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Page 18 Senate Friday, 17 February 2017 CHAIR: No. The Attorney-General himself is the client is what they are stating. Senator WATT: Just to be very clear, can you take on notice a request from me for a copy of any email correspondence between Mr Loughton, counsel in this matter and Mr Faulkner regarding any discussions the Commonwealth Attorney-General had had around 5 February 2016 about not intervening in this litigation at the request of the West Australian government. Mr Kingston: Yes, Senator. Senator IAN MACDONALD: Chair, can I again raise a point— CHAIR: Senator Macdonald, would you like the call? Senator IAN MACDONALD: No, I raise a point of order. I understand the committee is calling the Attorney-General. These are questions that should go to the Attorney-General, not third-hand to someone— Senator WATT: I am happy to put them to him, but I am asking Mr Loughton whether he sent an email. That is an entirely appropriate question and I am satisfied with them taking it on notice. Senator BACK: I apologise, this is not my field, so I am learning. Am I correct in my assumption, Mr Faulkner, that the first formal notice of a matter to the Attorney-General's office is by way of a submission? Mr Faulkner: Yes. If by 'formal' we mean the submission from the department setting up the advice in relation to any of that, that is right. It has been observed that there may have been a reference in a monthly update to the fact that the matter was receiving consideration and that that went to the office. Subject to that qualification, yes, correct. Senator BACK: The submission would be likely to go to a member of staff in the Attorney-General's office and not to the Attorney-General himself or herself? Mr Faulkner: I really cannot make any comment on precisely how it is handled once it gets to the office, I am afraid. Senator BACK: Mr Anderson, can you assist us on this? Mr Anderson: The submission is formally addressed to the Attorney, but the office itself then has a process. As Mr Faulkner says, we cannot actually say what the process is the office has for allocating it to a relevant adviser to consider and then prepare some further advice with the Attorney-General. Senator BACK: I want to be very clear. There are two representations by the people of Australia to the High Court. One of them is the Australian tax office through the Commissioner of Taxation, in which he makes a challenge to Western Australian legislation. Am I correct in my query that the Attorney-General had no involvement at all in any decision by the Commissioner of Taxation in making a decision to challenge the Western Australian position in the High Court? Mr Anderson: That is correct. There was a directions hearing before the High Court in February, at which the court said that, if the commissioner wishes to intervene, he has to do it by a particular date and, if the Attorney wishes to intervene, he has to do it by a later date. The commissioner decided to intervene in accordance with that earlier date, and that was a decision of the commissioner. Senator BACK: So the commissioner makes that decision—nothing to do with the Attorney-General. Mr Anderson: It is the commissioner's decision. Senator BACK: So that is the first one. You have given us excellent information with regard to a decision by the Commonwealth to intervene separate to and later than the Commissioner of Taxation's decision to intervene. This is on the basis of this discussion between the then Solicitor-General and the Attorney-General. Am I correct in my assumption that the Commonwealth then proceeded to also place its challenge before the High Court? Excuse my ignorance in the way I am asking my question. Mr Anderson: The Commonwealth separately intervened and became a party, and once it had done so it formally adopted the submissions made on behalf of the Commissioner of Taxation with respect to the constitutional invalidity of the WA Bell act against the revenue law. Then the Commonwealth also made additional submissions, and the Solicitor-General represented both the Commissioner of Taxation and the Commonwealth. Senator BACK: Was it within the powers of the Attorney-General to actually decide to not intervene at the Commonwealth level, subsequent to and later than the tax office's intervention or decision? Mr Anderson: The High Court had given the attorney a longer period to consider whether the Commonwealth should separately intervene, and that was a decision for the Attorney-General. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 19 Senator BACK: So the Attorney-General could have scotched it, but clearly he did not, because the challenge on behalf of the Commonwealth, after the tax office challenge representation, did go forward? Mr Anderson: That is correct. The attorney could have decided that the Commonwealth would not intervene, in which case the commissioner, having already intervened, would have been a party and the Commonwealth would not have been a party. But the attorney did decide that the Commonwealth should intervene, and so the Commonwealth did, and both the commissioner and the Commonwealth were then parties. Senator BACK: And I think someone said that they joined. Is that right? Mr Anderson: They were separate parties still, but the Commonwealth formally adopted the submissions that had been put on behalf of the commissioner. Senator BACK: So the High Court then found in favour, as I understand it, of the tax office? Mr Anderson: It upheld those submissions. Senator BACK: The poor old Western Australian taxpayer missed out again. Mr Anderson: I think there will be litigation and other matters going up for some time as to what finally happens with the proceeds of the liquidation. Senator BACK: My final question is: did the High Court make its determination based on the revenue question consistent with the tax commissioner's challenge or on constitutional grounds? Mr Anderson: As Mr Faulkner indicated earlier, it is still constitutional. It is whether the WA Bell act was inconsistent with Commonwealth revenue law, and that inconsistency under section 109 of the Constitution means that the WA legislation was invalid. That was the primary basis on which the High Court found that. Senator BACK: I think I am clear now. So the Attorney-General was not involved in the tax commissioner's decision and did not intervene in the Solicitor-General's decision to proceed to the High Court? CHAIR: Are you concurring with what Senator Back just said? Mr Anderson: The Solicitor-General did not decide to intervene. Sorry, I think that is what you said. Senator BACK: Who did? Mr Anderson: The Commissioner of Taxation decided to intervene, and subsequently the attorney decided that the Commonwealth should also intervene. Senator BACK: The attorney made the decision to intervene? Mr Anderson: The attorney made the decision that the Commonwealth should intervene. The Solicitor- General did not make a decision about intervention. The Solicitor-General was representing the commissioner and representing the Commonwealth. The two decisions were by the Commissioner of Taxation and the Attorney- General Senator BACK: So the Attorney-General made that decision to intervene? Thank you for that clarification. Senator IAN MACDONALD: Just to clarify that, the Solicitor-General does not make decisions. The Solicitor-General is merely a solicitor or a counsel. He does what he is told by his client? Mr Anderson: As counsel he makes decisions in the carriage of the matter, but the decisions as to the intervention are by the parties themselves. Senator IAN MACDONALD: By the client, not by the Solicitor-General? Mr Anderson: Yes, that is right. Senator IAN MACDONALD: In relation to these matters, is the question of costs in constitutional cases normally pursued? Does it follow normal court procedures that the losing party pays the winning party? Mr Faulkner: I could not possibly give advice on that, of course. Generally speaking, the Attorney-General as an intervenor does not seek costs and resists any costs order against him or her as an intervenor. The point is that an Attorney-General has a statutory duty to consider intervention in a sense in a statutory role, and it is consistent with that that the Attorney should not be subject to costs for having intervened. That is the general rubric. Of course, there is always an exception to every general rule, but as a general proposition that is the kind of thing you will see in the case. Senator IAN MACDONALD: Not specifically in this case, but does the same apply to the commissioner of taxation? Mr Faulkner: I could not give advice about that, I am afraid. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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