A Regrettable Want Of Candour

Poor George.

All his life he has aspired to gravitas but has never advanced beyond turgid, pompous and, in this case, petulant.

You would think that after a 7-0 thrashing in the High Court a responsible Attorney-General would bow graciously to the collective and unanimous wisdom of the highest court in the land, say a few grateful words about our judicial system and the importance of due process and the rule of law, and withdraw.

Not our George.

The High Court had the temerity to disagree with George Brandis, and George can’t let anyone, even seven unanimous High Court Justices, have the last word.

In fact, George and his current Solicitor-General lost nine-nil, because as well as the entire High Court disagreeing with George, so did the Amicus and George’s highly-regarded ex-Solicitor-General, who resigned because George made it impossible for him to continue.

Even though he’s the Attorney-General, and even after losing 9-0, he had to say this.

In making these graceless and misleading remarks George yet again exposed himself for what he really is: a politician with a law degree, rather than an Attorney-General who accepts, understands and discharges the responsibilities of being the head and defender of our legal system.

George’s “critique” of the High Court’s s44 citizenship decisions is not a critique at all, it’s a tantrum and a cheap misrepresentation of the court’s arguments by a poor loser.

The decision of the Court runs to 44 pages. Of these, 23 pages are devoted to a detailed, logical and reasoned discussion of every argument put forward by every legal representative in the case, together with the unanimous decision of the Justices and their arguments and reasons for reaching that decision. This of course includes the arguments advanced by George and the current Solicitor-General, and the reasons and arguments why they were not accepted.

In his “critique”, George doesn’t even bother to respond to any of the Court’s arguments, to rebut any of their thinking, or to explain himself at all. Rather, he falls back on every politician’s stand-by when reason and logic don’t support your position: he resorts to over-simplification, misrepresentation and innuendo. Remember, this isn’t a political opponent he’s slagging off, it’s his own Justices and the highest court in the land, but George doesn’t care, because they disagreed with him and he lost.

Here is one of George’s “critiques”:

“We were asking the high court to look at the section in view of its purpose and history, the high court instead took the view that the section should be read with a very strict, almost brutal literalism,”

That’s an interesting summary of 23 pages of closely-reasoned legal argument, as well as a disingenuous misrepresentation of what you were doing, George.  Let’s take it a step at a time:

“We were asking…”. Well, no, George, in fact you weren’t “asking”, you were arguing. You were advancing a legal argument against the ordinary and obvious meaning of s44 of the Constitution, which says you can’t hold dual citizenship and be a member of Federal Parliament. To use the word “asking” rather than “arguing” already misrepresents the situation, and suggests that the Court has somehow rejected a reasonable request rather than the Court, the Amicus, and the previous Solicitor-General all offering counter-arguments to every single one of yours; arguments that every single High Court Justice found compelling. You didn’t ask; you argued, and you lost.

“…look at the section in view of its purpose and history…”. Again, George attempts to portray himself as the reasonable petitioner. Again, he misrepresents the situation: he’s trying to pretend that there exists a new interpretation – his – that captures the “purpose” of the Constitution, and that, by inference, previous interpretations do not. Moreover he’s implying that this is a new “view” of the Constitution that the Court previously ignored or didn’t consider. To imply that a unanimous decision of the High Court has unfortunately overlooked the purpose of our Constitution takes a special kind of arrogance, but George has it.

“…instead took the view…”. George seems to be suggesting that in every legal argument there are simply multiple, equally valid alternative “views”, and the Court just “takes” one, by no particular process, rather than by careful and detailed legal argument by the best Justices in the land. The Court didn’t “take a view”, George, the Court not only examined your argument (not “view”), it dissected it, found counter-arguments, demonstrated its ultimate weakness and fatal flaws, rejected it, and documented its arguments and reasons for you to read. They didn’t “take a view”, George, you argued with them, and you lost. All seven Justices rejected your argument, George, and found it dangerous, inconsistent and “unstable”, and so did your former Solicitor-General. They said of your “view”:

But ultimately the variation in the Attorney-General’s approach depends upon the unstable distinction between overt voluntary acts and conscious omissions. The application of the natural and ordinary meaning of s 44(i) serves to avoid the difficulties which attend this unstable distinction. (Paragraph 57)

They didn’t “take a view”, George. They considered your argument, and those of more than seven others and they then performed their highly skilled legal duty, and in offering this petty misrepresentation you’re failing your most basic legal duty to defend the courts and the Constitution. The High Court doesn’t write opinion pieces about the Attorney-General or his decisions in the media, George, and the High Court doesn’t attack the judicial system of which it’s supposed to be the peak.

“… strict, almost brutal literalism…”. It’s almost as though you haven’t read the 23 pages of legal argument, George, because the Court’s description of your argument is that it departs from the “ordinary and natural meaning of the language”, and introduces “uncertainty and instability”. If you had called their interpretation “ordinary and natural” it really wouldn’t have had the same pejorative impact as “strict, almost brutal”, would it, George?

They say of their ruling:

“It adheres most closely to the ordinary and natural meaning of the language of s 44(i). It also accords with the views of a majority of the Justices in Sykes v Cleary, the authority of which was accepted by all parties. A consideration of the drafting history of s 44(i) does not warrant a different conclusion. Further, that approach avoids the uncertainty and instability that attend the competing approaches.” (Paragraph 19)

and also, speaking of George’s argument:

“This consideration weighs against an interpretation of s 44(i) which would alter the effect of the ordinary and natural meaning of its text by introducing the need for an investigation into the state of mind of a candidate.” (Paragraph 48)

Seven Justices say “ordinary and natural”, George says “strict, almost brutal”, and implies that the Court has overlooked the purpose of the Constitution. We’re not using emotional language instead of putting forward a reasoned argument are we George?

George continues his “critique” and goes on to sum up the entire 44 pages of legal argument as:

“all the high court has said in its decision … is the view that they’ve had of the constitution for 25 years is still their view”

You couldn’t ask for a more deliberate, trivialising mis-representation than that.

“all that the high court has said…”. What a masterly dismissal of 23 pages of argument from the highest court in the land, followed by 21 further pages discussing each individual case.

Well, no, George. Overall they considered and discussed the arguments of seven separate litigants as well as yours and those of the Amicus. And that wasn’t all they said, George. They discussed the history of the legislation, not because they thought it was relevant, but because you and others advanced it as an argument and so they considered your argument and showed it to be flawed and irrelevant. And that wasn’t all they said, George. They reviewed the only previous decision by the Court on this Section, and discussed (with reasons) why they agreed with the majority view, discussed (with reasons) why they disagreed with the minority view, and they put forward an argument that partly disagreed with all of the previous interpretation (Paragraphs 21-23). And that still wasn’t all they said, George.

That disagreement did not change their ultimate ruling, but it did change the analysis of the Section for any further cases. And that wasn’t all they said, George. They provided a detailed analysis of seven, new, separate applications of s44, that’s a huge increase in the specific application and judgements on this section, all demonstrating the operation of the Section and how it is applied in seven different specific cases. That’s “…all that the high court has said…”, George. That’s all. Forty four pages of closely reasoned argument. That’s all. All you’ve said is to disparage their decision without a single piece of evidence or argument, because you lost. That’s all you’ve said, George.

“…the view that they’ve had… for 25 years is still their view.”.

So, George, the narrative you’re trying to sell here is that you’ve “asked” the High Court to take a “new view” of s44, a “view” that, for the first time, takes into account the “purpose” of this Section, and instead of “accepting” your request, they have taken an “almost brutal, literal” approach that hasn’t changed in 25 years. Your deliberate over-simplification makes their decision no more nuanced than “same same”, and hidebound reactionaries that they are, they still hold to a 25 year old position while the rest of the world has moved on.

Nice try, George.

These aren’t the same Justices that produced the decision of 25 years ago, are they? So it’s not really the same decision, is it, even ignoring the fact that it’s seven decisions? And it’s not a “view”, is it George, it’s a legal decision by the highest court in the country.

The Constitution on which they’re ruling is over 100 years old, and this bit hasn’t moved on in over 100 years, has it? So 25 years is actually not long at all given the law itself hasn’t been changed in over 100 years.

The law hasn’t changed, the concepts of citizenship it applies to haven’t changed, but for your own particular political purposes, George, you would like the meaning of the words changed this time to take on a new meaning that’s not actually there at all on the page. This isn’t a 25 year old position, it’s a detailed re-examination and restatement of a more than 100 year old “position” carefully worded by the framers of the Constitution, together with a 23 page legal analysis for simpler minds, like yours, George, to read before coming up with some twisted interpretation to suit your immediate political needs, as well as 21 pages of specific application of this section to seven separate cases, leading to five disqualifications and two dismissals.

Here we have seven judgements, most on differing situations that haven’t arisen before and leading to both possible outcomes depending on the case, a 44 page analysis with close legal argument and reasoning, and George waves it away  as “the same view”. It’s just breathtaking in its deliberate misrepresentation.

But that’s our George…

Poor George.

A postscript. Hidden in the depths of the Court’s decision (at Paragraph 58, to be exact) is this gem of judicial understatement that by itself made the whole thing worth reading:

The practical problems involved in applying the standard for which Mr Joyce MP and Senator Nash argue would include the difficulties of proving or disproving a person’s state of mind. Not the least of these difficulties would be the regrettable possibility of a want of candour on the part of a candidate or sitting member whose interests are vitally engaged. (Paragraph 58)

Oh my. “The regrettable possibility of a want of candour”. I can’t think of a nicer way to say “the bastard will lie”. What a wonderful phrase.

Let’s just summarise George’s little display of pique, then, as “a regrettable want of candour”.