a leader of the Adelaide bar, was miffed at having been overlooked for the High Court, and embarked on a war of words with the court, embroiling all three justices, over a range of matters such as sittings, travel allowances, employment of associates and even, interestingly, the cost of bookshelves (Senator Brandis, it will be remembered, charged taxpayers for a new bookcase costing more than $15,000 after having earlier received a $7000 taxpayer-funded bookcase that could not be moved into his new office).
Symon took exception to a request from the Chief Justice, Sir Samuel Griffith, for some bookshelves to be installed in the Sydney offices of the High Court so that he could move his law library from his home city of Brisbane. The court, while based in Melbourne, often sat in Sydney, with Griffith required to undertake a two-day train trip when travelling to Melbourne. Symon rejected the request and criticised Griffith for holding any sittings outside Melbourne. He then began intrusive inspections of all three judges' travel expenses.
The judges, one of whom was former prime minister Sir Edmund Barton, were so aggrieved by Symon's actions that they even contemplated going on strike, and in early 1905 actually postponed scheduled sittings. Even more drastically, the three justices considered resigning; Griffith called the Attorney's actions "persecution".
Prime Minister George Reid, who learnt of the dispute two months after it began only when Griffith sent him copies of the correspondence, sought to intervene but was attacked by Symon and accused of joining with the judges in a conspiracy against him. With Griffith threatening to go public, Reid soon found out that Barton had sent copies of the correspondence to Alfred Deakin, the Protectionist leader and arch foe of Reid who, if Parliament were in session, would certainly have raised the issue, probably bringing down Reid's government with its wafer-thin majority. The issue was known to very few, but in May Griffith broke his public silence and the press began asking questions.
As it turned out, the issue resulted in Parliament not sitting after rising at the end of 1904 until June 1905, the longest recess yet, and perhaps artificially extending the life of Reid's fragile Free Trade-Protectionist government, which fell soon after.
The stand-off with the High Court was resolved when the Reid government lost office after Deakin moved against it (although not specifically over the Symon issue). The new attorney-general (and future chief justice) Isaac Isaacs permitted the judges to travel. Later, in 1930, when Symon, long gone from politics, was president of the Adelaide branch of the Royal Empire Society, he was an outspoken opponent of the nomination of Isaacs as Governor-General of Australia.
In hindsight, Reid should have sacked Symon who, as a senator, would not have affected Reid's numbers in the House of Representatives. While the issue in itself did not bring down the government, it certainly emboldened Deakin, who was deeply concerned, to initiate moves to end Reid's tenure.
Symon, after whom the Canberra suburb of Symonston is named, never held office again.
Dr Norman Abjorensen, of the ANU Crawford School of Public Policy, is a political historian. His most recent book is The Manner of Their Going: Prime Ministerial Exits from Lyne to Abbott.