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Page 18 Senate Friday, 17 February 2017<br />
CHAIR: No. The Attorney-General himself is the client is what they are stating.<br />
Senator WATT: Just to be very clear, can you take on notice a request from me for a copy of any email<br />
correspondence between Mr Loughton, counsel in this matter and Mr Faulkner regarding any discussions the<br />
Commonwealth Attorney-General had had around 5 February 2016 about not intervening in this litigation at the<br />
request of the West Australian government.<br />
Mr Kingston: Yes, Senator.<br />
Senator IAN MACDONALD: Chair, can I again raise a point—<br />
CHAIR: Senator Macdonald, would you like the call?<br />
Senator IAN MACDONALD: No, I raise a point of order. I understand the committee is calling the<br />
Attorney-General. These are questions that should go to the Attorney-General, not third-hand to someone—<br />
Senator WATT: I am happy to put them to him, but I am asking Mr Loughton whether he sent an email. That<br />
is an entirely appropriate question and I am satisfied with them taking it on notice.<br />
Senator BACK: I apologise, this is not my field, so I am learning. Am I correct in my assumption, Mr<br />
Faulkner, that the first formal notice of a matter to the Attorney-General's office is by way of a submission?<br />
Mr Faulkner: Yes. If by 'formal' we mean the submission from the department setting up the advice in<br />
relation to any of that, that is right. It has been observed that there may have been a reference in a monthly update<br />
to the fact that the matter was receiving consideration and that that went to the office. Subject to that qualification,<br />
yes, correct.<br />
Senator BACK: The submission would be likely to go to a member of staff in the Attorney-General's office<br />
and not to the Attorney-General himself or herself?<br />
Mr Faulkner: I really cannot make any comment on precisely how it is handled once it gets to the office, I am<br />
afraid.<br />
Senator BACK: Mr Anderson, can you assist us on this?<br />
Mr Anderson: The submission is formally addressed to the Attorney, but the office itself then has a process.<br />
As Mr Faulkner says, we cannot actually say what the process is the office has for allocating it to a relevant<br />
adviser to consider and then prepare some further advice with the Attorney-General.<br />
Senator BACK: I want to be very clear. There are two representations by the people of Australia to the High<br />
Court. One of them is the Australian tax office through the Commissioner of Taxation, in which he makes a<br />
challenge to Western Australian legislation. Am I correct in my query that the Attorney-General had no<br />
involvement at all in any decision by the Commissioner of Taxation in making a decision to challenge the<br />
Western Australian position in the High Court?<br />
Mr Anderson: That is correct. There was a directions hearing before the High Court in February, at which the<br />
court said that, if the commissioner wishes to intervene, he has to do it by a particular date and, if the Attorney<br />
wishes to intervene, he has to do it by a later date. The commissioner decided to intervene in accordance with that<br />
earlier date, and that was a decision of the commissioner.<br />
Senator BACK: So the commissioner makes that decision—nothing to do with the Attorney-General.<br />
Mr Anderson: It is the commissioner's decision.<br />
Senator BACK: So that is the first one. You have given us excellent information with regard to a decision by<br />
the Commonwealth to intervene separate to and later than the Commissioner of Taxation's decision to intervene.<br />
This is on the basis of this discussion between the then Solicitor-General and the Attorney-General. Am I correct<br />
in my assumption that the Commonwealth then proceeded to also place its challenge before the High Court?<br />
Excuse my ignorance in the way I am asking my question.<br />
Mr Anderson: The Commonwealth separately intervened and became a party, and once it had done so it<br />
formally adopted the submissions made on behalf of the Commissioner of Taxation with respect to the<br />
constitutional invalidity of the WA Bell act against the revenue law. Then the Commonwealth also made<br />
additional submissions, and the Solicitor-General represented both the Commissioner of Taxation and the<br />
Commonwealth.<br />
Senator BACK: Was it within the powers of the Attorney-General to actually decide to not intervene at the<br />
Commonwealth level, subsequent to and later than the tax office's intervention or decision?<br />
Mr Anderson: The High Court had given the attorney a longer period to consider whether the Commonwealth<br />
should separately intervene, and that was a decision for the Attorney-General.<br />
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