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Page 24 Senate Friday, 17 February 2017 CHAIR: Senator Macdonald, will you please come to order. I am chairing this committee. Please come to order. Senator Watt has put a question to Mr Loughton and Mr Loughton would like to answer. Mr Kingston: May I clarify: we are happy to take that on notice. I understand Senator Watt's reference to the type of questions that he is asking. The only thing I would ask to bear in mind—which is why we are seeking to take it on notice and merely consult with our client—is that we are acting as lawyers with the client, so we would not normally disclose our interactions with the client, whether it is content or merely the fact of the interaction. That is why we at least see the sensitivity and wish to consult with the client, and hence take the question on notice. Senator WATT: I think we know where it will end up, because Senator Brandis has not wanted to reveal anything about this entire matter. So I look forward to your answers with great interest. The Attorney-General has also said that he was not convinced at an early stage that the Commonwealth needed to intervene separately to the ATO. When were you first made aware that the Attorney-General was not convinced of the need for separate Commonwealth intervention? Again, I am happy for you to take that on notice if that is your wish. Mr Kingston: Yes. Senator WATT: Mr Loughton, my understanding is that the deadline for intervention in this case, I think by anyone, and certainly by the ATO, was 8 March 2016. Mr Loughton: Not quite. There was a directions hearing on 8 February, as you know. Senator WATT: Sorry, yes, there was 8 February, but there was a critical date by which a decision had to be made to intervene. Mr Loughton: At that directions hearing Justice Bell made orders as to when things should happen, and one of the orders she made was: 'That any intervener in support of the plaintiffs, save for the Commonwealth, file and serve its submissions on or before 8 March'. Then there was a subsequent order, which said: 'The Commonwealth, if it intervenes, file and serve its annotated written submissions on or before 30 March.' So that was a court mandated timetable to which we were working. Senator WATT: Mr Loughton, in the run-up to 8 March, when those submissions were due, did you advise counsel that the Attorney-General had decided to not intervene in this matter? Mr Loughton: I believe I have given a response to that question already. Mr Kingston: And we will take that on notice. Senator WATT: Okay. I put it to you that, on around 4 March 2016, you informed counsel that the Attorney- General had decided, in consultation with the Western Australian Attorney-General, that no agency of the Commonwealth would intervene in this matter. Do you have anything to say to that? Mr Loughton: Again, I cannot disclose the contents of what has passed between counsel and me. Senator WATT: I put it to you— CHAIR: Sorry, you are not making that claim; you are in effect deferring that to your client, who is in this case the minister, to make that claim. Is that correct? Mr Loughton: Yes, Chair. Senator BACK: If I can make a point of clarification: we already have evidence that the Commissioner of Taxation, with no interference or intervention by the Attorney-General, had the capacity to and did comply with the 8 March 2016 deadline and challenged in the High Court. Is that correct? That is what you told me. Mr Anderson: That is correct. Senator BACK: Thank you. Sorry, Chair. Senator WATT: Mr Loughton, I put it to you that on 4 March 2016 you instructed counsel, despite what the Attorney-General had said, to keep preparing submissions, at least on the issue to do with tax, so that the ATO could leave open the option to intervene despite the Attorney-General's view. Senator BACK: We have evidence before the committee, Senator Watt, through you, Chair, to the effect that the Commissioner of Taxation need have had no involvement from the Attorney-General in making his decision to challenge, on a revenue basis, on behalf of the tax office in the High Court of Australia. Forget this nonsense about whether you think the Attorney-General did or did not do something. We have had evidence to the effect that the tax commissioner could act and did act independent of anybody in that process. That is the evidence we have. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 25 Senator WATT: Thank you, Senator Back. Mr Faulkner, in those days leading up to 8 March, did the Attorney-General contact you or did his office contact you about steps that could be taken to prevent the ATO from intervening in this matter? Mr Faulkner: The Attorney-General did not contact me. I did not discuss the matter with the Attorney- General. Senator WATT: Which matter have you not discussed with the Attorney-General? Mr Faulkner: I was not in communication with the Attorney-General around those times. Senator WATT: Were you in contact with his office? Mr Faulkner: I would have to take that question on notice. Senator WATT: Because you cannot remember or— Mr Faulkner: Would you mind repeating the question? Senator WATT: The question is whether you had contact with the Attorney-General's office in the days leading up to 8 March when submissions were due about steps that could be taken to prevent the ATO from intervening in this matter. Mr Faulkner: I would regard that, like many other aspects of the proceeding here, as going to the question of the way the Commonwealth is organising itself in its preparation for the case. So I feel that I need to take that on notice in order to allow the Attorney-General the opportunity to consider whether there are any public interest aspects of that that need to be considered. Senator BACK: I object— CHAIR: Senator Back, I will just advise you that Senator Ludlam has arrived and he is a member of this committee, and the committee is still quorate— Senator BACK: Senator Macdonald already left. CHAIR: Senator Macdonald left before I could advise him of this. He just left. Senator Ludlam is a member of the committee. Senator BACK: I object on behalf of the coalition senators. We had a hearing set for nine o'clock to 11 o'clock. With no reference to me, the hearing time was changed to eight o'clock to 10 o'clock. I inconvenienced myself to get here as a courtesy to the committee and to the witnesses. Senator HINCH: We will did. Senator BACK: Yes, I know. Exactly. It is now 10 o'clock. I think it is totally and utterly unruly of this committee to continue when coalition senators are not here. I have to leave to catch a plane. So please, Chair, bring the proceedings to a halt. Let the witnesses go. If there is the need for a further hearing at any other time, we will comply. In the meantime, I ask that you bring the proceedings to a conclusion. CHAIR: Are you moving that we— Senator BACK: I am. I am a voting member, thank you very much, for these purposes. I am replacing a coalition senator, so I can move that. CHAIR: I think the committee would like to resolve to continue for a few minutes more. Senator WATT: Senator Back, you would be familiar with the fact that while it is customary to have senators from both the major parties in attendance it is possible for the committee to continue with an absolute majority. Senator BACK: Senator Watt, let me tell you the way in which I have operated— CHAIR: I am chairing this inquiry. Senator BACK: If I make a comment to you, Chair, I—as Senator Ludlam and others will concur—have worked incredibly collaboratively over many years. So I am not making some point. I am saying to you: this will break that sense of collaboration that, to me, is critically important in the Senate committee hearing process. You do what you like, but I am just saying to you that I think it is very poor form, sorry. CHAIR: This committee has at a number of times managed its proceedings by absolute majority, and there is an absolute majority is— Senator BACK: That is your decision to make and you have made it. I thank the witnesses on my behalf and, I am sure, on behalf of Senator Macdonald. I think this is very, very poor. You can make that decision, but make it in the knowledge that I believe you are moving outside your rights. You might be within your legal rights to do this, but I believe it is a very poor decision. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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