SENATE
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Page 6 Senate Friday, 17 February 2017<br />
Mr Faulkner: Yes.<br />
Senator WATT: And if there were any meeting notes taken, could I please request a copy of those?<br />
Mr Faulkner: I can take that on notice.<br />
Senator WATT: I am aware that, as this litigation progressed, there were certain issues on which the<br />
Australian tax office could intervene and there were other issues on which the Attorney-General, on behalf of the<br />
Commonwealth, could intervene. In you providing instructions to Mr Loughton, as opposed to the ATO providing<br />
instructions, was that because there was the possibility of the Commonwealth, as opposed to the ATO,<br />
intervening?<br />
Mr Faulkner: The issuing of the 78B notice means that the question of whether the Attorney-General wishes<br />
to intervene in the matter arises, and that question needs to be considered, so instructions provided to AGS to<br />
begin consideration of those issues. That is the question of the Attorney-General's intervention in the matter that<br />
raises the constitutional issues. That says nothing about any other party, including the Commissioner of Taxation.<br />
It is not uncommon for other emanations of the Commonwealth to have an interest in a proceeding which is also<br />
constitutional, so one could overstate the significance of there being another interested Commonwealth party in<br />
any particular proceeding of this sort. Certainly, my instructions to AGS were not contingent on any other agency<br />
having an interest in the matter.<br />
Senator WATT: Did you personally have a view at that point, when you provided instructions, as to whether<br />
the Commonwealth should intervene?<br />
Mr Faulkner: I could not express an opinion on an opinion.<br />
Senator WATT: Around that time, you have mentioned there was a meeting involving some people prior to<br />
providing those instructions. Is that correct?<br />
Mr Faulkner: No. I am not looking to be difficult here but, I believe that all I think I have said—all I intended<br />
to say, perhaps—is that my recollection is that the 78B notice was received around 1 December. I would expect<br />
that those of us generally with an interest in such things—Mr Loughton's area, and myself, at the very least—<br />
would have discussed that matter fairly shortly thereafter, possibly immediately. That is possible. So that is the<br />
kind of meeting that I had in mind. Issuing of instructions was, I imagine, around that time as well.<br />
Senator WATT: Did you have any contact with anyone in the Attorney-General's office at around that point?<br />
Mr Faulkner: No.<br />
Senator WATT: Okay—and not with the Attorney-General himself either?<br />
Mr Faulkner: No.<br />
Senator WATT: Okay. Is it normal at this fairly early stage of litigation for matters to be conducted by<br />
departmental officials as opposed to involving a minister's office?<br />
Mr Faulkner: Yes, but perhaps I could elaborate a little bit on the general process. I will not take up too much<br />
time and I apologise if I am repeating some things that have been said previously; that is entirely possible. The<br />
process for dealing with 79B notices—that is the notice that is given of a constitutional matter wherever one<br />
arises in any court—is the subject of a standing authorisation which has taken the same form over a couple of<br />
decades now. I can say this with some confidence because I have been there for a couple of decades and I have<br />
been responsible for the way these things work.<br />
Broadly, an Attorney-General will authorise initial consideration of all 78B notices which come in by my own<br />
office in the Attorney-General's Department, the Australian Government Solicitor and the Solicitor-General's<br />
office. Where the matter is not significant—we consider it not to be significant—we are authorised to indicate to<br />
the parties that there will be no intervention. However, wherever it is a significant matter, we prepare advice for<br />
the Attorney-General and it is considered in due course. So it is not at all uncommon for that process of preparing<br />
the advice for the Attorney-General to take quite a while. There can be all kinds of considerations like, for<br />
example, whether we expect the states to intervene, what their submissions might be, who might be in the case<br />
and able to put the arguments that we are interested in effectively or whether there is any utility in us being there<br />
to say particular things. It is quite a complex process and it takes quite some time. It is virtually never the case<br />
that that preliminary work would be raised specifically with the office or the Attorney-General. Does that help at<br />
all?<br />
Senator WATT: That is helpful. I am aware that in one of our previous hearings—I am not sure which<br />
witness it was—we had been told that the Australian tax office first sought advice from the Australian<br />
Government Solicitor around this matter, presumably relating to the Western Australian legislation, on 7 May<br />
2015. Mr Loughton, are you aware of that request for advice?<br />
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