SENATE

Friday, 17 February 2017 Senate Page 17
Senator WATT: I understand that.
CHAIR: Can you please specify the ground.
Mr Loughton: It would be destructive of the ability of the Commonwealth to conduct litigation effectively if
such information were not—
CHAIR: But that is not a ground that is accepted by the Senate. You need to specify the harm with respect to
this case specifically, rather than a general claim.
Senator IAN MACDONALD: That is not true. That is the chair's view. That is not the committee's view.
Mr Kingston: Chair, again, it is not us actually making the claim.
Senator IAN MACDONALD: Which you have said about five times so far.
Mr Kingston: It is preserving the ability for our client to make the claim should they choose to. If they choose
not to we will, of course, answer the question.
CHAIR: Thank you.
Senator WATT: Mr Loughton, let's not worry about what advice happened or anything like that. It is a fact
that you became aware in early 2016 that the Commonwealth Attorney-General was in contact with his Western
Australian counterpart about potential intervention in this litigation.
Mr Loughton: I think I cannot add to what has already been said.
Senator WATT: Did you have any contact with junior counsel in this matter in February 2016 about the
potential for intervention in this matter? That is a general request about contact with junior counsel.
Mr Loughton: Certainly I would regard communications between AGS and counsel as something I could not
disclose. Again, I believe a claim of public interest immunity would attach to the answer.
CHAIR: If they are akin to adoption of policies and processes then they do not go to the substantive nature of
that advice.
Senator IAN MACDONALD: Chair, how many times do the witnesses have to say they are not making a
claim for public interest immunity but they would refer to their client, who may want to? We have had about 15
questions. We are wasting everyone's time by continually asking the same thing and getting the same answer. If
that is all this committee is going to do—waste everyone's time—we might as well fold up now.
CHAIR: But is it their client, as in the minister? The minister can make the claim or the officer can make the
claim.
Senator WATT: It is a fact, is it not, that on 5 February—
Senator IAN MACDONALD: Well, ask the question.
Senator WATT: There is a question mark at the end of this, Senator Macdonald. It is a fact, is it not, that on 5
February 2016 you sent an email to junior counsel and to Mr Faulkner advising them that the Attorney-General
was in discussions with the Western Australian counterpart about whether the Commonwealth should intervene in
this matter?
Senator BACK: There is a long tradition. We all know that. Governments of both persuasions—
CHAIR: Excuse me, Senator Back; Mr Loughton has a question before him.
Mr Loughton: Again, it would be inappropriate for me to disclose communications between AGS and its
counsel instructed in the matter.
CHAIR: So you will not confirm or deny the existence of such an email on that basis?
Senator IAN MACDONALD: Chair, can I raise a point of order? These witnesses have now said 10 times,
that I can recall, exactly what their position is. They are not raising a claim for public interest immunity, but they
believe that that is a matter that should be referred to their client, which they have undertaken, in most cases, to
do. If the committee is just going to keep asking these questions, knowing they will get the same answer, we
might as well fold up and all go home.
CHAIR: You would be welcome to do that, Senator Macdonald.
Mr Kingston: We are happy to take that question on notice, because we are not the ones saying, 'It's not going
to be answered' or 'It is answered'. We are happy to take those questions on notice.
Senator IAN MACDONALD: You've said that 11 times!
Senator HINCH: Chair, can ask a question of you? Is it being said that the Western Australian government is
the Attorney-General's client, as protection?
LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE