OPINION: The resignation of Justin Gleeson is unprecedented in the 100-year history of the federal solicitor-general. Never before has the nation seen such acrimony between the attorney-general and solicitor-general, Australia's first and second law offices respectively. Nor has the relationship become so poisonous that trust and confidence has evaporated. In these extraordinary circumstances, one of them had to resign.

The public stoush has damaged Attorney-General George Brandis and the office of solicitor-general. Labor no doubt will continue to call for Brandis' resignation on the basis that he, and not Gleeson, should have departed. It is likely though that the resignation will relieve the pressure, and enable Brandis to survive.

Solicitor-General's downfall: Labor blamed

The government is attempting to shift blame for the resignation of Justin Gleeson, saying the former Solicitor-General spoke to Labor without authorisation. Courtesy ABC News 24.

Brandis' longer-term future is less certain. The battle with his solicitor-general, along with his dysfunctional relationship with Australian Human Rights Commission president Gillian Triggs, presents a worrying pattern. It portrays a minister unable to work appropriately with independent officeholders within his portfolio. This is damaging for any minister, but especially for an attorney-general expected to be the defender of such offices.

Gleeson's resignation also creates an additional set of problems. Every government needs a strong and effective solicitor-general. The officeholder represents the Commonwealth in international tribunals and the High Court, and advises on the most contentious and difficult legal issues. Such advice is crucial for ensuring that policies and programs stay within the ambit of the law.

The consequences of breaching these limits can be severe. A salient example is the striking down of the Gillard government's plan to transfer asylum seekers to Malaysia. That High Court defeat caused enormous political damage to the government and frustrated its attempts to resolve the refugee issue.

To advise and represent the government, the solicitor-general cannot be partisan or conflicted. Independence is required to communicate difficult counsel to ministers about the limits of the law. The office demands credibility and integrity, and not a willingness to bow to ministers seeking a politically acceptable answer.

It says much that there have been only 10 federal solicitors-general since 1916. Officeholders have often served multiple governments and numerous prime ministers, emphasising the non-political nature of the role. Conversely, this history shows the willingness of successive governments to work with whichever talented lawyer is in the role. Governments have done so by respecting the independence and integrity of the position, whether or not the occupant was appointed by a government of a different political persuasion.

Brandis' actions have not always been consistent with the nature of this role. In particular, he unwisely issued a direction giving him a veto over the provision of legal advice by the solicitor-general. This undermined the independence of the office. As former solicitor-general Gavan Griffith has said, it was akin to the solicitor-general being a "dog on a lead". The Senate should overturn this unfortunate direction at the earliest opportunity.

Fixing this problem will not be enough to restore the office. Gleeson is a leading light of the legal profession, and a person of integrity and the highest legal ability. If he could not form an effective working relationship with the Attorney-General, it begs the question of how another person can do so? Such doubts are likely to lead many senior lawyers to balk at putting their name forward to be nation's next solicitor-general.

And why would Australia's very best lawyers accept appointment to an independent office that Brandis wishes to subject to a personal veto. All this points to a very real danger that Brandis will not attract the best person for the job. This could weaken the government's legal position and advocacy before the High Court.

It is hard to see how the Attorney-General can fix this. Revoking his legal direction would be a start. It would also be good to see him emphasise publicly the independence and importance of the office. In doing so, he must be prepared to acknowledge past mistakes so as to give the public and applicants to the office confidence that things will change.

One of those mistakes is Brandis' inaccurate representation of legal advice he received on a bill to strip citizenship from dual nationals. Grave doubts emerged about the validity of that law. Brandis responded with reassurance that the solicitor-general had advised that "there is a good prospect that a majority of the High Court would reject a constitutional challenge to the core aspects of the bill".Gleeson has since revealed that he did not advise on the bill then before Parliament, as Brandis had implied.

This is a serious charge given that Parliament accepted the Minister's words at face value, and proceeded to enact the law based upon his assurances. Even if Brandis does correct the record, people will be wary of accepting any further statement by him that he has legal advice supporting the validity of a law.

George Williams is Dean of Law at UNSW.

This opinion piece was first published in The Sydney Morning Herald.