10 Minutes with…the Honourable George Brandis KC

Thank you for taking the time to speak to Hearsay.

My pleasure Richard; good to see you again.

You and I were fellow students in the TC Beirne Law School at the University of Queensland in the mid to late seventies. You now teach at the Australian National University. How has undergraduate academic legal study changed in the interim, for better or worse?

There are two big differences. First, with the rise of online study, which was of course greatly accelerated by the pandemic, there is less face-to-face contact with students. Many simply attend classes online. Which is a shame, because one of the most important features of university education is not just the interaction between teachers and students, but among students themselves. This is greatly inhibited – if not eliminated – by the online format. In most of my classes, between a third and a half of students attend online.

The second difference, specifically about legal education – which predates online learning – is the reduction in the number of core legal subjects and the rise of what might be called “contextual” subjects, along the lines of “Law and Contemporary Problems” and so on. While there is a role for contextual subjects, it should never be forgotten that the law is a discipline in its own right, comprising a vast body of technical, specialist knowledge. I disapprove of the movement in legal education away from the teaching of principles and doctrine in favour of what is, basically, social commentary. Of course, at the ANU, there is a very strong emphasis on public law and international law, as befits its role as the principal university of the nation’s capital. I am involved in teaching courses in national security law at both the National Security College and the College of Law.

You continued your tertiary studies at Oxford University. Does that remain, in your view, a valuable academic adjunct for law graduates prior to embarking upon legal practice, and why?

Absolutely. It is always an advantage to do a postgraduate degree, preferably at a university other than the one at which you did your first degree, and so be exposed to different teachers and different courses.

In my case, I did the BCL at Oxford, which prides itself on being the hardest postgraduate coursework law degree in the English speaking-world. Of course, I have no way of knowing whether that is actually the case, but it was certainly a lot more demanding – and therefore more intellectually stimulating – than the UQ LLB of the 1970s!

There has been a long tradition of Australians taking the BCL. Among our contemporaries, Richard, there were Peter Applegarth and Shane Doyle. A few years before me, Pat Keane did a BCL and was dux of the course, winning the coveted Vinerian Prize. A generation earlier, Cedric Hampson also did the BCL. I am aware there have been quite a few other members of the Queensland bar since.

Oddly enough, all of the people I mentioned went to the same Oxford College – Magdalen – which has always had very strong law teachers. In earlier times, they included Sir Rupert Cross, who taught evidence, JHC Morris, who taught conflict of laws, and Gunter Treitel, who taught restitution. However by my time, Cross was dead, Morris had gone to take up a Chair at Cambridge, and Treitel was at All Souls. I was, however, lucky enough to be taught evidence by Colin Tapper, restitution by Jack Beatson and Jurisprudence by Ronald Dworkin and Joseph Raz.

Aussie BCL students at Magdalen are a bit of an Oxford cliché: when I was AG, the Attorney-General, the Solicitor-General and three of the seven High Court judges all did their postgraduate legal study at Magdalen.

You were in active practice at the Queensland bar from 1985 to 2000. What were your “likes and dislikes” apropos of legal practice?

I loved practising as a barrister, both the court work and the opinion work. I would say – like a lot of barristers – the thing I liked least was practice management, which I wasn’t very good at.

You had a particular forte in the sphere of trade practice law. Did you fall into that legal space, or did you seek it out?

I fell into it – as so often happens as your practice develops. I hadn’t even taken the trade practices elective for my LLB, although I did take an elective on law and economics for my BCL. One day the Trade Practices Commission (as the ACCC then was) sent me a brief to do an examination under s. 155 of the old Trade Practices Act. They kept briefing me, and as I became known in that area, I increasingly got briefed to act in respondent matters against the TPC as well. By the late 1990s, competition law work was more than half my practice.

Politics then drew you into parliament. What – if anything – did you miss about bar practice?

I missed the intellectual rigour. So much of politics is conducted in an evasive way; so much in half-truths designed to grab a headline and avoid being trapped by a difficult question. There is no doubt that successful politicians are skilled at the art of oversimplifying and overstating. I tried to avoid that: I found it very intellectually unsatisfying. Sometimes, my attempts didn’t end so well. I remember once when we tried (and failed) to reform s. 18C of the Racial Discrimination Act, Philip Coorey (who, by the way, is in my opinion about the best political journalist in Canberra – honest, thorough and balanced), said something along the lines “the problem with Senator Brandis is that he thinks he’s still in an Oxford seminar room talking about John Stuart Mill.” I have to admit, there was an element of truth in that. Yet often, it’s the very people who rather pompously demand a more sophisticated level of public debate who jump down your throat if you try to rise above clichés.

Despite being immersed in politics, you retained your membership of the Bar Association and a practising certificate. Was that of some importance to you, or just a fallback position?

It was – and still is – immensely important to me. I have always – and did throughout my time in Parliament – thought of myself as a lawyer first and a politician second. From the time I became a senator, it was pretty obvious to me that the area on which I should concentrate was the law. And if I was ultimately to achieve Cabinet office, the role of Attorney-General would be a good fit. Naturally, the Attorney has to be someone who has credibility as a lawyer, and I thought it important to continue to maintain my practising certificate. As well, of course, as the consideration that political careers don’t go on forever – mine was relatively long, at 18 years; 22 if you count the years as High Commissioner, which is a quasi-political role – and I would eventually come back to being a practitioner.

Many lawyers have served in the federal parliament. Does legal education, and experience in legal practice, assist – or distract – one in engagement in parliamentary duties?

Basically, it is an advantage. I think there are three main reasons for that. First, obviously, as a legislator, and then as a minister with the responsibility to administer Acts of Parliament, it’s an asset not only to know the law, but how to read legislation. On some occasions, where the legislation was particularly important – like the foreign interference laws, which we did in 2017 – I actually personally took a role in the drafting, although always under the watchful eye of the Parliamentary draftsman! Secondly, being a barrister naturally accustoms you to thinking on your feet. Thirdly – and this is in my opinion the most important of all – long practice as a lawyer trains you to analyse a complex body of material – facts and law – and do so relatively quickly. That analytical skill is particularly important for a minister, who is constantly on the receiving end of departmental briefs and has to make decisions constantly, often under huge pressure of time.

But it can also be a problem. I think one of my shortcomings as a politician is that I never really stopped thinking like a lawyer. Certainly some of my long-suffering staff would agree with that! I referred before to s.18C. You might remember that at the time we tried to reform it that I got into all sorts of trouble for saying in the Senate “people do have the right to be bigots”. Actually, I’d been asked a question by a Labor Senator which wrongly asserted – or at least implied – that the government was trying to legislate for the right to be a bigot. The point I was trying to make to her was that, under the existing law of Australia, that right already existed. With some exceptions, that’s the default position: people are entitled to hold and express whatever opinions they want to – even outrageous ones. When I talked about the “right”, obviously I was talking about legal rights, since that’s what I’d been asked about. But I momentarily forgot the basic political rule: never say anything that can be taken out of context. So it was a lawyer’s answer, but not a politically smart answer.

What of its role in informing your later diplomatic service as High Commissioner?

Somewhat less so, because you’re not dealing with acts of parliament, and you’re not in a parliamentary chamber, having to think on your feet. I found being a diplomat was more about private persuasion, and the explanation of your government’s position, on a range of issues. However, on what was probably my biggest project in the UK – getting the Free Trade Agreement – it was certainly an advantage to have a background as a commercial lawyer.

In 2017 you delivered a keynote speech to the International Bar Association. You said:

“The professional obligations of lawyers involves more than providing clients with advice or representing them. It goes beyond that, to upholding and defending the principles of the legal system itself. This may mean standing up to the powerful or defending the vulnerable, the marginalised or the despised…..But let me also sound a note of caution: in defending the rule of law, it is important lawyers do not fall prey to believing they have a unique wisdom when it comes to public affairs…..Those who exercise executive power must always accept they are subject to, and must always be respectful of, the supremacy of the law. And in that process, as the custodians of the rule of law, the role of lawyers is essential.”

How ought a barrister in practice – in a practical sense – go about adhering to the adjuration of obligation you expressed there?

If barristers go into public life, they really should hold themselves to the same ethical standards as they would as a practitioner. And if you have the great honour to be the First Law Officer, upholding the rule of law is your very first obligation.

How ought a lawyer recognise and allow for their limitations in defending the rule of law?

Some colleagues – often very senior colleagues – become impatient with what they see as impediments being put in the way of what they may want to do. But of course, core to your responsibility as Attorney-General is to provide the Cabinet with good legal advice. Usually that will be based upon advice you yourself have received from the Attorney-General’s Department or the Solicitor-General. But not always. In matters of great political sensitivity that isn’t the case. For instance, in the double dissolution of 2016, the advice to the Governor-General was prepared in my office. But wearing the double hats of being a politician, who of course wants to advance your own party’s interests, and the first law officer, whose primary obligation is to the rule of law, can be very hard.

I would sometimes draw a comparison between the A-G’s role and that of the Finance Minister. They are the two members of Cabinet whose job is to say “No”: in the Attorney’s case, because a particular proposal would be unconstitutional, and in the Finance Minister’s case, because it would be unaffordable. You have to judge each on a case-by-case basis, and it’s by no means easy.

With the raft of domestic and global issues at play, and the advent of artificial intelligence, has the law become an unduly complex beast, to the point that the rule of law is at risk?

From a regulatory and law enforcement standpoint, the law will be as complex as it needs to be and, as you say, in an increasingly complex world, that means it will be ever more complex. In my time as A-G, when I was also responsible for domestic national security, we introduced seven substantial tranches of counter-terrorism and counter-foreign interference laws, and in the years since I left, there have been further significant changes.

But it is a mistake to think that all of our challenges are resolvable by having the right law. For instance, the challenges posed by China’s intention to be the regional hegemon, to displace American – and Australian – influence in the western Pacific; its belligerent intentions towards Taiwan; its flagrant violation of public international law in the South China Sea – these problems aren’t going to be solved by law. They’re going to be solved – if they are solved – by strategic policy: by politics and diplomacy.

I recall belatedly graduating in my master’s degree in law about seven years ago on the same night as your son Simon was graduating in his undergraduate law degree. What is he doing now?

Simon is a lawyer at Minter Ellison in Sydney, and I expect he will end up going to the Bar there. It’s really a bit bizarre: he’s doing almost exactly the same job as I did, when the firm was Morris Fletcher & Cross, 40 years ago.

Did you ever attempt to talk him out of studying law?

No. Nor did I try to talk him into it. But Simon – from the days when he was quite a young child – was just so obviously going to be a lawyer.

You have maintained many friendships among practising lawyers – barristers and solicitors – despite long service interstate and overseas. Has that sustained you to some degree?

Yes indeed it has. One of the benefits of being Commonwealth Attorney and Shadow Attorney before that – which two roles I did for 10 years all told – is that you get to know a lot of the senior lawyers and judges interstate, and often become friendly with them. That was my experience – more so in Melbourne than Sydney, I must say. And when I was in the UK, I also mixed, more than would normally be the case for the High Commissioner, with the bar and bench, particularly after Lincoln’s Inn was kind enough to make me an Honorary Bencher.

What are your interests now, beyond politics and diplomacy?

Reading, always reading. And music. I’ve always been interested in opera and ballet, but as I get older, that interest is becoming more obsessional.

Are you now enjoying some greater level of privacy and anonymity than was your lot as a politician and then diplomat?

Absolutely. The very worst thing, for me, about being a politician, was the loss of anonymity. I didn’t – unlike a lot of my former colleagues – go into Parliament to be a celebrity. I went into Parliament because I believed very strongly in certain fundamental liberal values, and I wanted to have a role in prosecuting them, which I hope I did. And also simply because I liked politics; I found it fascinating and I wanted to be a player. But I still regarded it as a vocation, a job of work. For instance, Annabel Crabb used to always be at me to come onto her show – Kitchen Cabinet – and I always said no. Because, I thought once you let the public into your home, you can’t protect your privacy any more. Doing interviews and panel shows is different – I think I’ve been on Q&A more than 20 times over the years – because that’s part of the job: a platform to advocate your policies and values.

Diplomacy is quite different, because it’s not largely a public role. When I got to London, I found it so refreshing to be able to walk down the street and not be recognised by anyone.

Can we expect to see you appearing in court at any stage in the future?

You never know.

You still live in Queensland. Where do you see the state on the legal and economic maps of 20 years hence?

From an economic point of view, obviously, of increasing importance. The demographic shifts in Australia are mainly in a northerly direction. South East Queensland is the fastest-growing part of the country by far, and that will only accelerate. The Australian economy is mainly a commodities- and services-based economy, which reflects Queensland’s strengths: in mining, agriculture, tourism and, increasingly, education too. And as the urban population grows, we will also see an increasing convergence between Brisbane and the Gold Coast. Although Brisbane is now about half the size of Sydney or Melbourne, It won’t be long before we see southeast Queensland – the conurbation of Brisbane, Logan, the Gold Coast, Redlands and Ipswich – as one of the three main population hubs of the nation, roughly the size of the two big southern capitals.

On the legal map, I hope we have another High Court judge! When Susan Kiefel retired, it was the first time since the early seventies that nobody from the Queensland Bar was on the Court.

Many thanks for your time, and candour, speaking to Hearsay.

My pleasure, Richard. It’s good to be home.