SENATE

COMMONWEALTH OF AUSTRALIA 

Proof Committee Hansard 

SENATE 

LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES 

COMMITTEE 

Distribution of proceeds of the liquidation of the Bell Group of companies and 

related litigation 

(Public) 

FRIDAY, 17 FEBRUARY 2017 

CANBERRA 

CONDITIONS OF DISTRIBUTION 

This is an uncorrected proof of evidence taken before the committee. 

It is made available under the condition that it is recognised as such. 

BY AUTHORITY OF THE SENATE 

[PROOF COPY]

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SENATE 

LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE 

Friday, 17 February 2017 

Members in attendance: Senators Back, Dodson, Fawcett, Hinch, Ludlam, Ian Macdonald, Pratt, Watt. 

Terms of Reference for the Inquiry: 

To inquire into and report on: 

1. The nature and scope of any agreement reached by the Commonwealth and Western Australian governments in relation 

to the distribution of proceeds of the liquidation of, and litigation concerning, the Bell Group of companies (the proceeds), 

with particular reference to: 

a. the priority order for distribution of the proceeds; 

b. the Commonwealth’s position in relation to the distribution of, and litigation concerning, the proceeds; 

c. any connection between the above and the settlement of other disputes between the Commonwealth and Western 

Australian governments, including regarding the distribution of GST revenue between the states; 

d. any direction or instruction given by the Attorney-General to the Solicitor-General, either directly or through his office 

or department, in relation to the conduct of litigation concerning the proceeds; 

e. any connection between the above and the issuing of the Legal Services Amendment (Solicitor-General Opinions) 

Direction; and 

f. any other related matter. 

2. That the Senate directs the Attorney-General (Senator Brandis) and the Minister for Finance (Senator Cormann) to 

appear before the committee to answer questions.

WITNESSES 

ANDERSON, Mr Iain, Deputy Secretary, Civil Justice and Corporate Group, Attorney-General's 

Department........................................................................................................................................................... 1 

FAULKNER, Mr James, General Counsel (Constitutional), Attorney-General's Department ....................... 1 

KINGSTON, Mr Michael, Australian Government Solicitor, Attorney-General's Department ..................... 1 

LOUGHTON, Mr Gavin, Senior Executive Lawyer, Australian Government Solicitor, 

Attorney-General's Department ......................................................................................................................... 1

Friday, 17 February 2017 Senate Page 1 

ANDERSON, Mr Iain, Deputy Secretary, Civil Justice and Corporate Group, Attorney-General's 

Department 

FAULKNER, Mr James, General Counsel (Constitutional), Attorney-General's Department 

KINGSTON, Mr Michael, Australian Government Solicitor, Attorney-General's Department 

LOUGHTON, Mr Gavin, Senior Executive Lawyer, Australian Government Solicitor, Attorney-General's 

Department 

Committee met at 8:01 

CHAIR (Senator Pratt): I declare open this public hearing of the Senate Legal and Constitutional Affairs 

References Committee inquiry into the nature and scope of any agreement reached by the Commonwealth and 

Western Australian governments in relation to the distribution of proceeds of the liquidation of, and litigation 

concerning, the Bell Group of companies. These are public proceedings being broadcast live via the web. The 

committee has resolved to allow media to be present at this hearing. I remind members of the media not to film 

any computer screen or documents of witnesses, the secretariat or the committee. If any witness has an objection 

to being filmed, please let us know. 

I welcome officers of the Attorney-General's Department. Information on parliamentary privilege and the 

protection of witnesses and evidence has been provided to you. 

I remind witnesses that the Senate has resolved that an officer of a department of the Commonwealth or of a 

state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer 

questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking 

for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual 

questions about how and when policies were adopted. 

It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, 

and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading 

evidence to the committee. The committee prefers evidence to be given in public, but, under the Senate's 

resolutions, witnesses have the right to request to be heard in camera. It is important that witnesses give the 

committee notice if they intend to ask to give evidence in camera. The committee may also determine that 

proceedings take place in camera. 

If a witness objects to answering a question, the witness should state the ground upon which the objection is 

taken, and the committee will determine whether it will insist on an answer, having regard to the ground which is 

claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in 

camera. The committee has agreed that answers to questions taken on notice at today's hearing should be returned 

by Friday, 3 March. 

With those formalities over, I would like to welcome you all here this morning. Do any of you have an opening 

statement? 

Mr Anderson: I do have an opening statement. Thank you for the opportunity to make that. 

CHAIR: Do you have a spare copy that you can distribute to the secretariat? Or just email— 

Mr Anderson: I believe we do. 

CHAIR: Thank you. 

Mr Anderson: I appear today with Mr Michael Kingston, who commenced in his role as the Australian 

Government Solicitor on 5 December 2016. Mr Gavin Loughton and Mr James Faulkner also appear in response 

to the invitation from the committee. As the committee is aware, Mr Loughton was the AGS Senior Executive 

Lawyer with primary carriage of the constitutional litigation in the High Court concerning the Bell Group. Mr 

Faulkner was the primary legal advisor in the Attorney-General's Department with responsibility for instructing 

the Australian Government Solicitor, as solicitor on the record, on behalf of the Attorney-General. The secretary 

of the department has noted in his letter to the committee of 14 February that, to the extent Mr Loughton and Mr 

Faulkner are asked questions about that work, they would need to refer such questions to the Attorney-General to 

consider whether claims of public interest immunity should be made. 

Since 1 July 2015, the AGS has been consolidated into the Attorney-General's Department. The secretary of 

the department, Mr Moraitis, made an opening statement when he appeared before the committee on 7 December 

2016, in which he outlined some of the general arrangements for dealing with constitutional litigation, but I think 

it is helpful to repeat those. The secretary referred, in his statement, to the fact that section 78A of the Judiciary 

LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE

Page 2 Senate Friday, 17 February 2017 

Act allows the Attorney-General to intervene on behalf of the Commonwealth in any proceedings in any court 

that raises any issue involving the Commonwealth Constitution. Section 78B of the act requires that the Attorney- 

General, and state and territory counterparts, be given notice of any such proceedings. Under general 

arrangements approved by successive Commonwealth attorneys-general, section 78B notices are handled, in the 

first instance, by the AGS in consultation with the Solicitor-General and the Office of Constitutional Law. In 

practice, any 78B notice received by the Attorney-General's office is sent to the department, which in turn 

allocates the notice to AGS to deal with. Hundreds of section 78B notices are received each year. These 

arrangements also provide that in significant cases the Office of Constitutional Law puts a submission on the 

question of intervention to the Attorney-General based on AGS advice and consultation with any agency having a 

non-constitutional policy interest. 

Mr Moraitis has also outlined a number of issues arising from the committee's invitations to the department to 

appear which I would like to draw to the committee's attention as they remain relevant to the assistance that we 

may be able to provide today. Paragraph 4.8.1 of the guidelines for official witnesses states: 

Legal advisers owe a duty to their clients not to disclose the existence or content of any advice. It would therefore be 

inappropriate for any official who has provided legal advice to government, who has obtained advice from an external lawyer 

or who possesses legal advice provided to another agency, to disclose that advice. 

Paragraph 4.8.2 states: 

Where an official has been asked a question about the content of legal advice, it may be appropriate to advise the committee 

that such information might properly be subject to a public interest immunity claim and refer the question of disclosure to the 

responsible minister. 

AGS's work in relation to the Bell Group litigation is limited to providing legal advice and acting as lawyers for 

the Attorney-General and for the Commissioner of Taxation. The guidelines for official witnesses make it clear 

that it would not be appropriate for AGS to disclose any advice without the informed prior approval of its clients 

so as not to compromise any public interest immunity claims that those clients may wish to make. Accordingly, 

before AGS could respond to such requests for information, it would seek the opportunity to consult with its 

clients about the specific request, and that may require consultation with both the Attorney-General and the 

Commissioner of Taxation and include officials in the department as well as the ATO. In these circumstances, to 

the extent that the committee seeks information about AGS's work for its clients, it is important that that 

information be sought directly from the clients themselves and not from AGS, because it is the client, not the 

lawyer, AGS, which has a particular privilege interest which may give rise to public interest immunity claims. 

More broadly, the concern for client confidentiality, which is recognised in the guidelines, reflects an 

underlying concern for the integrity of the lawyer-client relationship. The trust and confidence which clients place 

in their lawyers is essential to the maintenance of the lawyer-client relationship, and AGS is concerned not to take 

any steps which may be seen by its clients, both in this inquiry and more broadly, to be inconsistent with that 

relationship. Similar considerations also apply in relation to Mr Faulkner. 

There is one other matter that I would like to raise. A number of questions were taken on notice at the hearing 

on 7 December. I believe answers to those were provided to the committee last night, and I am not sure whether 

those have been published by the committee. 

CHAIR: We have those answers now before us. I think we have all had access to them this morning. 

Mr Anderson: If I can go one step further and ask whether they have been published or not and whether they 

are still confidential to the committee or whether we can answer questions about them, should the committee ask 

questions? 

CHAIR: We would like to ask you questions about them, so I guess we need to work out whether to resolve to 

make them public now. You have no objection to those being made public? 

Mr Anderson: We have no objection. 

CHAIR: We will move to make those public now. 

Senator LUDLAM: So moved. 

CHAIR: Mr Anderson, I want to step through some parts of your opening statement with you briefly. You 

will note in my own opening statement I made the comment that an officer of a department of the Commonwealth 

or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to 

refer questions asked of the officer to superior officers or to a minister. That resolution prohibits only questions 

asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or 

factual questions about how and when they were adopted. I just want to make sure that you are all clear about that 

part of your obligations before this committee today. 



Mr Anderson: I can speak on behalf of my colleagues and I believe that we are all clear on that. I think it is 

important to foreshadow that much has happened since the hearing of 7 December. There will be questions, we 

expect, which we will simply need to refer to the Attorney-General or potentially to the Commissioner of 

Taxation and which we will not be able to answer today. 

CHAIR: Yes, but some of those questions might refer to particular dates when referrals of different matters 

between your offices were made. This committee is quite entitled to ask those questions. 

Mr Anderson: At the hearing of 7 December, those sorts of questions were, I believe, answered. But, again, 

there were other types of questions which went to the content of advice. 

CHAIR: We will now turn to the issue of the content, and legal professional privilege has never been 

accepted as grounds for not answering questions before the Senate or in fact any parliamentary forum. So legal 

professional privilege is not a ground in and of itself. In stepping through those questions today, you have an 

obligation in making such a claim to specify the harm that would be caused to the public interest. You must be 

able to give a substantive reference to what the harm would be in order to make such a claim. That claim does not 

relate to the fact that it is a legal matter. It has to refer back to the harm that would be caused, because legal 

professional privilege is not something that is accepted by this committee. Is that understood? 

Mr Anderson: That is understood. 

Senator WATT: Thanks, everyone, for coming. I think we will still have plenty of questions that are entirely 

able to be answered, despite everything that has been said. Mr Anderson, you and I have met a number of times 

now at these hearings. Thank you for your continued cooperation. I am not sure that I am going to have a lot of 

questions for you personally. I think we have covered that ground pretty extensively. Mr Kingston, I appreciate 

you are fairly recently in the role, so I am not going to make you talk about things that you were not involved in. 

But I particularly appreciate Mr Faulkner and Mr Loughton coming along because obviously you have been very 

involved in these matters as well. Just so I am clear on roles, Mr Loughton, your primary role was as instructing 

solicitor in what became known as the Bell litigation, the ATO intervention and the Commonwealth intervention. 

Is that right? 

Mr Loughton: That is right. I am a litigator with the Constitutional Litigation Unit of AGS and I was the 

solicitor having carriage of litigation in the High Court. 

Senator WATT: Yes, whereas Mr Faulkner, your primary role is within the department, but you obviously 

work very closely together in any constitutional litigation of this nature? 

Mr Faulkner: Yes. 

Senator WATT: This is probably a question for both of you. When did either of you first become involved in 

the consideration of how the Commonwealth might deal with the proposed Western Australian legislation? 

Mr Loughton: On my part, I first received instructions in relation to the litigation in early December 2016. 

Senator WATT: 2015? 

Mr Loughton: Yes. 

Senator WATT: So you first received instructions in December 2015. Was that the very first contact you had 

had with either the ATO or the Attorney-General's Department? 

Mr Loughton: No. I became aware of the prospect of this litigation perhaps a month or two earlier. 

Senator WATT: So probably October or November 2015? 


Senator WATT: But prior to, let's say, October at the earliest you really had not had any knowledge or 

dealings with any agency about the Western Australian legislation? 

Mr Loughton: No. I was a blank slate on the matter. 

Senator WATT: I bet you pine for those days. 

Mr Loughton: Indeed. 

Senator WATT: When you say that you first became aware of the 'possibility of litigation', I think you said— 


Senator WATT: in October or November, who made you aware of that? 

Mr Loughton: There was other litigation going on in the Western Australian Supreme Court in relation to the 

Bell matter. That litigation itself gives rise to constitutional issues. AGS Perth contacted me in relation to a 



completely separate constitutional issue arising in relation to that Western Australian litigation in about October 

or November. 

Senator WATT: So AGS Perth contacted you, and that arose out of the other litigation that they were 

involved in? 


Senator WATT: Did you have any contact with the Attorney-General's Department in Canberra at that point, 

in that October-November period? 

Mr Loughton: No. 

Senator WATT: When you first received instructions in December 2015, which agency did they come from? 

Mr Loughton: They were instructions on behalf of the Attorney-General's Department. 

Senator WATT: Mr Faulkner, when did you first become involved in this matter? 

Mr Faulkner: I think the time line would be very similar to the one that Mr Loughton just mentioned. The 

consideration of the possibility of a High Court proceeding really arose, or crystallised, I suppose, as a result of 

the direction things were taking in the Supreme Court litigation in Western Australia. 

Senator WATT: So that would have been around October or November 2015? 

Mr Faulkner: Yes. Of course, my role within the department, which is the head of the Office of 

Constitutional Law, means that we are essentially conscious of things, generally speaking, that may be of interest 

to the Commonwealth, constitutionally speaking. In a sense, I suppose the theoretical possibility of litigation is 

always there at the back of one's mind. One is conscious of the bill in the Western Australian parliament, of 

course. So it is a little bit artificial for me to draw hard and fast lines, but in terms of discussion about this 

particular proceeding, yes, the dates that Mr Loughton has given would seem pretty good for me too. 

Senator WATT: I think the Bell legislation was introduced into the Western Australian parliament on 6 May 

2015. 

Mr Faulkner: That sounds right, yes. 

Senator WATT: You said that in the course of your role you become aware of possible constitutional matters 

and that kind of thing. Do you think it is likely that you might have at least heard about this legislation and that it 

might have constitutional implications as early as May 2015, potentially even earlier, in the run-up to that 

legislation being introduced? 

Mr Faulkner: I believe it emerged in evidence that has already been given that the department was consulted 

early in 2015 by Treasury about a proposal to deal with the Bell Group liquidation processes. At that point, it was 

raised with us in terms of possible corporations scheme issues. That is why it came to us. It was my office that 

dealt with that approach. That clearly gives rise to the possibility of constitutional issues in that sense. At that 

time, the point was that the questions appeared to be matters arising out of the administration of the corporations 

agreement, the scheme itself. The administration of that scheme is a matter for Treasury. We obviously have an 

interest in all federal arrangements and federal legislative schemes, including the corporations arrangement. So if 

one were being strict in the sense that I suspect you have in mind I would have to concede that I had thought 

about constitutional aspects of it as early as that time. But that may not be quite the sense that you are— 

Senator WATT: Yes, I am not suggesting that at that point you were actively considering a constitutional 

challenge. It is more that there is a period of time that evolves as people think about these things before you reach 

that point. So you think it is possible that you became aware of the constitutional issues raised by that Western 

Australian legislation, if not the potential need for intervention, as early as about April or May 2015? 

Mr Faulkner: No. Certainly there were constitutional aspects to this in the sense that I have just described, 

but I do not think it would be fair to say that I considered litigation at anything like that stage. 

Senator WATT: Sorry to harp on about this, but the time line on this is quite important. I absolutely 

understand the distinction between thinking in an abstract sense about constitutional issues and actively 

considering litigation, which comes later. Just sticking with the more abstract thinking about, 'That is an 

interesting bill; that might have some constitutional implications,' you think that could well have happened around 

the time of the introduction of that bill in the Western Australian parliament? 

Mr Faulkner: I hesitate because my office is aware of advice given by AGS to other agencies on what is 

constitutional, so I am aware of constitutional consideration having been given to this issue at a number of points. 

I am looking to be as accurate as I can and not to be misleading in any sense. Whether that was May, June or July 

I would not be in a position to say offhand. 



Senator WATT: But it was certainly before that October-November 2015 period when things became a bit 

more serious? 

Mr Faulkner: Yes. My office was aware that there were constitutional issues. 

Senator WATT: Mr Loughton, this might be best directed to you given it involves the Australian 

Government Solicitor. We have undertaken a number of FOI requests which I have to say have not yielded a lot 

of documents. We have established, though, that on 1 April 2015 the Western Australian State Solicitor wrote to 

the Australian Government Solicitor about this matter for the first time. Are you aware of that— 

Mr Loughton: That was April 2015? 

Senator WATT: Yes. 

Mr Loughton: No. As I said, my first involvement in the matter arose when litigation was imminent. That 

was later that year. 

Senator WATT: Mr Faulkner, do you know anything about that correspondence? 

Mr Faulkner: No. 

Senator WATT: Perhaps it went to the Perth office of the Australian Government Solicitor. We are not aware 

of the contents of that letter, so I do not know what it said. I do not know whether it flagged this possible 

legislation or what. But it does appear that that was the first time the Western Australian State Solicitor raised this 

issue with the Commonwealth legislative agencies and litigation agencies. 

I have also seen the date 7 July 2015 for when the Australian Government Solicitor wrote to the Western 

Australians State Solicitor. Again, I do not think we have the contents of that correspondence. Do either of you 

have any knowledge of that correspondence? 

Mr Loughton: No. 

Mr Faulkner: No, I would not really expect to have knowledge of the day-to-day communications between 

even Mr Loughton's area and CLU, which is clearly very constitutional. No, I am not aware of that. 

Senator WATT: I appreciate you will probably need to take this on notice, but could I request copies of both 

of those items of correspondence? Mr Loughton, I think you said that you first became aware of the possibility of 

a constitutional challenge in October-November 2015 and that you first received instructions in December 2015. 

Is that correct? 


Senator WATT: And you received those instructions from the Attorney-General's Department? 


Senator WATT: Was there a particular officer? 

Mr Loughton: From Mr Faulkner. 

Senator WATT: And Mr Faulkner, you began dealing with Mr Loughton or his officers about the possibility 

of litigation around October-November 2015? 

Mr Faulkner: No, I do not believe so. I hesitate simply because this is quite a while ago and we deal with an 

awful lot of constitutional litigation, and the individuals are common to many of those matters. I could not say 

with any confidence precisely who I talked to and when in those terms but, broadly, I would say that this 

particular proceeding commenced, as you know, in very late November. I think it was 26 or 27 November that the 

proceeding was instituted and 78B notices were, I believe, issued on 1 December. Generally speaking, though 

there are sometimes exceptions, the 78B notice is the trigger for issuing instructions in relation to the possibility 

of the Attorney's intervention under 78A of the Judiciary Act. My recollection is that my instructions probably 

would have been given around 1 December in relation to this matter. 

Senator WATT: So you gave instructions to Mr Loughton around 1 December— 

Mr Faulkner: That would be right. 

Senator WATT: around the time of the notice of constitutional matter being filed. 

Mr Faulkner: That is right. I recall we got together to talk about it—as we usually do where it looks to be an 

interesting matter, fairly shortly after the 78B notice arrives. 

Senator WATT: When you say 'we' got together, do you remember who was part of that meeting? 

Mr Faulkner: No, I could not say that just offhand. 

Senator WATT: Could you take that on notice, please? 




Senator WATT: And if there were any meeting notes taken, could I please request a copy of those? 

Mr Faulkner: I can take that on notice. 

Senator WATT: I am aware that, as this litigation progressed, there were certain issues on which the 

Australian tax office could intervene and there were other issues on which the Attorney-General, on behalf of the 

Commonwealth, could intervene. In you providing instructions to Mr Loughton, as opposed to the ATO providing 

instructions, was that because there was the possibility of the Commonwealth, as opposed to the ATO, 

intervening? 

Mr Faulkner: The issuing of the 78B notice means that the question of whether the Attorney-General wishes 

to intervene in the matter arises, and that question needs to be considered, so instructions provided to AGS to 

begin consideration of those issues. That is the question of the Attorney-General's intervention in the matter that 

raises the constitutional issues. That says nothing about any other party, including the Commissioner of Taxation. 

It is not uncommon for other emanations of the Commonwealth to have an interest in a proceeding which is also 

constitutional, so one could overstate the significance of there being another interested Commonwealth party in 

any particular proceeding of this sort. Certainly, my instructions to AGS were not contingent on any other agency 

having an interest in the matter. 

Senator WATT: Did you personally have a view at that point, when you provided instructions, as to whether 

the Commonwealth should intervene? 

Mr Faulkner: I could not express an opinion on an opinion. 

Senator WATT: Around that time, you have mentioned there was a meeting involving some people prior to 

providing those instructions. Is that correct? 

Mr Faulkner: No. I am not looking to be difficult here but, I believe that all I think I have said—all I intended 

to say, perhaps—is that my recollection is that the 78B notice was received around 1 December. I would expect 

that those of us generally with an interest in such things—Mr Loughton's area, and myself, at the very least— 

would have discussed that matter fairly shortly thereafter, possibly immediately. That is possible. So that is the 

kind of meeting that I had in mind. Issuing of instructions was, I imagine, around that time as well. 

Senator WATT: Did you have any contact with anyone in the Attorney-General's office at around that point? 


Senator WATT: Okay—and not with the Attorney-General himself either? 


Senator WATT: Okay. Is it normal at this fairly early stage of litigation for matters to be conducted by 

departmental officials as opposed to involving a minister's office? 

Mr Faulkner: Yes, but perhaps I could elaborate a little bit on the general process. I will not take up too much 

time and I apologise if I am repeating some things that have been said previously; that is entirely possible. The 

process for dealing with 79B notices—that is the notice that is given of a constitutional matter wherever one 

arises in any court—is the subject of a standing authorisation which has taken the same form over a couple of 

decades now. I can say this with some confidence because I have been there for a couple of decades and I have 

been responsible for the way these things work. 

Broadly, an Attorney-General will authorise initial consideration of all 78B notices which come in by my own 

office in the Attorney-General's Department, the Australian Government Solicitor and the Solicitor-General's 

office. Where the matter is not significant—we consider it not to be significant—we are authorised to indicate to 

the parties that there will be no intervention. However, wherever it is a significant matter, we prepare advice for 

the Attorney-General and it is considered in due course. So it is not at all uncommon for that process of preparing 

the advice for the Attorney-General to take quite a while. There can be all kinds of considerations like, for 

example, whether we expect the states to intervene, what their submissions might be, who might be in the case 

and able to put the arguments that we are interested in effectively or whether there is any utility in us being there 

to say particular things. It is quite a complex process and it takes quite some time. It is virtually never the case 

that that preliminary work would be raised specifically with the office or the Attorney-General. Does that help at 

all? 

Senator WATT: That is helpful. I am aware that in one of our previous hearings—I am not sure which 

witness it was—we had been told that the Australian tax office first sought advice from the Australian 

Government Solicitor around this matter, presumably relating to the Western Australian legislation, on 7 May 

2015. Mr Loughton, are you aware of that request for advice? 



Mr Loughton: I became aware of it after the fact. 

Senator WATT: Roughly when? 

Mr Loughton: As I said, at the time I began work on the litigation proper. Also, as Mr Faulkner was 

answering, I had the opportunity to consult my notes and I can add a little bit more precision. The 78B notice was 

received by AGS, as it turns out, on 3 December. The Bell litigation had started a few days before that. We knew 

about it. I think the whole world knew about it. So, as is sometimes the case, we took the opportunity in 

anticipation of the 78B notice to seek instructions to start preliminary work on the case. 

Mr Faulkner: Which, I might add, is not at all unusual. I consider myself authorised to give instructions in 

those cases, and it is often done, the point being to give ourselves as much time as possible to get on top of things. 

As you would be aware, I am sure, the time lines can seem extraordinarily long to the outside world sometimes, 

but, if you know the cases, they are ridiculously compressed, and one does one's best. 

Senator WATT: Without going into what was in the request for advice from the ATO, do you know which 

officer within the AGS dealt with that request? 

Mr Loughton: I believe that has been addressed earlier. 

Mr Faulkner: If I may be so bold as to interrupt, it does seem to me—I hesitate to raise this—that there is a 

question whether questions about advice sought and obtained by, in this case, the ATO really should be addressed 

to the ATO. I am conscious often of being in the rather invidious position of a legal adviser and provider of 

advice as well as someone who instructs, but nevertheless, as a provider of advice, certainly the thrust of the 

guidelines for official witnesses when it comes to the provision of advice quite particularly is that questions about 

advice really ought to be directed to the agencies which sought the advice. There is some difficulty in 

approaching the legal adviser him- or herself. As you would be aware, AGS is the provider of all constitutional 

advice to all agencies across the Commonwealth, and I think it is generally accepted that it is not appropriate to 

approach AGS about all the advice it is giving across the Commonwealth. One might say I am blowing this out of 

proportion in suggesting that this is the same kind of situation, but it is certainly an example of that sort of thing. 

So I just feel it is appropriate to raise that. I apologise. 

Senator WATT: I am being very careful not to request a copy of the advice. All I am asking, given Mr 

Loughton is a representative of the AGS, is which officer dealt with that request. I am not interested in getting a 

copy—I mean, I'd love to get a copy of the advice, but I won't! 

CHAIR: In line with my opening statement, we do understand that, in specifying the harm that might come 

from such a disclosure, often it is the party seeking the advice who is best able to put forward the evidence of the 

nature of any such harm. I understand in that context. Because legal professional privilege is not a ground in and 

of itself, it comes back down to the nature of the harm that would be caused from that disclosure, and the only 

party that could be harmed is therefore the party seeking that advice. 

Mr Anderson: To add to that: my recollection is that the evidence was actually given by Mr Mills from the 

ATO about the advice that the ATO had sought— 

CHAIR: That is right. 

Mr Anderson: and, with respect, I think the ATO is in the best position to say what harm, if any, there might 

be from disclosing information. 

Senator WATT: So you think there might be some harm in us finding out which officer in the AGS took over 

a request for advice? 

Mr Anderson: My point is that the ATO, as the client seeking that advice, is in the position that we are not: to 

actually be able to say whether there is any harm. 

CHAIR: The technical process as in— 

Senator BACK: Officers of the ATO are not here, are they? 

CHAIR: No. We have heard from them before. 

Senator BACK: And you cannot answer on their behalf. 

CHAIR: But we can ask questions of process, people, dates and times, which clearly must have been 

through— 

Senator BACK: Presumably, ATO officers would be best positioned to answer those questions. These 

gentlemen may not be in a position to answer those questions. 

CHAIR: Senator Back, I think you were seeking the call next. 



Senator BACK: I am. I will in fact just make that observation and thank you for your earlier comments. As 

we all know, it is longstanding practice of governments of both persuasions to decline to disclose legal advice, 

and I appreciate your efforts, Senator Watt, in that. 

Gentlemen, by way of background, my recollection, supported by my good colleague, was that the Bell Group 

was a heavy transport trucking company. Do any of you have any idea why the Western Australian government, 

representing the taxpayers of Western Australia, would be involved in any litigation relating to a trucking 

company? 

Mr Faulkner: Speaking for myself, I certainly do not feel competent to answer. Perhaps the only answer I 

could give in that regard is that the litigation that we have been dealing with in the High Court, of course, is all 

about arrangements for liquidation of certain companies whatever the area in which they trade might have been. 

Senator BACK: Perhaps I can assist for those who might be listening. Bell was a very long established and 

very successful heavy transport trucking company in Western Australia and was purchased by the then corporate 

raider Mr Robert Holmes a Court simply because it was a business that had a very high cash flow, which of 

course was attractive to Mr Holmes a Court. In 1987, Holmes a Court got himself in the stock market crash into 

very severe financial difficulty and turned to his friend, the then Premier Burke, to bail him out. The end result of 

that was that the Bond group—Mr Alan Bond and his group—purchased 19.9 per cent of Bell and, lo and behold, 

the other party to purchase 19.9 per cent was none other than the state government Insurance Commission of 

Western Australia. So Mr Burke has used the finances of the Western Australian taxpayer to bail out his mate 

Holmes a Court and, of course, then Bond goes to the wall, Bell goes into liquidation and we find ourselves in the 

very sad circumstance of today. So it is important, if I may, to put into context the background to all this because 

under no circumstances at any time in a well-run or honest government would we ever have had the people of 

Western Australia being co-owners of a heavy transport trucking company. 

Can I take you to the correspondence of Dr Nahan? Are you familiar with that letter? I understand it was 

received on 15 April 2015. It is a letter from state Treasurer Nahan to federal Treasurer Hockey. Is that a letter 

with which you are familiar? 

Mr Faulkner: We have seen that letter. 

Senator BACK: My first question is—and perhaps you might be able to take it on notice for me—Nahan 

spells out to Hockey the circumstances relating to the interests between the Western Australian government and 

possibly the federal government. He makes the point: 

The Bell Group litigation is infamous for its length and cost. 

Of course, this led to the WA Inc. royal commission. The scene was so rotten that by the time the Hon. Carmen 

Lawrence became Premier, acting particularly with the heavy pressure of her brother Bevan Lawrence, she was 

minded to call for a royal commission into what became known as WA Inc. Right at the centre of WA Inc. was 

the Bell situation. Nahan makes the comment that: 

The Insurance Commission of Western Australia ('ICWA') 

—here it is again— 

has spent about $200 million funding the liquidator of the Bell Group in his successful action against the 20 Australian and 

foreign banks… 

You may not know, but I wonder if you could take on notice, and if you could advise the committee, how much 

of anything did the Commonwealth of Australia contribute to those costs of litigation? I know how much Western 

Australians did because the government of Mr Richard Court imposed a $50 levy on every vehicle licence for 

many years to pay for the Western Australian taxpayers' contribution. But I am keen to know, did the 

Commonwealth contribute anything and, if so, how much did the Commonwealth contribute? If you could take 

that on notice, I would be appreciative. 

Mr Anderson: If I could just note: it is highly unlikely that information would be information held by the 

department, including by AGS. 

Senator BACK: Is it? Perhaps I can find others. 

Mr Anderson: If we can take it on notice we are committing to give you an answer. I am just saying I do not 

think we will be able to answer that question ourselves. 

Senator BACK: All right, thank you. Nahan goes on to say that the liquidator, as result of that successful 

litigation for which the Western Australian taxpayers paid, has approximately $1.7 billion available to it. 

Incidentally, Nahan makes the point, not in this correspondence but in other correspondence, that the actions 



proposed to be taken by the Western Australian parliament had the unanimous support of both the Labor 

opposition and the Greens political parties, so this was totally bipartisan. Nahan says to Hockey 

Accordingly, the Western Australian government is planning to introduce legislation that will…deliver a more rapid financial 

return to the Commonwealth, the State Government and the other creditors… 

He goes on to say that 'We'll ensure there is no "misdistribution" and that it will eliminate further speculation by 

professional litigation funders'—because we know what they are all about. He, then, obviously seeks to advise 

Hockey as to what actions to be taken. Then, Hockey, in his response on 29 April 2015, makes statements: 

I acknowledge the desire of the Western Australian Government to see an efficient and timely conclusion to the Bell Group 

insolvency process. It is important that the ensuing process result in … fair outcomes for creditors consistence with their legal 

positions… I that understand the proposed legislation will require any future determination in reaction to creditor distribution 

to have due disregard to the agreements… 

He said: 

I trust the Western Australian government will therefore continue to engage in good faith in the forthcoming mediation 

process. 

In his final paragraph, he says: 

Given the significant nature of the proposed course of action, I urge the Western Australia Government to ensure that the 

utmost probity is evidenced throughout the process so as to ensure that Australia remains and continues to be seen as an 

attractive destination … 

Based on your roles in the whole process, is there any indication at all that any action or statement by then 

Treasurer Hockey is inconsistent with what would be normal practice of a senior cabinet member communicating 

back to a state colleague in the context of what I have just read out to you? 

Mr Faulkner: This may somewhat unhelpful, and I apologise for that, but I would have to say that, speaking 

for the department, our interest is solely with the Constitution or the technical constitutional propositions which 

emerged in relation to this proceeding. We have no knowledge of and no interest in, in a sense, the surrounding 

matters—although they are, no doubt, in some senses interesting—that you are referring to, so I do not think we 

have anything to offer at all on that front, I am afraid. We were concerned with the technical constitutional 

arguments in relation to this legislation, and that is it really. 

Senator BACK: Good. So I will now move, if I may, to the 78B notice. Am I to understand clearly, in 

response to the answers given to my good colleague Senator Watt, that the department's instructions to AGS were 

motivated around the issue of the 78B notice? Is that correct? 

Mr Faulkner: That is right. The point of the exercise is that the possibility of an Attorney-General's 

involvement in a particular proceeding rests solely on the fact that a constitutional issue arises. We then consider 

is that issue important in constitutional terms. It may be fantastically important in all kinds of other policy terms 

and utterly trivial in constitutional terms, in which case we would not intervene. It is a funny kind of highly 

technical proposition, which is not well understood, I must confess, but our interest is only, 'Does this case raise 

an interesting or an important constitutional point?' There may be associated questions about how Commonwealth 

legislation operates where a court might find it useful to hear from the Commonwealth, so I would not want to 

suggest that there can be no other issue than the constitutional issue in play, but they are legal questions of a fairly 

high order in technical terms. Our job in looking at 78B notices is to develop a device for the Attorney-General 

that allows the Attorney-General to decide whether this is a sufficiently significant matter in which to intervene— 

to take the step of intervening not being a party, as it were, before that step. 

Senator BACK: I understand from my reading and from what I have learnt that the Australian tax office, for 

whom you cannot speak, raised its challenge in the High Court based on, as I understand it—excuse the 

simplicity; I am not a lawyer—revenue related matters. Is that an accurate portrayal? 

Mr Faulkner: Broadly; I would not quibble with that myself. Perhaps to put that another way, the 

constitutional issues raised by the 78B—there are in fact three proceedings that formed the Bell proceedings, and 

they began consecutively. The three constitutional issues that were raised across those three proceedings, which 

were the proceedings in relation to which the Attorney ultimately intervened—there were three constitutional 

issues raised. The first constitutional issue was: was the WA liquidation law inconsistent with Commonwealth tax 

law? The constitutional question was: if it was, it would be invalid by operation of section 109 of the 

Constitution. That was the first constitutional issue. The second constitutional issue was: was there a problem in 

terms of the WA liquidation law created under the Commonwealth Corporations Law, because that law was also 

relevant to the capacity of the states to make new laws in relation to things broadly connected with corporations. 

That was the second constitutional issue. The third constitutional issue was: was there something about the state 



law which offended the part of the Commonwealth Constitution that deals with judicial power? Was there a 

problem in the state law seeking to change the arrangements of people currently involved in current litigation? 

Those were the three issues that arose. 

The evidence that was given by the tax office was that broadly—very broadly, once again I think this is safe to 

say—their particular interest was in what they regarded as the revenue side of revenue issue, and that issue was: 

was the WA law inconsistent with the Commonwealth tax law—that being the revenue connection. They have 

said, 'That was the thing that was of interest to us', and that was the matter for which the Commissioner of 

Taxation filed submissions and sought leave to intervene. Does that get to the point? 

Senator BACK: Yes, it does; thank you. I can comprehend that, and thank you for that very useful 

explanation. I wanted to go to any role that the Attorney-General may have had in that process, but I think I have 

learnt that he had no role. 

Mr Faulkner: I am happy to come back to that matter. That might be the wrong inference to draw, but I am 

happy to explain that shortly, perhaps. 

Senator BACK: Okay. I will defer to others and then, if time permits, Madam Chair, I will come back to my 

line of questions. 

Senator HINCH: Mr Anderson, I want to go back to your responses to questions on notice from 7 December. 

To do that, I want to go to the Attorney-General's, Senator Brandis's, comments to the Senate on 28 November, 

when he said: 

After I indicated that I did not intend to intervene in the proceedings on behalf of the Commonwealth, I was contacted by 

the Solicitor-General, Mr Gleeson. He gave me certain advice. 

Which obviously was not passed on. He said: 

I do not, by what I am about to say, waive the Commonwealth's privilege in that advice. It is sufficient to say that Mr Gleeson 

was strongly of the view that the Commonwealth should intervene … 

Cutting to the chase here, he said: 

… I saw the force of what Mr Gleeson put to me and I accepted his advice. 

Then after that, on 30 March according to the senator, he said he instructed the Commonwealth to give notice of 

intervention in the proceedings. This makes that March meeting very important. That is the one you went to in 

March? 

Mr Anderson: I was at that meeting; that is right. 

Senator HINCH: At that meeting, was that where the Attorney-General told the Solicitor-General to run dead 

or not proceed to the High Court? 

Mr Anderson: There was no discussion in those terms. 

Senator HINCH: 'In those terms'? 

Mr Anderson: I am not aware of any discussion along those terms. 

Senator HINCH: So there was not a discussion along the lines of the Attorney-General saying to the 

Solicitor-General, 'I don't want you to do this', and the Solicitor-General saying, 'Well I don't work for you; I work 

for the ATO.' He was representing the tax office, wasn't he? 

Mr Anderson: He was representing the ATO, who had already intervened from 8 March. But, no, there was 

no discussion in those terms. My recollection from the discussion, and it is getting further in the past of course, is 

that there was a discussion around the fact that the Solicitor-General had put some views to the Attorney— 

Senator HINCH: Very strongly. 

Mr Anderson: and the Attorney simply noted he would put those views. I think he repeated those views, and 

there was a brief discussion around the case and the reasons for intervention. I think the Attorney said words to 

the effect of he would look into it further. 

Senator HINCH: So the Attorney-General did not tell the Solicitor-General, 'You work for me'? 

Mr Anderson: No. I do not recall any discussion or any words along those lines at all. 

Senator HINCH: And you probably cannot answer this, but it would appear to me that this was the crux of 

the antipathy between the Attorney-General and the Solicitor-General, which led eventually to the Solicitor- 

General's resignation. 

Mr Anderson: I cannot make that connection. I am not aware of that being a connection. That matter was put 

to the Attorney—I am trying to think whether it was in this inquiry or in another inquiry—and I think the 



Attorney denied that there was any connection between the direction made on 4 May, in terms of briefing the 

Solicitor-General to obtain advice, and this matter. I should note, as I did when we gave evidence on 7 December, 

that there is also a distinction between the direction which was given, which was the process for seeking advice 

from the Solicitor-General, and what is happening here, which is the ATO seeking to appear in litigation for 

which they do not need the Attorney's approval. 

Senator BACK: Don't need. 

Mr Anderson: Don't need. So there is a substantive difference between the ATO having the Solicitor-General 

appear for them in litigation and someone needing to get the Attorney-General's approval to obtain advice from 

the Solicitor-General. 

Senator HINCH: Was the discussion perhaps not so much a conflict of interest but a clash, because you have 

got the Attorney-General at one stage saying he does not want the Commonwealth to get involved and Solicitor- 

General saying, 'Well, I represent the ATO and I am putting a different hat on here and it does not involve you'? 

Mr Anderson: No, no conflict at all. The ATO has intervened from, I think, 8 March, represented by the 

Solicitor-General; so a Commonwealth party was already involved in the litigation. The question was whether the 

Commonwealth itself should intervene in addition to the ATO; so, no conflict there. Indeed, what happened at the 

actual hearing was that the Commonwealth, from recollection, adopted the ATO's submissions and then added 

some further submissions on some of the other constitutional points. 

Mr Faulkner: That was the only point I was going to come back to the senator on: the Attorney ultimately 

adopted the commissioner's submissions and so the Solicitor-General put argument in precisely the terms the 

commissioner filed them; so that is to finish that loop. 

Senator HINCH: On 30 March you had, on the Attorney-General's instructions, the Commonwealth giving 

notice of intervention, and that was followed by the blow-up between the Western Australian government and the 

federal government, because they thought that they had a deal with Treasurer Joe Hockey. There is a whole list of 

phone calls and meetings. 

Mr Anderson: The Attorney gave evidence, I think, of a strong view to exchange the meeting in perhaps 

April. 

Senator HINCH: Okay. 

Senator BACK: Can I get a clarification so that I am clear: is it your evidence that the Attorney did not give 

any instructions to the Solicitor-General on behalf of the Australian tax office? Is that how I understand what you 

are telling us? The Attorney did not give any instructions to the Solicitor-General on behalf of the ATO? Is that 

correct? 

Mr Anderson: That is correct, as far as I am aware. 

Senator WATT: Going back to the issue about some of the earlier contact. Again, this comes from the 

previous evidence we received. I think on 4 June 2015 the Attorney-General's office sought a brief from the 

Assistant Treasurer about the Bell matters. I think we obtained that advice from either the ATO or the Treasury at 

a previous hearing. That request for a brief was made in response to a letter that an Adelaide barrister, Mr Mark 

Liversey, had written to the Attorney-General. So, on 22 May 2015, Mr Liversey, an Adelaide barrister, wrote to 

the Attorney-General expressing concerns about the Bell legislation. We know this because we were advised of 

this in answer to a question on notice. I have a copy of that letter here, if that is of any use. Again, this is in 

response to a question on notice that on 4 June 2015 the Attorney-General's office sought a briefing from the 

Assistant Treasurer on the Bell matters in order to respond to that letter from Mr Liversey. Mr Faulkner and Mr 

Loughton, does either of you know anything about that? 

Mr Faulkner: I hesitate at this point, because I believe a question regarding the possibility of a briefing being 

provided to the Attorney-General's office has been taken on notice. I believe—and I may be wrong about this; I 

am happy to stand corrected—that that is still being considered by the Attorney-General, so I do not feel that I am 

in a position to answer that question at this stage. 

Senator WATT: What would be the public interest immunity ground for not advising whether the Attorney- 

General's office sought a brief? 

Mr Faulkner: It is really more that I understand that question is being considered at the moment. 

Senator WATT: We actually know. We have already had an answer to a question on notice, which has 

advised the committee that the Attorney-General's office did make a request to the Assistant Treasurer for a 

briefing on 4 June 2015. 

Mr Faulkner: I am terribly sorry—and you have an answer from the Attorney-General to that effect, do you? 



Senator WATT: I do not have before me who actually responded to that question on notice, but— 

Mr Faulkner: I believe the ATO has given evidence about that, and I believe further questions were asked as 

to the Attorney's office's view on that; I may be wrong. 

CHAIR: Can I just pause for a moment. We have not had a chance to check whether or not all of our 

questions on notice that went through the department were answered. Are you in a position to advise us, Mr 

Anderson? 

Mr Anderson: Certainly. Of course there was the appearance on 7 December before this inquiry, and those 

questions have all been answered. But then there was an estimates recall day before the legal and constitutional 

affairs committee on 12 December, and there were some additional questions taken on notice by the Attorney 

there—he said he needed to consider those—and that is what Mr Faulkner is alluding to. 

CHAIR: Thank you for that clarification. 

Senator WATT: I have actually confirmed that this question on notice was to the ATO, and they have 

advised the committee that that request was made on 4 June— 

Mr Faulkner: I hasten to add: I am not suggesting that that is necessarily wrong; I simply feel somewhat 

constrained in what I can say. 

Senator WATT: Sure. My question to you is simply whether you were aware of that request having been 

made by the Attorney-General's office. 

Mr Faulkner: I am afraid I do not think I can answer. I am not in a position to say what the Attorney- 

General's office did or did not do. I consider that to be a question that the Attorney-General's office will need to 

answer. 

Senator WATT: As to that brief, we have been advised, in an answer to a question on notice from the ATO: 

on 9 June they provided that brief to the Attorney-General's office. 

Mr Faulkner: I see. 

Senator WATT: Again, my question to you is whether you know anything about that. 

Mr Faulkner: I do not. Well—'anything about that' is a fairly broad proposition, but I am conscious that 

questions of this sort are being asked, and I do not consider I am in a position to answer for the Attorney- 

General's office as to what they did or did not receive. 

Senator WATT: That is not my question. My question to you is, to put it specifically: did you have any 

contact with the Attorney-General's department— 

Mr Faulkner: Office. 

Senator WATT: sorry—office—around the time of early June 2015 when they first sought this briefing from 

the Assistant Treasurer? 

Mr Faulkner: I do not believe so, but I would need to check. I will have to take that on notice. I am afraid I 

do not know the answer to that. 

Senator WATT: As I have said a couple of times, we are just trying to establish a bit of a time line about who 

was involved at what point. 

Mr Faulkner: Yes; quite. 

Senator WATT: If you could take that on notice, that would be great. Jumping ahead a little bit: I understand 

that—and, again, this comes from evidence at one of our earlier hearings—in early December 2015, the Attorney- 

General's Department had its first interaction with the Solicitor-General about these matters. Were you involved 

in those discussions with the Solicitor-General? 

Mr Faulkner: Once again, I am working from memory here. I believe I would have been involved in an early 

conversation with the Solicitor-General and my colleagues in AGS about the 78B notice at some point around that 

time. That sounds to me correct, but I would need to confirm that. 

Senator WATT: Just trying to take your memory back to that point when the Solicitor-General first became 

involved: do you remember whether you initiated that contact with the Solicitor-General? 

Mr Faulkner: I rather doubt it. We have a fairly well established arrangement. AGS is used to making 

arrangements, as is usual in organising conferences with counsel. So, in the normal course, I would expect AGS 

to make an arrangement and I would expect to turn up and be involved in some preliminary discussions. 



Senator WATT: And I think you have said, perhaps in answer to Senator Back, that, when this particular 

notice of a constitutional matter was served, there was no contact with the Attorney-General on that day or in the 

following days. You do not generally get the Attorney-General involved at that immediate stage? 

Mr Faulkner: That is right. 

Senator WATT: And you did not on this particular occasion? 

Mr Faulkner: I believe that is right, yes. 

Senator WATT: Could you take that on notice, just to confirm that that is correct? 

Mr Faulkner: I will certainly let the committee know if that is wrong! 

Senator WATT: So what I am interested in is whether, on the receipt— 

Mr Faulkner: I am confident that did not occur. I do not need to take that on notice. 

Senator WATT: So the Attorney-General and his office? 

Mr Faulkner: I will take that on notice just to confirm, but I am very confident that did not occur. 

Senator WATT: Sure. Again, based on questions on notice that have been answered, we understand that the 

tax office first contacted the Solicitor-General about this matter via the Australian Government Solicitor on 21 

December 2015. We asked the ATO about this. It sounds like the ATO came to the AGS seeking advice, seeking 

to involve the Solicitor-General and the AGS has then facilitated that contact. Mr Loughton, were you involved at 

that point? 

Mr Kingston: I think asking us as lawyers at this point what we did for a client in terms of instructing counsel 

or providing advice does for us clearly go to the heart—and I noted what the chair said about this, but it is a 

preliminary point—of what we would see as privileged communications and privileged work, which then leads us 

to say, 'No, that is not sufficient to not provide it to the committee,' but to say that we would want to consult with 

our client about whether the client wished to raise a public interest immunity issue before responding to a 

question such as the one you have raised. 

Senator WATT: So my real question here is whether that contact with the Solicitor-General was made with 

the knowledge of the Attorney-General or his office. 

Senator BACK: Why don't you ask the Attorney-General? 

Senator WATT: I probably will if we have not already, but we have asked the ATO this and they were 

unaware of whether that contact was made with the Solicitor-General with the Attorney-General's consent or that 

of his office, so that is why I am asking you. 

Mr Kingston: I understand. It is though clearly something which we would seek to take on notice so that we 

could consult with our client in the way that I have described. 

Senator WATT: Okay. If you could take that on notice, that would be great. I understand there is a practice 

within the department—and you have sort of referred to this a little bit, Mr Faulkner—where significant 

constitutional matters are brought to the attention of senior officers within department on at least a monthly basis 

and a constitutional cases report is prepared. We have obtained a number of them through FOI and they are 

heavily redacted for obvious reasons. It would appear that they are provided to senior officers within the 

department and the Attorney-General's office on roughly a monthly basis; is that correct? 

Mr Faulkner: I believe you are referring to a document prepared by AGS. 

Senator WATT: That could be correct, yes. 

Mr Faulkner: I believe you are talking about a document prepared by the AGS which is a report on litigation 

and it is a monthly report. 

Senator WATT: Does that mean I should direct my questions to Mr Loughton? 

Mr Faulkner: It depends what the question is I suspect. 

Senator WATT: We have received a copy of a constitutional cases report that was prepared and emailed to a 

number of people on 22 December 2015. It flagged a range of constitutional cases that were either underway or in 

the offing. It flagged possible intervention in this matter. I can get a copy of that, if it helps. The report mentioned 

this case and said that 'intervention by the Attorney-General is to be considered'. Mr Loughton, do you remember 

that report? It has been provided under FOI. 

Mr Kingston: I appreciate that the report is here and, yes, it is an AGS report that has been circulated, but I 

think questions that go beyond what is in the report is provided to the lawyers working on the matter for clients 



again get into the area I spoke about earlier where we would want the opportunity to consult with our client before 

answering questions about the document that has been provided. 

CHAIR: Are you making the public interest immunity claim— 

Mr Kingston: No. 

CHAIR: or are you saying that as a statutory officer you can but you would need to specify the harm caused 

to the public interest. 

Mr Kingston: No, I am definitely not purporting to make a claim. We would not see it as our claim to make 

as lawyers. We are simply wishing to preserve the ability for the person who can make the claim to decide if they 

wish to. 

Senator BACK: Just before we go on, if I could again seek clarification. Mention has been made of FOI 

requests. Has the committee made these FOI requests? If not the committee, Senator Watt have you or— 

Senator WATT: The shadow Attorney-General, I understand, has made these FOI requests. 

Senator BACK: Mr Dreyfus made these requests? 

Senator WATT: Correct. I do not know if I have more than one copy— 

CHAIR: Do you mind going through the chair? 

Senator WATT: but I have a copy of this report, which I am happy to hand over to you. It is an email dated 

22 December 2015— 

Senator IAN MACDONALD: Just hand it over to the committee, please. 

Senator WATT: I am happy to do that too. It is an email from Mr Andrew Buckland, who is an officer in the 

AGS—is that correct? 

Mr Kingston: Yes. 

Senator WATT: It is to a range of people including Mr Loughton, Mr Faulkner and Mr James Lambie, from 

the Attorney-General's office, and it refers to new matters, the Bell case— 

Senator HINCH: Excuse me, Chair, but could we have copies of this now so that we can work our way 

through it? 

Senator WATT: I will get copies of it. 

CHAIR: Let us pause quickly. I think I have another copy of it. If you can help me find it, that way we can 

hand over another copy. 

Senator WATT: It is an email dated 22 December 2015. It flags this particular litigation and states that 

'intervention by the Attorney-General is to be considered'. That is in the covering email, and then it attaches a 

table listing all of the cases and essentially saying the same thing: 'intervention by the Attorney-General to be 

considered'. As I said, that email was sent to Mr Lambie, among other people, in the Attorney-General's office. 

Do you know whether that was the first of those reports that was provided to the Attorney-General's office that 

flagged the possibility of intervention in this case? 

Mr Kingston: I do not know speaking right now and, in answering that question, I would also want to 

consider whether if there is an earlier report—I do not know—that has been tabled or provided it would give rise 

to similar issues that I have just been speaking about. 

Senator WATT: It is hard to know why an earlier copy of this report would be in some way privileged and 

this one is not, but I understand what you are saying. 

Mr Kingston: And it is simply not knowing if there is and not knowing the circumstance. I am simply not in a 

position to form a view about that on the run and I am ultimately conscious it is not my view to form. 

Senator WATT: Sure. Could you take that on notice, whether there was earlier written advice in any form to 

the Attorney-General's office which flagged the potential for intervention in this litigation? 


Senator WATT: Mr Faulkner, on face value it would seem that this was the first time—unless there is an 

earlier report or earlier advice— 

CHAIR: Senator Watt, to be fair to the witnesses, we probably need to make sure they have a copy— 

Senator WATT: I am not going to ask anything more about that document. It would seem that that is the first 

time that it is raised with the Attorney-General's office. When do you remember the possibility of intervention in 

this litigation first being raised with the Attorney-General's office? 



Senator IAN MACDONALD: With the Attorney-General's office or with the Australian Government 

Solicitor, which these witnesses are from? 

Senator WATT: No. I am asking a senior officer of the Attorney-General's Department when the possibility 

of intervention in this litigation was first raised by the department with the Attorney-General's office. 

Senator IAN MACDONALD: By the department, okay. 

Mr Faulkner: I believe that would be when a submission was put to the Attorney-General's office, which has 

been referred to in previous evidence, on 28 January 2016. 

Senator WATT: Yes. I was going to come to that. I appreciate the committee does not have this in front of 

them, but there is a report that went to the Attorney-General's Department on 22 December 2015, which I think 

you have copies of, that flagged the possibility of intervention. 

Mr Faulkner: I am sorry; could you just ask that question again. 

Senator IAN MACDONALD: The questions are very obtuse. 

Senator WATT: My point is: when did the department first raise with the Attorney-General's office the 

possibility for intervention in this case? 

Mr Faulkner: I take your point. If there were a reference in an update in a box or something which suggested 

that this case was on foot and the question of intervention would need to be considered, then I guess that would be 

the first occasion. 

Senator WATT: Could you take on notice—separate to the request about written advice—whether there was 

any earlier contact with the Attorney-General's Department about the possibility of intervention? 

Mr Faulkner: Do you mean the office? 

Senator WATT: Sorry, the office and the Attorney-General himself. 

Mr Faulkner: Of course. 

Senator WATT: Moving into 2016: again, I understand there was a meeting of departments that occurred to 

discuss this matter on 12 January 2016. 

Mr Faulkner: That may be so. 

Senator WATT: You do not remember participating in a meeting of that nature? 

Mr Faulkner: I participate in so many meetings of this sort that it would be impossible—I do apologise. 

Senator WATT: Mr Loughton, do you know? 

Mr Loughton: I think it would be inappropriate for me to discuss any aspect of confidential legal work that 

we were doing for our clients at that time. 

CHAIR: But the date and the fact that a meeting happened is— 

Mr Kingston: That, with respect, would go to the class of information which we, as lawyers for a client, 

would wish to consult with the client about, rather than saying, 'Yes, we went to a meeting to discuss a matter for 

a client.' 

Senator HINCH: Just saying what date the meeting happened—how does that impinge on this? 

Mr Kingston: The normal concept of what is privileged in relation to a lawyer acting for a client extends to: 

'Are there instructions?' and, 'What you have done in relation to the instructions?' If those meetings happened in a 

public sphere it might be different, but normally it is not merely the content of a communication which triggers 

the concern about privilege, which I accept is not— 

Senator HINCH: Mr Kingston, Senator Watt is not asking for what happened at the meeting and what the 

content was. He is asking you what date it was on and who was there. 

Mr Kingston: Yes, but— 

Senator IAN MACDONALD: Chair, can the witness please finish his answer before being interrupted? 

CHAIR: Mr Kingston, give me your view, and we can refine that, given what the Senate standing orders are. 

Mr Kingston: Yes, and again, to be clear, I am not seeking to make any claim in relation to public interest 

immunity or the like— 

Senator IAN MACDONALD: You have made that very clear, Mr Kingston. 

Mr Kingston: This is simply to preserve the ability of our client to do so, should they choose to do so, and 

they may not. But, in doing that, what we would see as falling within the realm of what we would wish to consult 



with the client on is the work we have done for them—and not just the content of the work, but the nuts and bolts 

of that work: 'Did we go to a meeting about X?' et cetera. 

Senator WATT: I am happy to move on. Mr Faulkner, you have just mentioned, and we have been told in a 

previous hearing, that the department provided a submission to the Attorney-General on the question of 

intervention on 28 January 2016. 

Mr Faulkner: To the Attorney-General's office. 

Senator WATT: To the Attorney-General's office—okay. Who requested that? Was that provided at the 

department's instigation, or were you requested for a submission? 

Mr Faulkner: Just to go back to the more general description I was giving before about how these things 

work: the standard procedure, as it were, is that the 78B notice comes in, we give it consideration in the way that I 

have described, advice is worked up from the Australian Government Solicitor, which comes to the department, 

and the department then puts a submission to the Attorney-General on the issues—the advice, as it were; it sets 

out the advice. 

Senator BACK: To the Attorney-General's office— 

Mr Faulkner: To the Attorney-General's office, clearly, as one would expect. 

Senator BACK: not necessarily to the Attorney-General? 

Mr Faulkner: Quite right—a good point. So that is how it always happens. That has been the standard 

operating procedure, literally for decades. 

Senator WATT: What contact did you have with the Attorney-General's office after providing that 

submission on the issues that were raised in that submission? 

Mr Faulkner: Well, I think it is fair to say, as in every litigation matter, there is a great deal of toing and 

froing between the department and the office on issues—and this was no different. 

Senator WATT: There was a great deal of interaction with the office after providing this submission. As I 

have said before, I know there were different issues as to whether the ATO would intervene on certain points and 

whether the Commonwealth would intervene on certain points. Was the potential for intervention on both of those 

issues flagged with the office at that point? 

Mr Faulkner: I do not believe it would be appropriate for me to get into the nature of the advice given. 

Senator WATT: Can I make a request for a copy of that submission, please. 

Mr Faulkner: We can take that on notice. Certainly. 

Senator WATT: Mr Loughton, around that time, early 2016, did you become aware of any contact that the 

Attorney-General had had with his Western Australian counterparts about this matter? 

Mr Kingston: Senator— 

Senator WATT: My question was to Mr Loughton. 

Mr Kingston: I appreciate that. I was simply going to say that, again, if it was learnt in the course of receiving 

instructions, providing advice and doing the work that we were retained to do, it would fall within the category of 

where we would seek to consult our client before answering. 

Senator WATT: I am not asking about any legal advice that was provided. 

CHAIR: Are you aware of the terms of reference of this committee that go to the heart of the matters that we 

have been mandated by the Senate to ask questions about? 

Senator IAN MACDONALD: Which should not override any obligations you have to your profession and 

your clients. 


CHAIR: It is the obligation to the parliament. 

Senator WATT: Mr Loughton, in early 2016, did you become aware of any contact between the 

Commonwealth Attorney-General and his Western Australian counterpart around the issue of intervention in this 

case? 

Mr Loughton: Again, it would be inappropriate for me to disclose or discuss any aspect of confidential 

communications which did or did not pass between AGS and its clients and those with whom it had dealings in 

relation to this litigation. I believe a proper claim of public interest immunity would attach to any answer I could 

give. 



Senator WATT: I understand that. 

CHAIR: Can you please specify the ground. 

Mr Loughton: It would be destructive of the ability of the Commonwealth to conduct litigation effectively if 

such information were not— 

CHAIR: But that is not a ground that is accepted by the Senate. You need to specify the harm with respect to 

this case specifically, rather than a general claim. 

Senator IAN MACDONALD: That is not true. That is the chair's view. That is not the committee's view. 

Mr Kingston: Chair, again, it is not us actually making the claim. 

Senator IAN MACDONALD: Which you have said about five times so far. 

Mr Kingston: It is preserving the ability for our client to make the claim should they choose to. If they choose 

not to we will, of course, answer the question. 

CHAIR: Thank you. 

Senator WATT: Mr Loughton, let's not worry about what advice happened or anything like that. It is a fact 

that you became aware in early 2016 that the Commonwealth Attorney-General was in contact with his Western 

Australian counterpart about potential intervention in this litigation. 

Mr Loughton: I think I cannot add to what has already been said. 

Senator WATT: Did you have any contact with junior counsel in this matter in February 2016 about the 

potential for intervention in this matter? That is a general request about contact with junior counsel. 

Mr Loughton: Certainly I would regard communications between AGS and counsel as something I could not 

disclose. Again, I believe a claim of public interest immunity would attach to the answer. 

CHAIR: If they are akin to adoption of policies and processes then they do not go to the substantive nature of 

that advice. 

Senator IAN MACDONALD: Chair, how many times do the witnesses have to say they are not making a 

claim for public interest immunity but they would refer to their client, who may want to? We have had about 15 

questions. We are wasting everyone's time by continually asking the same thing and getting the same answer. If 

that is all this committee is going to do—waste everyone's time—we might as well fold up now. 

CHAIR: But is it their client, as in the minister? The minister can make the claim or the officer can make the 

claim. 

Senator WATT: It is a fact, is it not, that on 5 February— 

Senator IAN MACDONALD: Well, ask the question. 

Senator WATT: There is a question mark at the end of this, Senator Macdonald. It is a fact, is it not, that on 5 

February 2016 you sent an email to junior counsel and to Mr Faulkner advising them that the Attorney-General 

was in discussions with the Western Australian counterpart about whether the Commonwealth should intervene in 

this matter? 

Senator BACK: There is a long tradition. We all know that. Governments of both persuasions— 

CHAIR: Excuse me, Senator Back; Mr Loughton has a question before him. 

Mr Loughton: Again, it would be inappropriate for me to disclose communications between AGS and its 

counsel instructed in the matter. 

CHAIR: So you will not confirm or deny the existence of such an email on that basis? 

Senator IAN MACDONALD: Chair, can I raise a point of order? These witnesses have now said 10 times, 

that I can recall, exactly what their position is. They are not raising a claim for public interest immunity, but they 

believe that that is a matter that should be referred to their client, which they have undertaken, in most cases, to 

do. If the committee is just going to keep asking these questions, knowing they will get the same answer, we 

might as well fold up and all go home. 

CHAIR: You would be welcome to do that, Senator Macdonald. 

Mr Kingston: We are happy to take that question on notice, because we are not the ones saying, 'It's not going 

to be answered' or 'It is answered'. We are happy to take those questions on notice. 

Senator IAN MACDONALD: You've said that 11 times! 

Senator HINCH: Chair, can ask a question of you? Is it being said that the Western Australian government is 

the Attorney-General's client, as protection? 



CHAIR: No. The Attorney-General himself is the client is what they are stating. 

Senator WATT: Just to be very clear, can you take on notice a request from me for a copy of any email 

correspondence between Mr Loughton, counsel in this matter and Mr Faulkner regarding any discussions the 

Commonwealth Attorney-General had had around 5 February 2016 about not intervening in this litigation at the 

request of the West Australian government. 

Mr Kingston: Yes, Senator. 

Senator IAN MACDONALD: Chair, can I again raise a point— 

CHAIR: Senator Macdonald, would you like the call? 

Senator IAN MACDONALD: No, I raise a point of order. I understand the committee is calling the 

Attorney-General. These are questions that should go to the Attorney-General, not third-hand to someone— 

Senator WATT: I am happy to put them to him, but I am asking Mr Loughton whether he sent an email. That 

is an entirely appropriate question and I am satisfied with them taking it on notice. 

Senator BACK: I apologise, this is not my field, so I am learning. Am I correct in my assumption, Mr 

Faulkner, that the first formal notice of a matter to the Attorney-General's office is by way of a submission? 

Mr Faulkner: Yes. If by 'formal' we mean the submission from the department setting up the advice in 

relation to any of that, that is right. It has been observed that there may have been a reference in a monthly update 

to the fact that the matter was receiving consideration and that that went to the office. Subject to that qualification, 

yes, correct. 

Senator BACK: The submission would be likely to go to a member of staff in the Attorney-General's office 

and not to the Attorney-General himself or herself? 

Mr Faulkner: I really cannot make any comment on precisely how it is handled once it gets to the office, I am 

afraid. 

Senator BACK: Mr Anderson, can you assist us on this? 

Mr Anderson: The submission is formally addressed to the Attorney, but the office itself then has a process. 

As Mr Faulkner says, we cannot actually say what the process is the office has for allocating it to a relevant 

adviser to consider and then prepare some further advice with the Attorney-General. 

Senator BACK: I want to be very clear. There are two representations by the people of Australia to the High 

Court. One of them is the Australian tax office through the Commissioner of Taxation, in which he makes a 

challenge to Western Australian legislation. Am I correct in my query that the Attorney-General had no 

involvement at all in any decision by the Commissioner of Taxation in making a decision to challenge the 

Western Australian position in the High Court? 

Mr Anderson: That is correct. There was a directions hearing before the High Court in February, at which the 

court said that, if the commissioner wishes to intervene, he has to do it by a particular date and, if the Attorney 

wishes to intervene, he has to do it by a later date. The commissioner decided to intervene in accordance with that 

earlier date, and that was a decision of the commissioner. 

Senator BACK: So the commissioner makes that decision—nothing to do with the Attorney-General. 

Mr Anderson: It is the commissioner's decision. 

Senator BACK: So that is the first one. You have given us excellent information with regard to a decision by 

the Commonwealth to intervene separate to and later than the Commissioner of Taxation's decision to intervene. 

This is on the basis of this discussion between the then Solicitor-General and the Attorney-General. Am I correct 

in my assumption that the Commonwealth then proceeded to also place its challenge before the High Court? 

Excuse my ignorance in the way I am asking my question. 

Mr Anderson: The Commonwealth separately intervened and became a party, and once it had done so it 

formally adopted the submissions made on behalf of the Commissioner of Taxation with respect to the 

constitutional invalidity of the WA Bell act against the revenue law. Then the Commonwealth also made 

additional submissions, and the Solicitor-General represented both the Commissioner of Taxation and the 

Commonwealth. 

Senator BACK: Was it within the powers of the Attorney-General to actually decide to not intervene at the 

Commonwealth level, subsequent to and later than the tax office's intervention or decision? 

Mr Anderson: The High Court had given the attorney a longer period to consider whether the Commonwealth 

should separately intervene, and that was a decision for the Attorney-General. 



Senator BACK: So the Attorney-General could have scotched it, but clearly he did not, because the challenge 

on behalf of the Commonwealth, after the tax office challenge representation, did go forward? 

Mr Anderson: That is correct. The attorney could have decided that the Commonwealth would not intervene, 

in which case the commissioner, having already intervened, would have been a party and the Commonwealth 

would not have been a party. But the attorney did decide that the Commonwealth should intervene, and so the 

Commonwealth did, and both the commissioner and the Commonwealth were then parties. 

Senator BACK: And I think someone said that they joined. Is that right? 

Mr Anderson: They were separate parties still, but the Commonwealth formally adopted the submissions that 

had been put on behalf of the commissioner. 

Senator BACK: So the High Court then found in favour, as I understand it, of the tax office? 

Mr Anderson: It upheld those submissions. 

Senator BACK: The poor old Western Australian taxpayer missed out again. 

Mr Anderson: I think there will be litigation and other matters going up for some time as to what finally 

happens with the proceeds of the liquidation. 

Senator BACK: My final question is: did the High Court make its determination based on the revenue 

question consistent with the tax commissioner's challenge or on constitutional grounds? 

Mr Anderson: As Mr Faulkner indicated earlier, it is still constitutional. It is whether the WA Bell act was 

inconsistent with Commonwealth revenue law, and that inconsistency under section 109 of the Constitution 

means that the WA legislation was invalid. That was the primary basis on which the High Court found that. 

Senator BACK: I think I am clear now. So the Attorney-General was not involved in the tax commissioner's 

decision and did not intervene in the Solicitor-General's decision to proceed to the High Court? 

CHAIR: Are you concurring with what Senator Back just said? 

Mr Anderson: The Solicitor-General did not decide to intervene. Sorry, I think that is what you said. 

Senator BACK: Who did? 

Mr Anderson: The Commissioner of Taxation decided to intervene, and subsequently the attorney decided 

that the Commonwealth should also intervene. 

Senator BACK: The attorney made the decision to intervene? 

Mr Anderson: The attorney made the decision that the Commonwealth should intervene. The Solicitor- 

General did not make a decision about intervention. The Solicitor-General was representing the commissioner and 

representing the Commonwealth. The two decisions were by the Commissioner of Taxation and the Attorney- 

General 

Senator BACK: So the Attorney-General made that decision to intervene? Thank you for that clarification. 

Senator IAN MACDONALD: Just to clarify that, the Solicitor-General does not make decisions. The 

Solicitor-General is merely a solicitor or a counsel. He does what he is told by his client? 

Mr Anderson: As counsel he makes decisions in the carriage of the matter, but the decisions as to the 

intervention are by the parties themselves. 

Senator IAN MACDONALD: By the client, not by the Solicitor-General? 

Mr Anderson: Yes, that is right. 

Senator IAN MACDONALD: In relation to these matters, is the question of costs in constitutional cases 

normally pursued? Does it follow normal court procedures that the losing party pays the winning party? 

Mr Faulkner: I could not possibly give advice on that, of course. Generally speaking, the Attorney-General 

as an intervenor does not seek costs and resists any costs order against him or her as an intervenor. The point is 

that an Attorney-General has a statutory duty to consider intervention in a sense in a statutory role, and it is 

consistent with that that the Attorney should not be subject to costs for having intervened. That is the general 

rubric. Of course, there is always an exception to every general rule, but as a general proposition that is the kind 

of thing you will see in the case. 

Senator IAN MACDONALD: Not specifically in this case, but does the same apply to the commissioner of 

taxation? 

Mr Faulkner: I could not give advice about that, I am afraid. 



Senator IAN MACDONALD: I am really not asking for advice. I am just asking, from your experience in the 

past, whether commissioners of taxation or other similar litigants usually seek costs? What I am really getting at 

is that these things are all costly. I assume whoever pays—the final payer is the liquidator of the Bell Group who 

is trying to conserve some assets to give something to creditors. Are you able to comment on that in this case? 

Mr Faulkner: I am afraid I do not think I can venture into the area. The questions of costs and so on are so 

tied up with the litigation I think I would be venturing into the area of advice, try as I might not to. So I do not 

think I could go there. 

Senator IAN MACDONALD: Are you aware in this case if the commissioner has sought any sort of costs 

order in the actions that have proceeded so far? 

Mr Faulkner: I would have to take that on notice, I am afraid. I do not know. 

Senator IAN MACDONALD: Is that something you would know? It would not be advice; it is a matter of 

fact. 

Mr Faulkner: It certainly is a matter of fact, but I do not know. 

Senator IAN MACDONALD: Could you take that on notice and see if there has been any requests for costs 

by any party and, factually, what the decision was if there has been a decision? 

Mr Anderson: As a matter of fact, we will be able to look at the decision of the court and see whether orders 

were made about costs. As to whether anything subsequent has happened—for example, the commissioner 

seeking to follow up any costs orders if such were made—we will not know about those. 

Senator IAN MACDONALD: No. 

Mr Anderson: But we can say whether cost orders were in fact made. We can take that on notice. 

Senator IAN MACDONALD: Thanks. 

Senator HINCH: Mr Anderson, I have spent a lot of time around courts over the years, but not in the political 

sphere, so you might just answer for me some questions. Ultimately, is it the Attorney-General and not the 

Solicitor-General who makes that final decision to intervene on constitutional grounds? 

Mr Anderson: That is correct. It is the Attorney-General. 

Senator HINCH: If the Attorney-General had said no, could the Solicitor-General, having the ATO as his 

client, have still run the constitutional argument? 

Mr Anderson: Once the commissioner had intervened and become a party the commissioner can run a range 

of arguments. At the heart of what the commissioner wished to argue there was a constitutional argument that was 

going to be run by the Solicitor-General about the validity under section 109 of the Constitution of the WA Bell 

litigation. 

Senator HINCH: So if the Attorney-General's decision had gone the other way and he had said, 'We're not 

going to intervene,' that would not have prevented the Solicitor-General saying, 'The ATO is my client; this is a 

very good defence and I'm going to run it.' 

Mr Anderson: Absolutely. The commissioner had already intervened to make those points. The 

Commonwealth arguments about the revenue law and the invalidity of the WA litigation would be made by the 

commissioner even if the Attorney did not intervene. 

Senator HINCH: Thank you. 

Senator DODSON: Could you help clarify the discussion about this period of time between the 

Commonwealth deciding to join in the litigation once the ATO had embarked upon it? Was that a ruling of sorts 

or was that statutory? What is the cause or the reason for the difference in response to the opportunity to bring an 

action? 

Mr Faulkner: I apologise if I am repeating myself here. I may be doing that; it is hard to recall. It comes 

down to a question of procedure really. Generally speaking, in a proceeding, at a directions hearing, the court will 

set out a timetable for certain actions to occur. In this case, at a directions hearing, the court had effectively set a 

date for the Commissioner of Taxation that was earlier than the date that would have applied to an Attorney- 

General who wanted to intervene, and that set the dates. So it was really just a matter of potential parties to the 

case making their decisions in time to meet the court timetable. The commissioner had until 8 March, I believe, 

and the Attorney had until 30 March, I believe, and that was simply a function of the court timetable. 

Senator DODSON: Could the Commonwealth have conjoined at that point? 



Mr Faulkner: In theory, there are all kinds of theoretical possibilities. But, in the event, what happened 

happened. 

Senator DODSON: I understand that. I am just trying to get clear why the Commonwealth did not seek to 

join at the same point at which the ATO had decided that the constitutionality of the Western Australian 

legislation may be inconsistent. I am trying to understand that. 

Mr Faulkner: Mr Anderson may want to add something to this, but my simple point would be that it would 

be a matter for the tax commissioner to make a decision about what he considered appropriate in the 

circumstances and to instruct accordingly. 

Senator DODSON: I understand the tax commissioner. I am trying to figure out the Attorney-General's office 

not deciding or not seeking to join at the same time. 

Mr Anderson: You are absolutely right. The Attorney could have made a decision earlier than he did, because 

the court simply said it had to be by the 30th. But, as the Attorney said in his statement to the Senate, initially he 

was of the view that the ATO should intervene and that this was primarily about revenue and that there was not a 

need for the Commonwealth to also intervene. He subsequently changed that view after a discussion with the 

Solicitor-General. He could have decided earlier, but at the earlier time he simply thought, 'Well, the 

commissioner's going to intervene. That's enough to protect the Commonwealth's interests.' 

Senator DODSON: What then was the basis for the decision to join? 

Mr Anderson: Some additional arguments beyond the validity of the revenue law alone were also raised. 

There was a question about chapter III of the Constitution, which is about judicial power. There were also some 

questions about the validity of the corporations law. So there were matters that went beyond simply the validity of 

the revenue measure. While I cannot say what persuaded the Attorney—that is a matter for the Attorney—I can 

simply say that there were some additional matters— 

Senator DODSON: Beyond the section 109 considerations? 

Mr Anderson: That is right. 

CHAIR: Mr Anderson, we do understand that you have commitments in another hearing shortly. I am not 

sure if we are in a position to conclude exactly by 10, so we are just seeking some advice about how the other 

committee is tracking. 

Senator IAN MACDONALD: Let me help us here. I am leaving at 10, and I do not think you will be quorate 

then, so I do not think that will be a question. 

Senator WATT: I just want to turn to some issues around the preparation for the first High Court appearance, 

which I think was on 8 February. As I can best put it together, a submission which dealt with these issues went up 

to the Attorney-General's office in late January. Presumably, that was the beginning of a process about deciding 

about whether to intervene or not. I think there was a directions hearing in the High Court on 8 February 2016. 

What is the usual practice of the department? Is the usual practice that you receive advice or approval—whatever 

the terminology is—from the Attorney-General prior to appearing at that kind of a directions hearing? 

Mr Faulkner: There really is, I am afraid to say, no 'usual practice' here, because, as I am sure you would 

understand, litigation is so unpredictable and so non-standard in the way that it plays out. When things go 

tremendously well, then we have a straightforward process where we have all the instructions we need by the time 

of the first directions hearing. It is often the case that that is not so, and it is a relatively trivial matter, in a sense, 

to instruct an AGS lawyer perhaps to go along to observe at a directions hearing. On other occasions we will 

inform the office that we have instructed AGS to appear, to mention to the court that the possibility of an 

intervention is still being considered, and would like the timetable to be structured to take that into account. 

Senator WATT: For this particular directions hearing, on 8 February 2016, I think it was Mr Watson and Ms 

Heger, counsel, appeared for the Commonwealth, instructed by the Australian Government Solicitor. You were 

there on that day, Mr Loughton? 


Senator WATT: Presumably the Australian Government Solicitor was acting on instructions it had received 

from the Attorney-General's Department. 

Mr Faulkner: That is right. 

Senator WATT: Who instructed you to ensure that the Commonwealth was represented on that day? 

Mr Faulkner: That raises an interesting question. I would, strictly speaking, regard myself as having 

instructions to keep open the possibility of the Attorney-General's intervention, should he choose to intervene. But 



often we will inform the office what we are proposing to do, in order to allow the office to bring any new 

development to our attention and that sort of thing. 

Senator WATT: Did you have any contact with the Attorney-General's office prior to 8 February about 

ensuring the Commonwealth was represented? 

Mr Faulkner: I am quite confident we would have. I believe I may have been on leave at that time, I am 

afraid, but I expect my office would have and that would have been the standard kind of approach. 

Senator WATT: Could you take that on notice? 

Mr Faulkner: I would be happy to take that on notice. 

Senator WATT: I am just thinking really hard about that particular appearance. This is a question to both Mr 

Loughton and Mr Faulkner. Did Mr Lambie or anyone else from the Attorney-General's office instruct you or 

request that you appear for the Commonwealth, on that occasion? 

Mr Faulkner: I would have to take on notice what, if any, interactions there were between ourselves and the 

office. I would expect there were some interactions of the sort I have described. An appearance to keep open the 

possibility of intervention would be quite standard. 

Senator WATT: You are taking on notice whether there was any contact with Mr Lambie or the Attorney's 

office and whether instructions were provided to appear or a request was made to appear. Similarly, do you recall 

or does Mr Loughton recall whether the Attorney-General requested that the Commonwealth be represented on 

that occasion? 

Mr Loughton: For my part, a solicitor always acts on instructions. I act on instructions but I cannot disclose 

the content of any particular instructions in any case. 

Senator WATT: We are being very careful here to not ask you about instructions. But it is entirely 

appropriate— 

CHAIR: We can press that point with you. It has to be on the basis of your client making a public interest 

immunity claim. 

Senator WATT: It is entirely appropriate to ask process questions. 

Mr Kingston: We will take that question on notice. 

Senator WATT: Was there contact with the Attorney-General or his office about appearing— 

Mr Faulkner: I would be very confident there would have been, with the office. I do not believe there would 

have been with the Attorney— 

Senator WATT: You would be very confident there would have been contact but you are going to absolutely 

check. 


Senator WATT: I would also like to know how many times there was contact and what form that occurred in. 

Was it verbally, through meetings, written— 

Senator BACK: Chair, we are speaking communication now between the office of a minister and the 

department. 

CHAIR: Which we are perfectly at liberty to ask. 

Senator BACK: Who says that? 

CHAIR: Odgers' says that. 

Senator WATT: I have not been here as long as you have and I know that Senate committees always ask 

questions about who spoke to who and when it occurred. I accept that there are certain things that cannot be 

disclosed about the content of those discussions, but there is nothing wrong with asking questions about who 

spoke to who, when it occurred, where it occurred, whether it was in writing or whether it was verbally. 

Senator IAN MACDONALD: You have been told 12 times so far what the witness's position is. 

CHAIR: Excuse me, I will respond to this as chair. 

Senator IAN MACDONALD: If you are going to waste the committee's time by asking this and getting the 

same answers— 

CHAIR: The resolution of the Senate on matters of policy— 

Senator IAN MACDONALD: then I am getting out of here and the committee can— 

Senator WATT: That is fine with us. 



CHAIR: only prohibits asking for opinions on matters of policy and does not preclude questions asking for 

explanations of policies or factual questions about how and when these things were adopted. In effect, the 

position of the Attorney-General about whether or not and how and when to intervene is, in this context, a policy 

of the government and we are asking technical questions about how and when that position was come to, so those 

questions stand. 

Senator IAN MACDONALD: Sorry, Chair, it is not a matter of government policy on when the Attorney- 

General decides to enter a court case or not. It has got nothing to do with government policy. The witnesses will 

give you the same answer as they have given 12 times already. All I am saying is that if this committee hearing is 

just going to keep asking the same questions and getting the same answers, we might as well all go and do 

something more productive. 

CHAIR: We are quite at liberty to do that, should we wish to. Senator Watt, we have got very limited time. I 

will just let you continue briefly. I have got some questions of my own. 

Senator WATT: We understand from a previous hearing of this committee that the ATO sought advice from 

either the department or the AGS on the question of intervening independently of the Commonwealth. That 

advice was sought between 22 and 24 February 2016. Do either of you remember receiving that request for 

advice? They have told us that it happened. 

Mr Faulkner: May I just say, once again, that I believe questions about precisely what is meant by advice and 

what is meant by the ATO when they said that, particularly what they had in mind, really are questions of fact that 

I believe can only safely be put to that person giving evidence as to precisely what they had in mind. 

Senator WATT: They have told us that this happened. I am asking whether either of you remember that 

request being made. 

Senator IAN MACDONALD: When was this? How long ago? 

Senator WATT: About a year. 

Senator IAN MACDONALD: You remember everything you said and did a year ago, Mr Faulker? I say that 

with all the irony I can manage. It would be improper if you cannot remember every single conversation— 

CHAIR: Senator Macdonald, you do not have the call. He certainly will not be able to give a clear answer if 

you keep putting more words between the question and his answer. 

Senator WATT: Why would the ATO have needed to request advice about intervening independently of the 

Commonwealth if the Commonwealth, via the Attorney-General, was not hesitating about intervening? 

Senator BACK: Oh, hang on. The Attorney-General is entitled to take advice from whatever range of sources 

he wants to. 

CHAIR: You are not the one answering. 

Senator IAN MACDONALD: It should go to the Attorney-General. 

Senator WATT: It is not about the Attorney-General. 

Senator BACK: I thought you were a lawyer. 

CHAIR: Let Mr Faulkner answer the question. Look, Mr Anderson has another commitment very shortly, but 

we cannot let him go if we keep having interruptions to our proceedings. Please put your question, Senator Watt. 

Senator WATT: The Attorney-General has told parliament that his first personal involvement, whatever that 

means, in this matter was on 3 March 2016. Mr Loughton, did you have any contact with the Attorney-General, or 

are you aware of any contact with the Attorney-General himself, about this matter prior to 3 March 2016? 

Mr Loughton: Again, it would be inappropriate for me to disclose any aspect of confidential communications 

between lawyers and clients. 

Senator WATT: I am not asking you what he said or what you said. It is entirely appropriate— 

Mr Loughton: Including— 

Senator WATT: With the greatest of respect, it is entirely appropriate for this committee to ask witnesses 

about contact that they had with ministers, when it occurred or who was there. I am not going to ask you what he 

said. 

CHAIR: Are you refusing to answer the question, Mr Loughton? 

Senator IAN MACDONALD: You have been told 15 times already, since I have been here, what the answer 

is. They will take it on notice— 

Senator WATT: I am not asking you the question. 



CHAIR: Senator Macdonald, will you please come to order. I am chairing this committee. Please come to 

order. Senator Watt has put a question to Mr Loughton and Mr Loughton would like to answer. 

Mr Kingston: May I clarify: we are happy to take that on notice. I understand Senator Watt's reference to the 

type of questions that he is asking. The only thing I would ask to bear in mind—which is why we are seeking to 

take it on notice and merely consult with our client—is that we are acting as lawyers with the client, so we would 

not normally disclose our interactions with the client, whether it is content or merely the fact of the interaction. 

That is why we at least see the sensitivity and wish to consult with the client, and hence take the question on 

notice. 

Senator WATT: I think we know where it will end up, because Senator Brandis has not wanted to reveal 

anything about this entire matter. So I look forward to your answers with great interest. The Attorney-General has 

also said that he was not convinced at an early stage that the Commonwealth needed to intervene separately to the 

ATO. When were you first made aware that the Attorney-General was not convinced of the need for separate 

Commonwealth intervention? Again, I am happy for you to take that on notice if that is your wish. 


Senator WATT: Mr Loughton, my understanding is that the deadline for intervention in this case, I think by 

anyone, and certainly by the ATO, was 8 March 2016. 

Mr Loughton: Not quite. There was a directions hearing on 8 February, as you know. 

Senator WATT: Sorry, yes, there was 8 February, but there was a critical date by which a decision had to be 

made to intervene. 

Mr Loughton: At that directions hearing Justice Bell made orders as to when things should happen, and one 

of the orders she made was: 'That any intervener in support of the plaintiffs, save for the Commonwealth, file and 

serve its submissions on or before 8 March'. Then there was a subsequent order, which said: 'The Commonwealth, 

if it intervenes, file and serve its annotated written submissions on or before 30 March.' So that was a court 

mandated timetable to which we were working. 

Senator WATT: Mr Loughton, in the run-up to 8 March, when those submissions were due, did you advise 

counsel that the Attorney-General had decided to not intervene in this matter? 

Mr Loughton: I believe I have given a response to that question already. 

Mr Kingston: And we will take that on notice. 

Senator WATT: Okay. I put it to you that, on around 4 March 2016, you informed counsel that the Attorney- 

General had decided, in consultation with the Western Australian Attorney-General, that no agency of the 

Commonwealth would intervene in this matter. Do you have anything to say to that? 

Mr Loughton: Again, I cannot disclose the contents of what has passed between counsel and me. 

Senator WATT: I put it to you— 

CHAIR: Sorry, you are not making that claim; you are in effect deferring that to your client, who is in this 

case the minister, to make that claim. Is that correct? 

Mr Loughton: Yes, Chair. 

Senator BACK: If I can make a point of clarification: we already have evidence that the Commissioner of 

Taxation, with no interference or intervention by the Attorney-General, had the capacity to and did comply with 

the 8 March 2016 deadline and challenged in the High Court. Is that correct? That is what you told me. 

Mr Anderson: That is correct. 

Senator BACK: Thank you. Sorry, Chair. 

Senator WATT: Mr Loughton, I put it to you that on 4 March 2016 you instructed counsel, despite what the 

Attorney-General had said, to keep preparing submissions, at least on the issue to do with tax, so that the ATO 

could leave open the option to intervene despite the Attorney-General's view. 

Senator BACK: We have evidence before the committee, Senator Watt, through you, Chair, to the effect that 

the Commissioner of Taxation need have had no involvement from the Attorney-General in making his decision 

to challenge, on a revenue basis, on behalf of the tax office in the High Court of Australia. Forget this nonsense 

about whether you think the Attorney-General did or did not do something. We have had evidence to the effect 

that the tax commissioner could act and did act independent of anybody in that process. That is the evidence we 

have. 



Senator WATT: Thank you, Senator Back. Mr Faulkner, in those days leading up to 8 March, did the 

Attorney-General contact you or did his office contact you about steps that could be taken to prevent the ATO 

from intervening in this matter? 

Mr Faulkner: The Attorney-General did not contact me. I did not discuss the matter with the Attorney- 

General. 

Senator WATT: Which matter have you not discussed with the Attorney-General? 

Mr Faulkner: I was not in communication with the Attorney-General around those times. 

Senator WATT: Were you in contact with his office? 

Mr Faulkner: I would have to take that question on notice. 

Senator WATT: Because you cannot remember or— 

Mr Faulkner: Would you mind repeating the question? 

Senator WATT: The question is whether you had contact with the Attorney-General's office in the days 

leading up to 8 March when submissions were due about steps that could be taken to prevent the ATO from 

intervening in this matter. 

Mr Faulkner: I would regard that, like many other aspects of the proceeding here, as going to the question of 

the way the Commonwealth is organising itself in its preparation for the case. So I feel that I need to take that on 

notice in order to allow the Attorney-General the opportunity to consider whether there are any public interest 

aspects of that that need to be considered. 

Senator BACK: I object— 

CHAIR: Senator Back, I will just advise you that Senator Ludlam has arrived and he is a member of this 

committee, and the committee is still quorate— 

Senator BACK: Senator Macdonald already left. 

CHAIR: Senator Macdonald left before I could advise him of this. He just left. Senator Ludlam is a member 

of the committee. 

Senator BACK: I object on behalf of the coalition senators. We had a hearing set for nine o'clock to 11 

o'clock. With no reference to me, the hearing time was changed to eight o'clock to 10 o'clock. I inconvenienced 

myself to get here as a courtesy to the committee and to the witnesses. 

Senator HINCH: We will did. 

Senator BACK: Yes, I know. Exactly. It is now 10 o'clock. I think it is totally and utterly unruly of this 

committee to continue when coalition senators are not here. I have to leave to catch a plane. So please, Chair, 

bring the proceedings to a halt. Let the witnesses go. If there is the need for a further hearing at any other time, we 

will comply. In the meantime, I ask that you bring the proceedings to a conclusion. 

CHAIR: Are you moving that we— 

Senator BACK: I am. I am a voting member, thank you very much, for these purposes. I am replacing a 

coalition senator, so I can move that. 

CHAIR: I think the committee would like to resolve to continue for a few minutes more. 

Senator WATT: Senator Back, you would be familiar with the fact that while it is customary to have senators 

from both the major parties in attendance it is possible for the committee to continue with an absolute majority. 

Senator BACK: Senator Watt, let me tell you the way in which I have operated— 

CHAIR: I am chairing this inquiry. 

Senator BACK: If I make a comment to you, Chair, I—as Senator Ludlam and others will concur—have 

worked incredibly collaboratively over many years. So I am not making some point. I am saying to you: this will 

break that sense of collaboration that, to me, is critically important in the Senate committee hearing process. You 

do what you like, but I am just saying to you that I think it is very poor form, sorry. 

CHAIR: This committee has at a number of times managed its proceedings by absolute majority, and there is 

an absolute majority is— 

Senator BACK: That is your decision to make and you have made it. I thank the witnesses on my behalf and, 

I am sure, on behalf of Senator Macdonald. I think this is very, very poor. You can make that decision, but make 

it in the knowledge that I believe you are moving outside your rights. You might be within your legal rights to do 

this, but I believe it is a very poor decision. 



CHAIR: Thank you, Senator Back. Hopefully we will not be too much longer. Senator Watt, you may 

continue. 

Senator WATT: Just resuming from where we were— 

CHAIR: Mr Anderson, I do appreciate that you are waiting to appear at another hearing. You are free to go. 

You are also free to stay, depending on your conflicting priorities. We will hopefully only be a few more minutes. 

Mr Anderson: If it is only a few more minutes, I will stay. 

Senator WATT: Mr Faulkner, I do not think I have asked the question this way. Did the Attorney-General or 

his office at any point in the lead-up to 8 March express concern to you about reports or information that 

Commonwealth agencies such as the ATO were considering intervening of their own accord? 

Mr Faulkner: I feel I would need to take that on notice because you are effectively asking me to talk about 

our consideration, the Commonwealth consideration, broadly of these proceedings. Without wanting to give an 

indication one way or the other about the correctness of what you have just put, I would need to take that on 

notice. 

Senator WATT: Okay. It is a fact, is it not, that on around 4 March the Attorney-General or his office asked 

you to draft a legal services direction that would prevent the ATO from intervening of its own accord? 

Mr Faulkner: I would need to take that question on notice. 

Senator WATT: So you cannot rule that out? 

Mr Faulkner: I do not wish to give an indication one way or the other. 

Senator WATT: And it is a fact, is it not, that on or around 5 March 2016 the ATO learned of this proposed 

direction that would prevent them from intervening in this matter and they contacted you to seek advice as to 

whether that sort of direction would be lawful? 

Mr Faulkner: Once again, I would need to take that question on notice on the same basis. 

Senator WATT: It is a fact, is it not, that when you received that request on or around 5 March 2016 you 

advised the ATO that they could not seek advice as to whether the direction was lawful? 

Mr Faulkner: Once again, I am afraid I would need to take that question on notice on the same basis. 

CHAIR: Mr Anderson, while you are still with us, you have taken a number of things on notice because they 

go to the nature of advice. But the ATO made its decision to intervene; on what date was that decision made? 

Mr Faulkner: I might be able to answer that. I believe it was the day on which submissions were filed, which 

was the 30th. I am very confident that is correct. That is when we were advised of that decision. 

CHAIR: Senator Watt asked at our hearing on 7 December 2016 whether the department had been asked to 

draft a direction that the ATO should not intervene. Mr Anderson, you said: 

Not by the Attorney. 

Senator Watt asked: 

Not by his office? 

You took that on notice. Did anyone else? Senator Watt asked: 

… the Attorney did not ask you to draft a formal direction that the ATO should not intervene. 

You said: 

I do not believe so. 

You said that you would take that on notice, and you advised that it goes to the content of legal advice and that it 

is a longstanding practice not to—you have essentially made a public interest immunity claim on his behalf, in 

that regard. 

Mr Anderson: The Attorney has made that claim. 

CHAIR: The question is why you have been happy to tell us that he made a decision to intervene, but not 

happy to tell us whether there was an earlier decision not to intervene? 

Mr Anderson: I think the Attorney himself has said, either in evidence at the estimates recall day on 12 

December 2016 or in his statement to the Senate, that he was initially of the view that the Commonwealth should 

not intervene. 

CHAIR: He has made that statement, that he made earlier decisions not to intervene, but you have not given 

us any of the background information behind those discussions. 



Mr Anderson: No. The Attorney has made a public interest claim in relation to any advice that he may or 

may not have been given by the department about those previous matters. 

Senator WATT: Can I just jump back to where we were? I accept that you have taken a number of questions 

on notice about whether you were requested to issue or draft a direction, and then whether the ATO contacted you 

seeking advice on whether they could seek advice about the legality of any proposed direction. Could you also 

take on notice any contact you had with the Attorney-General or his office about that request from the ATO—so 

not just whether it occurred, but contact that you had with the Attorney-General and his office? 


Senator WATT: It is a fact, is it not, that after you advised the ATO that they could not seek legal advice 

about the legality of this direction that would have stopped them intervening, that on or around 6 March 2016 the 

ATO made a formal request to your department through the Office of Legal Services Coordination to be 

permitted to seek advice on the legality of the Attorney General's proposed direction. That is a fact, is it not? 

Mr Faulkner: Once again, I would need to take that question on notice on the same basis that I have outlined 

previously. 

Senator WATT: Could you also take on notice any contact you had with the Attorney-General or his office 

about that? 


Senator WATT: I think you would be able to answer this one: how often were you in contact with the 

Attorney-General or his office in the days leading up to 8 March 2016? 

Mr Faulkner: I am afraid, literally, I do not know, other than to say that I was not in contact with the 

Attorney-General. So far as the office is concerned—and without wishing to sound evasive—as I am sure you 

could appreciate, dealing with litigation raises myriad trivial matters, and one is in contact for all kinds of things. 

So I really could not say. I am happy, of course, to take on notice the number of contacts there were with the 

Attorney's office if some dates can be specified. 

Senator WATT: Just to recap what Senator Pratt was asking you about the questions on notice: we have been 

advised in an answer to a question on notice from the Attorney-General—in fact, we clarified at the hearing on 7 

December that the Attorney-General did not ask your department to draft a direction to prevent the ATO from 

intervening. Mr Addison, you said you were not asked by the Attorney— 

Mr Anderson: Okay. 

Senator WATT: You took on notice with his office made such a request and you have now said that you are 

not able to answer that question because it goes to legal advice. 


Senator WATT: Okay. So you can understand that leaves open the inference that having closed off the 

Attorney there remains a question mark over the actions of the Attorney-General's office and who asked them to 

do that. 

Mr Anderson: I do not think I can add anything to the fact that we took that on notice, to seek the Attorney's 

view as to whether a claim was to be made, and the claim has now been made. 

Senator WATT: Okay, so the Attorney was not willing to tell this committee whether his office directed you 

to issue a direction, but he was happy enough to rule out the possibility that he personally made that request? 

Mr Anderson: Again, I do not think I can add anything further to the fact that the Attorney has made that 

claim in respect of the answer to that question. 

CHAIR: Okay, so the Attorney made that claim in answering that question? 

Mr Anderson: That is correct. We consulted the Attorney on those matters where we said we would need to 

consult the Attorney. 

Senator WATT: Mr Faulkner, there has obviously been a lot of correspondence over a series of months 

between the Western Australian Crown Solicitor or Solicitor-General and the Attorney-General's Department and 

AGS. Did your department at any point receive a letter from the Western Australian government expressing 

concern about the decision to intervene in this case? 

Mr Faulkner: I wonder whether a question of that sort has already been taken on notice? Would you mind 

repeating that question, I am sorry? 



Senator WATT: As I have asked this, I am thinking it might actually be more appropriate to send to Mr 

Loughton, because any correspondence would probably have gone to him as solicitor on the record. Did the 

Western Australian Crown Solicitor or Solicitor-General write to the Australian Government Solicitor, expressing 

concern about the decision to intervene in this matter? 

Mr Loughton: I think the question asked me to provide information that I believe may properly be the subject 

of a public interest immunity claim. In particular, I note in the Attorney's response to the Senate's order on 30 

November for the production of documents that he has asserted public interest over all documents, 'The disclosure 

of which would disrupt harmony between a state and the Commonwealth'. I believe it is a matter that we would 

need to take on notice, to seek our client's views as to whether a similar claim would be made here. 

Mr Kingston: We will take that question on notice. 

Senator WATT: Okay. And if such correspondence did occur, that the Western Australian Crown Solicitor or 

Solicitor-General expressed concern about intervening, did that correspondence make any reference to 

intervening breaching some kind of agreement, or understanding or deal between the Western Australian and 

Commonwealth governments about the payment of tax? 

Mr Kingston: Again, we would take that on notice. 

Senator WATT: Okay. I understand that after this all fell apart from the Attorney's point of view, and it 

became clear that the ATO was going to intervene in this matter, despite his wishes, that the Attorney wrote to the 

Assistant Treasurer, Ms O'Dwyer, complaining about the ATO's actions and saying, 'They will not be permitted to 

seek the advice of the Solicitor-General if my actions are unlawful.' Mr Faulkner, are you aware of that 

correspondence? 

Mr Faulkner: No, I am not. 

Senator WATT: Are you aware of any correspondence that the Attorney wrote to the Assistant Treasurer 

once the decision had been made to intervene? 

Mr Faulkner: I would have to take that on notice. 

Senator WATT: Mr Anderson, are you aware? 

Mr Anderson: I am not aware of any correspondence. As Mr Faulkner said, we will take that on notice. 

Senator WATT: Okay. Again, I refer to documents we have obtained under FOI—I probably have two copies 

of this. There is an email that was sent by counsel assisting the Solicitor-General, on 4 April 2016—there is a 

redacted name, but it was sent to the Attorney-General's executive assistant—which refers to a meeting that 

occurred that day. We understand from Senator Brandis's own statement to the Senate on 28 November last year 

that a meeting occurred on 4 April 2016 among a number of people, including the Solicitor-General, Mr Gleeson, 

and the Attorney-General. That meeting discussed the attempts the Solicitor-General had made to resolve these 

issues with the Western Australian Solicitor-General. The Solicitor-General—this is all on the record; the 

Attorney-General has said this—reported to the Attorney those discussions had not resolved the issues with the 

Western Australian government. That meeting occurred on 4 April. The FOI documents include an email from 

counsel assisting to the Attorney-General's executive assistant saying, 'Thank you'—whatever the person's name 

is—'again for all of your help today. You did such a great job, with all of us speaking over the top of each other!' 

Were you at that meeting, Mr Faulkner? 

Mr Faulkner: I am not quite sure which meeting— 

Senator WATT: It sounded like a pretty heated meeting, on 4 April, where the Solicitor-General reported 

back to the Attorney-General as to his unsuccessful negotiations with the Western Australian Solicitor-General. 

Mr Faulkner: I would need to check my records, I am afraid. 

Senator WATT: Mr Loughton, were you at that meeting? 

Mr Loughton: Again, that goes to something that I could not disclose without the consent of my client. 

Senator WATT: Were you at a meeting with the Attorney-General on 4 April 2016? That is entirely 

appropriate— 

CHAIR: It is quite proper for you to answer the question. 

Mr Kingston: This does go to something similar that was asked in the past where we were saying that our 

interactions with our client in the context of providing legal advice—did we have a meeting with them and who 

was at that meeting—we would regard as falling within the type of matters we would refer to our client to decide 

if they wanted to make a claim or if they felt they were able to make a claim. 



Senator WATT: So you are saying that Senate committees cannot ask representatives of the AGS or the 

Attorney-General's Department whether they have met with their minister? 

Mr Kingston: No, I am by no means saying anything about what a Senate committee can ask. I am not even 

commenting on what be answered. I am simply saying that we wish to take the question on notice to consult with 

our client. 

Senator WATT: You really have to question the point of Senate committees if senators cannot ask senior 

public servants whether they have met with their minister. I am not asking you what was discussed— 

CHAIR: He is entitled to refer to the minister—whether he was at the meeting or not. I am saying that as 

absurd as it seemingly is. 

Mr Kingston: The distinction I am making is that we are not seeing ourselves merely as public servants, or 

solely, but as the lawyers acting—and that giving it a particular context. That is all I wanted to add. 

Senator WATT: Mr Anderson, were you at that meeting? 

Mr Anderson: I was not. 

Senator WATT: You were not at a meeting with the Attorney or the Solicitor-General on 4 April 2016? 


Senator WATT: Mr Faulkner, in the time that has elapsed has your memory returned as to whether you were 

at that meeting on 4 April? 

Mr Faulkner: I may have been—put it that way. I would need to check my records. 

Senator WATT: Do you remember attending any meeting around that time, with the Attorney-General and 

the Solicitor-General, that became quite heated? 


Senator WATT: All very civil? 

Mr Faulkner: I have never been in a meeting with the Solicitor-General and the Attorney-General—not that I 

have been in any that I can recall where there has been any heat. 

Senator WATT: No need for an exclamation mark at the end of the email then? 

Mr Faulkner: Not in my experience. 

Senator WATT: So you have not been at a meeting with the Attorney-General and the Solicitor-General 

where people were 'speaking over the top of each other!' 

Mr Faulkner: I certainly cannot remember such a meeting, no. 

Senator WATT: Perhaps different people have different interpretations of what heat is! Senator Hinch asked 

a few questions earlier, I think, about this. Mr Faulkner, Mr Anderson has previously told this committee that the 

Attorney-General's Department first became aware of the now infamous legal services direction that was issued 

by the Attorney-General to constrain the Solicitor-General—your department first became aware of that direction 

on 20 April 2016? 

Mr Anderson: That has been my evidence. 

Senator WATT: I think we have gone over that two or three times, Mr Anderson. Mr Faulkner, that is the 

evidence that Mr Anderson has given. Is that the case for you as well? You did not have any knowledge prior to 

20 April about the potential for this broad direction? 

Mr Faulkner: I would need to take that on notice. I have not given that any thought at all. 

Senator WATT: Okay. From the conversations you were involved in, whether with his office or with the 

Attorney-General himself, how would you describe the Attorney-General's reaction to the tax office pursuing 

intervention in this case? 

Mr Faulkner: I could not possibly offer view on any discussions I have had with the Attorney-General. 

Senator WATT: Do you believe that there was any connection between the events surrounding the Bell 

litigation, the tax office intervening and the actions of the Solicitor-General in that the entire process? Do you 

believe there was any connection between any of that and the unprecedented direction issued to constrain the 

Solicitor-General? 

Mr Faulkner: I assume you do not expect me to answer that! 

Senator WATT: Do you have a view? 

Mr Faulkner: I could not possibly offer an opinion. 



Senator WATT: Okay. 

CHAIR: Thank you all for appearing today. I understand you have a busy day of giving evidence, Mr 

Anderson! I hope you get a five-minute break before you are called in to the other committee. The questions on 

notice are due in by 3 March. 

Committee adjourned at 10:21

SENATE

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