What sort of A-G would George Brandis make?

Greg Barns | The Drum | 29 August 2011

George Brandis would no doubt like to be attorney-general, the first law officer of Australia, in the next Coalition government.

Senator Brandis is a barrister and a senior counsel, although the latter appointment was the subject of harsh criticism given it was awarded to him six years after he gave up active practice at the Queensland Bar.

But Senator Brandis's conduct in the Craig Thomson affair provides cause for concern about what sort of attorney-general he would be if the opportunity arose. Senator Brandis has pursed the ALP backbencher Thomson with a vigour that is disturbing on a number of levels.

Firstly, there are the telephone calls to ministers and police commissioners. Senator Brandis called New South Wales Attorney-General Greg Smith, a fellow Liberal, in early August. Smith says that Brandis was alerting him to a forthcoming media story which would reveal Brandis had asked the New South Wales DPP to look at the Thomson matter.

Then a couple of weeks later Brandis was on the phone again, this time to speak with New South Wales Police Minister Michael Gallacher to again alert him to the fact that Brandis would be sending a brief to the Police Commissioner Andrew Scipione. Gallacher himself alerted Scipione to look out for the Brandis brief.

Then there was Brandis's call to Australian Federal Police Commissioner Tony Negus last week. Brandis apparently wanted to clarify whether the AFP would be investigating the matter.

Even if we accept that Brandis did no more than inform his New South Wales colleagues of what he was up to, it was unwise of him to call them given the political stakes in the Thomson affair. Brandis did not need to call Smith and Gallacher, and in doing so he showed that he lacks judgment because he has allowed his political opponents to accuse him of lobbying to have the Thomson matter investigated.

What Brandis should have done was behave like any other citizen who believes a crime might have been committed, and that is to contact police, hand over any evidence or make a statement, and then leave it for the police to go about their business.

In addition to being busy on the blower Brandis shot off a pompous opinion to the New South Wales Police Commissioner Scipione in which he said variously:

The overwhelming weight of evidence... suggests that Thomson himself received, signed for and authorised [sic] payment for the services.

I submit there is a strong prima facie case that he has committed one or more offences against the Crimes Act.

I draw your attention, in particular, to the offence of larceny; fraudulent appropriation; larceny by a clerk or servant; and fraud.

As legal academic Alex Steel said on this site last Friday, Brandis's understanding of the law was not what one would expect of someone who aspires to be attorney-general. "If Senator Brandis was a law student his letter would be a clear fail," Steel wrote.

The other aspect of Brandis's opinion about Thomson is that it is written without him having all the facts before him. Normally when a lawyer provides an opinion on a matter they would firstly seek to have as full an understanding of the facts as possible and they would be cautious in the way they expressed their opinion if they did not. Using terms like "a strong prima facie case" and "the overwhelming weight of evidence" are not terms that a trained lawyer should use when there has not yet been a police investigation.

According to media reports a fortnight ago Brandis was telling his colleagues to be circumspect in their comments about Craig Thomson because the Coalition would not want to prejudice a criminal trial if there were one. That was good advice but the letter Brandis sent to the New South Wales Police Commissioner undermined that call with its strong imputations of guilt.

Perhaps Brandis might now resist the temptation to issue any more letters or opinions, and keep away from the telephone. He might like also to remind his colleagues that the presumption of innocence is the bedrock of our legal system and that he and all his colleagues might like to tape their mouths so that Mr Thomson's rights are upheld. If Brandis conducted himself in this fashion he would be showing himself to be a decent candidate for attorney-general, but so far in the Thomson affair Brandis has been much more politician than seasoned lawyer.