Solicitor-General Stephen Donaghue

Thanks to a couple of calamities, one unforeseen, one completely self-inflicted, the government has been keeping Solicitor-General Stephen Donaghue unusually busy with High Court work, firstly to sort out the citizenship questions hanging over the heads of Deputy Prime Minister Barnaby Joyce and senators Matt Canavan and Fiona Nash, and secondly fending off a challenge to the constitutional validity of the postal plebiscite on marriage equality.

In both cases, the public has been assured his advice is that the government is on rock-solid ground — of course, we have to take Malcolm Turnbull and co at their word, as none of that advice has been publicly released. But the Prime Minister was bellicose and unequivocal in Parliament, saying the government’s legal advice was that the High Court would definitely find Joyce was eligible to sit in Parliament. Meanwhile, on the subject of the postal survey, Attorney-General George Brandis told Leigh Sales on 7.30 back in early August: “As to the legality of it, we have acted on Solicitor-General advice, in which we are confident.” 

But the SG’s view hasn’t been unquestioningly accepted by everyone — specifically, academics with an interest in the constitution have raised some concerns. Here’s head of law at the University of New South Wales George Williams at the National Press Club, talking about the plebiscite:

“The government’s argument is that expenditure on the postal survey is authorised because it is “urgent” and “unforeseen”. Given the long-running debate on same-sex marriage, it is far from obvious that it fits into these categories. How could this expenditure be said to be unforeseen at the relevant date of 5 May 2017 when the government had a longstanding policy of holding a plebiscite on same-sex marriage? And what about this survey is urgent, except for the fact that it is necessary because of the government’s own political imperatives?

“… Overall, I would be surprised to see the government emerge with a victory. If nothing else, it would seem unlikely that the court will permit the government to use this backdoor means of avoiding explicit parliamentary authorisation of its expenditure.”

And here’s constitutional academic Anne Twomey on Barnaby’s chances of survival:

“On the track record of the High Court on section 44(i) of the Constitution, they have tended to read it quite strictly — in which case Barnaby is in strife …

She believed there was always a chance that the court could find some exception, “but on the whole, let’s just say I don’t have the same level of confidence as the Prime Minister in Barnaby surviving a High Court challenge”

Of course, we’re not saying Donaghue is just a yes man telling the government what it wants to hear. But we do remember what happened last time a Solicitor-General didn’t give the advice the government wanted — he was cut out of the loop, endured a very public spat with Brandis and eventually resigned, calling their relationship “broken”.