SENATE

Page 26 Senate Friday, 17 February 2017
CHAIR: Thank you, Senator Back. Hopefully we will not be too much longer. Senator Watt, you may
continue.
Senator WATT: Just resuming from where we were—
CHAIR: Mr Anderson, I do appreciate that you are waiting to appear at another hearing. You are free to go.
You are also free to stay, depending on your conflicting priorities. We will hopefully only be a few more minutes.
Mr Anderson: If it is only a few more minutes, I will stay.
Senator WATT: Mr Faulkner, I do not think I have asked the question this way. Did the Attorney-General or
his office at any point in the lead-up to 8 March express concern to you about reports or information that
Commonwealth agencies such as the ATO were considering intervening of their own accord?
Mr Faulkner: I feel I would need to take that on notice because you are effectively asking me to talk about
our consideration, the Commonwealth consideration, broadly of these proceedings. Without wanting to give an
indication one way or the other about the correctness of what you have just put, I would need to take that on
notice.
Senator WATT: Okay. It is a fact, is it not, that on around 4 March the Attorney-General or his office asked
you to draft a legal services direction that would prevent the ATO from intervening of its own accord?
Mr Faulkner: I would need to take that question on notice.
Senator WATT: So you cannot rule that out?
Mr Faulkner: I do not wish to give an indication one way or the other.
Senator WATT: And it is a fact, is it not, that on or around 5 March 2016 the ATO learned of this proposed
direction that would prevent them from intervening in this matter and they contacted you to seek advice as to
whether that sort of direction would be lawful?
Mr Faulkner: Once again, I would need to take that question on notice on the same basis.
Senator WATT: It is a fact, is it not, that when you received that request on or around 5 March 2016 you
advised the ATO that they could not seek advice as to whether the direction was lawful?
Mr Faulkner: Once again, I am afraid I would need to take that question on notice on the same basis.
CHAIR: Mr Anderson, while you are still with us, you have taken a number of things on notice because they
go to the nature of advice. But the ATO made its decision to intervene; on what date was that decision made?
Mr Faulkner: I might be able to answer that. I believe it was the day on which submissions were filed, which
was the 30th. I am very confident that is correct. That is when we were advised of that decision.
CHAIR: Senator Watt asked at our hearing on 7 December 2016 whether the department had been asked to
draft a direction that the ATO should not intervene. Mr Anderson, you said:
Not by the Attorney.
Senator Watt asked:
Not by his office?
You took that on notice. Did anyone else? Senator Watt asked:
… the Attorney did not ask you to draft a formal direction that the ATO should not intervene.
You said:
I do not believe so.
You said that you would take that on notice, and you advised that it goes to the content of legal advice and that it
is a longstanding practice not to—you have essentially made a public interest immunity claim on his behalf, in
that regard.
Mr Anderson: The Attorney has made that claim.
CHAIR: The question is why you have been happy to tell us that he made a decision to intervene, but not
happy to tell us whether there was an earlier decision not to intervene?
Mr Anderson: I think the Attorney himself has said, either in evidence at the estimates recall day on 12
December 2016 or in his statement to the Senate, that he was initially of the view that the Commonwealth should
not intervene.
CHAIR: He has made that statement, that he made earlier decisions not to intervene, but you have not given
us any of the background information behind those discussions.
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