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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. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 27 Mr Anderson: No. The Attorney has made a public interest claim in relation to any advice that he may or may not have been given by the department about those previous matters. Senator WATT: Can I just jump back to where we were? I accept that you have taken a number of questions on notice about whether you were requested to issue or draft a direction, and then whether the ATO contacted you seeking advice on whether they could seek advice about the legality of any proposed direction. Could you also take on notice any contact you had with the Attorney-General or his office about that request from the ATO—so not just whether it occurred, but contact that you had with the Attorney-General and his office? Mr Faulkner: Yes. Senator WATT: It is a fact, is it not, that after you advised the ATO that they could not seek legal advice about the legality of this direction that would have stopped them intervening, that on or around 6 March 2016 the ATO made a formal request to your department through the Office of Legal Services Coordination to be permitted to seek advice on the legality of the Attorney General's proposed direction. That is a fact, is it not? Mr Faulkner: Once again, I would need to take that question on notice on the same basis that I have outlined previously. Senator WATT: Could you also take on notice any contact you had with the Attorney-General or his office about that? Mr Faulkner: Yes. Senator WATT: I think you would be able to answer this one: how often were you in contact with the Attorney-General or his office in the days leading up to 8 March 2016? Mr Faulkner: I am afraid, literally, I do not know, other than to say that I was not in contact with the Attorney-General. So far as the office is concerned—and without wishing to sound evasive—as I am sure you could appreciate, dealing with litigation raises myriad trivial matters, and one is in contact for all kinds of things. So I really could not say. I am happy, of course, to take on notice the number of contacts there were with the Attorney's office if some dates can be specified. Senator WATT: Just to recap what Senator Pratt was asking you about the questions on notice: we have been advised in an answer to a question on notice from the Attorney-General—in fact, we clarified at the hearing on 7 December that the Attorney-General did not ask your department to draft a direction to prevent the ATO from intervening. Mr Addison, you said you were not asked by the Attorney— Mr Anderson: Okay. Senator WATT: You took on notice with his office made such a request and you have now said that you are not able to answer that question because it goes to legal advice. Mr Anderson: That is correct. Senator WATT: Okay. So you can understand that leaves open the inference that having closed off the Attorney there remains a question mark over the actions of the Attorney-General's office and who asked them to do that. Mr Anderson: I do not think I can add anything to the fact that we took that on notice, to seek the Attorney's view as to whether a claim was to be made, and the claim has now been made. Senator WATT: Okay, so the Attorney was not willing to tell this committee whether his office directed you to issue a direction, but he was happy enough to rule out the possibility that he personally made that request? Mr Anderson: Again, I do not think I can add anything further to the fact that the Attorney has made that claim in respect of the answer to that question. CHAIR: Okay, so the Attorney made that claim in answering that question? Mr Anderson: That is correct. We consulted the Attorney on those matters where we said we would need to consult the Attorney. Senator WATT: Mr Faulkner, there has obviously been a lot of correspondence over a series of months between the Western Australian Crown Solicitor or Solicitor-General and the Attorney-General's Department and AGS. Did your department at any point receive a letter from the Western Australian government expressing concern about the decision to intervene in this case? Mr Faulkner: I wonder whether a question of that sort has already been taken on notice? Would you mind repeating that question, I am sorry? LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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