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Page 22 Senate Friday, 17 February 2017 often we will inform the office what we are proposing to do, in order to allow the office to bring any new development to our attention and that sort of thing. Senator WATT: Did you have any contact with the Attorney-General's office prior to 8 February about ensuring the Commonwealth was represented? Mr Faulkner: I am quite confident we would have. I believe I may have been on leave at that time, I am afraid, but I expect my office would have and that would have been the standard kind of approach. Senator WATT: Could you take that on notice? Mr Faulkner: I would be happy to take that on notice. Senator WATT: I am just thinking really hard about that particular appearance. This is a question to both Mr Loughton and Mr Faulkner. Did Mr Lambie or anyone else from the Attorney-General's office instruct you or request that you appear for the Commonwealth, on that occasion? Mr Faulkner: I would have to take on notice what, if any, interactions there were between ourselves and the office. I would expect there were some interactions of the sort I have described. An appearance to keep open the possibility of intervention would be quite standard. Senator WATT: You are taking on notice whether there was any contact with Mr Lambie or the Attorney's office and whether instructions were provided to appear or a request was made to appear. Similarly, do you recall or does Mr Loughton recall whether the Attorney-General requested that the Commonwealth be represented on that occasion? Mr Loughton: For my part, a solicitor always acts on instructions. I act on instructions but I cannot disclose the content of any particular instructions in any case. Senator WATT: We are being very careful here to not ask you about instructions. But it is entirely appropriate— CHAIR: We can press that point with you. It has to be on the basis of your client making a public interest immunity claim. Senator WATT: It is entirely appropriate to ask process questions. Mr Kingston: We will take that question on notice. Senator WATT: Was there contact with the Attorney-General or his office about appearing— Mr Faulkner: I would be very confident there would have been, with the office. I do not believe there would have been with the Attorney— Senator WATT: You would be very confident there would have been contact but you are going to absolutely check. Mr Faulkner: Yes. Senator WATT: I would also like to know how many times there was contact and what form that occurred in. Was it verbally, through meetings, written— Senator BACK: Chair, we are speaking communication now between the office of a minister and the department. CHAIR: Which we are perfectly at liberty to ask. Senator BACK: Who says that? CHAIR: Odgers' says that. Senator WATT: I have not been here as long as you have and I know that Senate committees always ask questions about who spoke to who and when it occurred. I accept that there are certain things that cannot be disclosed about the content of those discussions, but there is nothing wrong with asking questions about who spoke to who, when it occurred, where it occurred, whether it was in writing or whether it was verbally. Senator IAN MACDONALD: You have been told 12 times so far what the witness's position is. CHAIR: Excuse me, I will respond to this as chair. Senator IAN MACDONALD: If you are going to waste the committee's time by asking this and getting the same answers— CHAIR: The resolution of the Senate on matters of policy— Senator IAN MACDONALD: then I am getting out of here and the committee can— Senator WATT: That is fine with us. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 23 CHAIR: only prohibits asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about how and when these things were adopted. In effect, the position of the Attorney-General about whether or not and how and when to intervene is, in this context, a policy of the government and we are asking technical questions about how and when that position was come to, so those questions stand. Senator IAN MACDONALD: Sorry, Chair, it is not a matter of government policy on when the Attorney- General decides to enter a court case or not. It has got nothing to do with government policy. The witnesses will give you the same answer as they have given 12 times already. All I am saying is that if this committee hearing is just going to keep asking the same questions and getting the same answers, we might as well all go and do something more productive. CHAIR: We are quite at liberty to do that, should we wish to. Senator Watt, we have got very limited time. I will just let you continue briefly. I have got some questions of my own. Senator WATT: We understand from a previous hearing of this committee that the ATO sought advice from either the department or the AGS on the question of intervening independently of the Commonwealth. That advice was sought between 22 and 24 February 2016. Do either of you remember receiving that request for advice? They have told us that it happened. Mr Faulkner: May I just say, once again, that I believe questions about precisely what is meant by advice and what is meant by the ATO when they said that, particularly what they had in mind, really are questions of fact that I believe can only safely be put to that person giving evidence as to precisely what they had in mind. Senator WATT: They have told us that this happened. I am asking whether either of you remember that request being made. Senator IAN MACDONALD: When was this? How long ago? Senator WATT: About a year. Senator IAN MACDONALD: You remember everything you said and did a year ago, Mr Faulker? I say that with all the irony I can manage. It would be improper if you cannot remember every single conversation— CHAIR: Senator Macdonald, you do not have the call. He certainly will not be able to give a clear answer if you keep putting more words between the question and his answer. Senator WATT: Why would the ATO have needed to request advice about intervening independently of the Commonwealth if the Commonwealth, via the Attorney-General, was not hesitating about intervening? Senator BACK: Oh, hang on. The Attorney-General is entitled to take advice from whatever range of sources he wants to. CHAIR: You are not the one answering. Senator IAN MACDONALD: It should go to the Attorney-General. Senator WATT: It is not about the Attorney-General. Senator BACK: I thought you were a lawyer. CHAIR: Let Mr Faulkner answer the question. Look, Mr Anderson has another commitment very shortly, but we cannot let him go if we keep having interruptions to our proceedings. Please put your question, Senator Watt. Senator WATT: The Attorney-General has told parliament that his first personal involvement, whatever that means, in this matter was on 3 March 2016. Mr Loughton, did you have any contact with the Attorney-General, or are you aware of any contact with the Attorney-General himself, about this matter prior to 3 March 2016? Mr Loughton: Again, it would be inappropriate for me to disclose any aspect of confidential communications between lawyers and clients. Senator WATT: I am not asking you what he said or what you said. It is entirely appropriate— Mr Loughton: Including— Senator WATT: With the greatest of respect, it is entirely appropriate for this committee to ask witnesses about contact that they had with ministers, when it occurred or who was there. I am not going to ask you what he said. CHAIR: Are you refusing to answer the question, Mr Loughton? Senator IAN MACDONALD: You have been told 15 times already, since I have been here, what the answer is. They will take it on notice— Senator WATT: I am not asking you the question. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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