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Page 10 Senate Friday, 17 February 2017 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 LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 11 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? LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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