SENATE

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