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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. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 29 Senator WATT: So you are saying that Senate committees cannot ask representatives of the AGS or the Attorney-General's Department whether they have met with their minister? Mr Kingston: No, I am by no means saying anything about what a Senate committee can ask. I am not even commenting on what be answered. I am simply saying that we wish to take the question on notice to consult with our client. Senator WATT: You really have to question the point of Senate committees if senators cannot ask senior public servants whether they have met with their minister. I am not asking you what was discussed— CHAIR: He is entitled to refer to the minister—whether he was at the meeting or not. I am saying that as absurd as it seemingly is. Mr Kingston: The distinction I am making is that we are not seeing ourselves merely as public servants, or solely, but as the lawyers acting—and that giving it a particular context. That is all I wanted to add. Senator WATT: Mr Anderson, were you at that meeting? Mr Anderson: I was not. Senator WATT: You were not at a meeting with the Attorney or the Solicitor-General on 4 April 2016? Mr Anderson: That is correct. Senator WATT: Mr Faulkner, in the time that has elapsed has your memory returned as to whether you were at that meeting on 4 April? Mr Faulkner: I may have been—put it that way. I would need to check my records. Senator WATT: Do you remember attending any meeting around that time, with the Attorney-General and the Solicitor-General, that became quite heated? Mr Faulkner: No. Senator WATT: All very civil? Mr Faulkner: I have never been in a meeting with the Solicitor-General and the Attorney-General—not that I have been in any that I can recall where there has been any heat. Senator WATT: No need for an exclamation mark at the end of the email then? Mr Faulkner: Not in my experience. Senator WATT: So you have not been at a meeting with the Attorney-General and the Solicitor-General where people were 'speaking over the top of each other!' Mr Faulkner: I certainly cannot remember such a meeting, no. Senator WATT: Perhaps different people have different interpretations of what heat is! Senator Hinch asked a few questions earlier, I think, about this. Mr Faulkner, Mr Anderson has previously told this committee that the Attorney-General's Department first became aware of the now infamous legal services direction that was issued by the Attorney-General to constrain the Solicitor-General—your department first became aware of that direction on 20 April 2016? Mr Anderson: That has been my evidence. Senator WATT: I think we have gone over that two or three times, Mr Anderson. Mr Faulkner, that is the evidence that Mr Anderson has given. Is that the case for you as well? You did not have any knowledge prior to 20 April about the potential for this broad direction? Mr Faulkner: I would need to take that on notice. I have not given that any thought at all. Senator WATT: Okay. From the conversations you were involved in, whether with his office or with the Attorney-General himself, how would you describe the Attorney-General's reaction to the tax office pursuing intervention in this case? Mr Faulkner: I could not possibly offer view on any discussions I have had with the Attorney-General. Senator WATT: Do you believe that there was any connection between the events surrounding the Bell litigation, the tax office intervening and the actions of the Solicitor-General in that the entire process? Do you believe there was any connection between any of that and the unprecedented direction issued to constrain the Solicitor-General? Mr Faulkner: I assume you do not expect me to answer that! Senator WATT: Do you have a view? Mr Faulkner: I could not possibly offer an opinion. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
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