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Page 12 Senate Friday, 17 February 2017 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. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 13 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 LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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