SENATE

Page 28 Senate Friday, 17 February 2017
Senator WATT: As I have asked this, I am thinking it might actually be more appropriate to send to Mr
Loughton, because any correspondence would probably have gone to him as solicitor on the record. Did the
Western Australian Crown Solicitor or Solicitor-General write to the Australian Government Solicitor, expressing
concern about the decision to intervene in this matter?
Mr Loughton: I think the question asked me to provide information that I believe may properly be the subject
of a public interest immunity claim. In particular, I note in the Attorney's response to the Senate's order on 30
November for the production of documents that he has asserted public interest over all documents, 'The disclosure
of which would disrupt harmony between a state and the Commonwealth'. I believe it is a matter that we would
need to take on notice, to seek our client's views as to whether a similar claim would be made here.
Mr Kingston: We will take that question on notice.
Senator WATT: Okay. And if such correspondence did occur, that the Western Australian Crown Solicitor or
Solicitor-General expressed concern about intervening, did that correspondence make any reference to
intervening breaching some kind of agreement, or understanding or deal between the Western Australian and
Commonwealth governments about the payment of tax?
Mr Kingston: Again, we would take that on notice.
Senator WATT: Okay. I understand that after this all fell apart from the Attorney's point of view, and it
became clear that the ATO was going to intervene in this matter, despite his wishes, that the Attorney wrote to the
Assistant Treasurer, Ms O'Dwyer, complaining about the ATO's actions and saying, 'They will not be permitted to
seek the advice of the Solicitor-General if my actions are unlawful.' Mr Faulkner, are you aware of that
correspondence?
Mr Faulkner: No, I am not.
Senator WATT: Are you aware of any correspondence that the Attorney wrote to the Assistant Treasurer
once the decision had been made to intervene?
Mr Faulkner: I would have to take that on notice.
Senator WATT: Mr Anderson, are you aware?
Mr Anderson: I am not aware of any correspondence. As Mr Faulkner said, we will take that on notice.
Senator WATT: Okay. Again, I refer to documents we have obtained under FOI—I probably have two copies
of this. There is an email that was sent by counsel assisting the Solicitor-General, on 4 April 2016—there is a
redacted name, but it was sent to the Attorney-General's executive assistant—which refers to a meeting that
occurred that day. We understand from Senator Brandis's own statement to the Senate on 28 November last year
that a meeting occurred on 4 April 2016 among a number of people, including the Solicitor-General, Mr Gleeson,
and the Attorney-General. That meeting discussed the attempts the Solicitor-General had made to resolve these
issues with the Western Australian Solicitor-General. The Solicitor-General—this is all on the record; the
Attorney-General has said this—reported to the Attorney those discussions had not resolved the issues with the
Western Australian government. That meeting occurred on 4 April. The FOI documents include an email from
counsel assisting to the Attorney-General's executive assistant saying, 'Thank you'—whatever the person's name
is—'again for all of your help today. You did such a great job, with all of us speaking over the top of each other!'
Were you at that meeting, Mr Faulkner?
Mr Faulkner: I am not quite sure which meeting—
Senator WATT: It sounded like a pretty heated meeting, on 4 April, where the Solicitor-General reported
back to the Attorney-General as to his unsuccessful negotiations with the Western Australian Solicitor-General.
Mr Faulkner: I would need to check my records, I am afraid.
Senator WATT: Mr Loughton, were you at that meeting?
Mr Loughton: Again, that goes to something that I could not disclose without the consent of my client.
Senator WATT: Were you at a meeting with the Attorney-General on 4 April 2016? That is entirely
appropriate—
CHAIR: It is quite proper for you to answer the question.
Mr Kingston: This does go to something similar that was asked in the past where we were saying that our
interactions with our client in the context of providing legal advice—did we have a meeting with them and who
was at that meeting—we would regard as falling within the type of matters we would refer to our client to decide
if they wanted to make a claim or if they felt they were able to make a claim.
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