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Page 14 Senate Friday, 17 February 2017 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? Mr Kingston: Yes. 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? LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 15 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 LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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