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February 16th 2018 print

James Allan

Goodbye, Mr Brandis. Good Riddance

As attorney-generals go, this one didn't -- except to water on his initially stated intention to gut Section 18C. If that failure wasn't enough, look at his wan appointments to the High Court and, perhaps even more shameful, his refusal to put the Australian Human Rights Commission on a short leash

george brandisGeorge Brandis has recently given his valedictory speech before departing Parliament and will soon be off to the United Kingdom as Australia’s High Commissioner.  Having been first elected to the Senate way back in 2000, and so presumably entitled to one helluva super-duper Super pension pay-out courtesy of all of us deplorable taxpayers (remember, George Brandis QC was clearly hoping for Hillary not The Donald), let me give you my assessment of how he performed as Attorney-General.

The short answer is that Brandis was a truly awful A-G. I say that from the partisan perspective of a right-of-centre, small government, pro-democracy, strong proponent of free speech, a mindset which for ease of reference I’ll just call the ‘conservative’ vantage.  If you’re a soft left ‘progressive’ you’ll no doubt score Brandis differently.  Christopher Pyne may well think him the best A-G ever.  But from my conservative perspective George Brandis was the worst Coalition A-G in living memory.  And I mean that literally.  Of course for conservatives Brandis was better than most, not all but most, Labor A-Gs.  But that’s faint praise indeed, no?

Let me make the one-page case for Georgy Boy’s uselessness as A-G by noting four rather significant failings.

First off, he was the man that more than anyone else wrecked the Abbott government’s attempts to dismantle our s.18C “hate speech” laws.  Some of you may recall how, before the 2013 election, Brandis had the puffed-up gall to paint himself as a latter day John Stuart Mill liberal, the man who would fix this awful speech-inhibiting s.18C.  Instead, he seemed incapable of articulating even the most basic defence of a full blown commitment to free speech and why hate speech laws were self-defeating and (you know) not very liberal.  We now know that large chunks of the Abbott partyroom were wholly opposed to the gutting of s.18C; we know that threats to cross the floor were made to Tony Abbott, although that is no excuse for the then-PM’s pusillanimity. We don’t know if Brandis was incompetently useless or if he didn’t really have his heart in the free-speech game. We can say with perfect certainty, however, that George Brandis never resigned from Cabinet to the backbench on this point of principle.  Personally, I rather think that J.S. Mill would have.

Secondly, take a look at the Brandis appointments during his tenure as A-G.  To say they were in large part ghastly is putting it mildly.  Tim Wilson leaves the Australian Human Rights Commission (HRC) for a safe seat in Parliament and who does Brandis appoint in his place as the so-called Freedom Commissioner?  Ed Santow!  The man sat mute throughout the entire Bill Leak and QUT students fiascos.  In my view Santow is such a cultural lefty that I don’t think even Labor would have appointed him.  But Brandis did.  We can even see in retrospect that Wilson wasn’t much of a pick, able to talk the talk but not walk the walk.  And when the Libs transmogrified into ‘Team Turnbull’ and Gillian Triggs finished her time as President of the HRC did Georgy Boy replace her with a critic of the HRC or a free speech partisan or someone who might undermine this terrible body from within (as President Trump has done with all sorts of appointments, say Nikki Haley to the UN or Scott Pruitt and Andrew Wheeler to the Environmental Protection Agency)?  To ask is to know the answer.  Nope, he picked another insider, more competent and publicity adverse than Triggs (which isn’t saying much), but not anyone who would advance the conservative agenda, or that of J.S. Mill or Menzies.

Or take his picks to our top court.  I’ll here say what no barrister who makes his or her living appearing in court can say publicly (but which more than a few have quietly whispered in private): this is the weakest High Court in all my 14 years in this country and, indeed, for a good deal longer back than that.  We have a Brandis-picked Chief Justice who isn’t keen on dissents and who has entirely embraced the notion that unelected judges ought to be making proportionality-like determinations, as they do overseas – forgetting, it seems, that we don’t have a national bill of rights of any sort and that the illegitimacy of this sort of judicial over-reach is apparent to everyone not working for GetUp! or in an Australian law school (there being plenty of ideological overlap between the two).

Brandis also decided on a world-first. He opted to choose as the replacement for a retiring High Court justice – wait for it – the leaving man’s wife.  I still get Canadian and American law colleagues who literally can’t believe this.  And don’t think it was because this appointee was a strong federalist (Not!) or an interpretive originalist (Not!).  Think identity politics instead.  Frankly, one wonders if anyone was awake during the Abbott and Turnbull Cabinet meetings on High Court appointments.  Or does someone just say ‘Hey George I got a buddy who did well at Oxbridge, whaddya think?’

Compare this to how President Trump has made interpretive conservatism (aka fidelity to the written law) and dislike of judicial usurpation – not to mention a belief in strong federalism – a sine qua non of his judicial picks.  By comparison, Brandis has been a (is there a kind word?) joke.  Heck, in that valedictory speech of his he made the sophomoric error of equating the Rule of Law with the Rule by Judges, as though no politician could ever legitimately criticise unelected judges for judicial usurpation of power.  And he was so blind and delusional as to condemn conservatives for giving up on traditional institutions without grasping that the institutions of which he spoke have been overwhelmingly captured by the Left.

Thirdly, there is Brandis’s reactions to the Brexit vote and Trump’s election.  He, like Turnbull and Julie Bishop, was opposed to both outcomes. That tells you plenty about the man’s attachment (or lack thereof) to democratic decision-making. It’s telling, too, as regards his general political alignment.  Georgy Boy is more Soros/Davos Man than a Deplorable.  Give me the latter any day.

That leaves for last the Brandis involvement in the defenestration of Abbott. Skulking around with the Black-Handed Pyne, rather than going to the backbench and aiming for change openly, he was a closet coup leader. A clear effect of all that has been to sunder the Liberal Party (into a predominantly non-Black Hand party membership and, alas, a far too numerous Black Hand-supporting partyroom).  The full effects of that coup have yet to be seen but will become evident either next election or in the near aftermath of Turnbull’s thirtieth failed Newspoll.  Of course by then Georgy Boy will be swinging down the street in London so fancy-free.

In the light of all that, and taking no particular pleasure in saying so, Herr Brandis gets a ‘D’ from me.  For those of you who have been graduated from an Australian university in the last decade and have never encountered it, that’s a failing grade not a distinction.  So off you go to London, Georgy Boy, cocktail Liberal and Turnbull lefty extraordinaire. Shed those dowdy feathers and fly a little bit on all us taxpayers.

James Allan is Garrick Professor of Law at the University of Queensland

Comments [12]

  1. Macspee says:

    James, absolutely spot on. The High Court has been legislating as hard as it can for years. First we have the ability of the Feds to subvert the Constitution by allowing it to change the law by signing an international Convention or Treaty, then we have the discovery of a non-existent principle of common law known as terra nullius and the application of a sensible tribal custom of small islands to a vast continent where the idea of any kind of ownership makes no sense.
    I agree, as someone who has practised law for nigh on 50 years, that the High Court has been going down hill for ages. Murphy’s appointment was possibly the start of the rot and although McTiernan wasn’t much chop at least he did not pontificate.

    • pgang says:

      Is it Murphy who thinks that a group of high court judges is a perfect statistical sampling of the populace at large? I seem to recall him writing such in defence of judges doing whatever they want.

  2. Thanks James. George was more a fan of ministerial leather than of any actual principles involved in administering the law. He was happy with judicial activism because he had/has less regard for parliament than he did for lawyers. A real disappointment. I do however, have higher hopes/regards for his replacement. It was one of the very few things that Turnbull has got correct in his political career.

  3. Egil says:

    Fully agree with ‘D’ assessment of Mr Brandis.
    He will get along just fabulously with the establishment in London, though.
    An instant friendship will be found with London’s Lord Major, after GB’s teary display opposing/reacting to a certain ‘religious garment’
    being ‘disrespectfully’ worn/used by Pauline Hanson in The Senate.
    Rather telling about that episode is the fact that it is the only time The Greens have displayed any respect for PH,
    not knowing who the heck was wandering amongst them, but great respect for hideous garment.
    If, as suggested, PM Turnbull has made a good decision regarding George Brandis’ replacement
    then that can be explained two ways;
    Obviously unlikely to find a worse AG.
    A good decision, by law of averages, was due.

    • whitelaughter says:

      is there footage of the Greens being respectful before they realised what was going on? If so, definitely worth using for memes etc, so would appreciate a link.

  4. Egil says:

    ….Lord Mayor..?!

  5. Adellad says:

    The Toad’s half-choked words spat at Pauline Hanson when she did her burka stunt proved to me where he stands. The hatred and apparent passion he displayed in favour of Islam and its mores was simply amazing – the kind of emotion a rational Australian would reserve FOR Islamic practices, not in defence of them.

  6. en passant says:

    Another poliie-waffle rewarded for his failures by 30th Lord Tumbril of Newspoll. These people have no self-awareness. They need to be examined by a clinical psychiatrist (Professor Jordan Peterson comes to mind), but as that will not happen they will all just keep going in the belief that they are exceptional people, an elite that the little folk cannot understand.

    Ask me again (if you must) why I moved overseas …

  7. Jody says:

    Thank you Professor Allan. Absolutely nails the issues with this caponesque, morally ambivalent, strutting UN wannabee.

  8. oldsailor says:

    “As attorney-generals go” ….attorneys-general, surely.

  9. Druemac says:

    History will not be kind to this toad of a man