SENATE

Friday, 17 February 2017 Senate Page 1
ANDERSON, Mr Iain, Deputy Secretary, Civil Justice and Corporate Group, Attorney-General's
Department
FAULKNER, Mr James, General Counsel (Constitutional), Attorney-General's Department
KINGSTON, Mr Michael, Australian Government Solicitor, Attorney-General's Department
LOUGHTON, Mr Gavin, Senior Executive Lawyer, Australian Government Solicitor, Attorney-General's
Department
Committee met at 8:01
CHAIR (Senator Pratt): I declare open this public hearing of the Senate Legal and Constitutional Affairs
References Committee inquiry into the nature and scope of any agreement reached by the Commonwealth and
Western Australian governments in relation to the distribution of proceeds of the liquidation of, and litigation
concerning, the Bell Group of companies. These are public proceedings being broadcast live via the web. The
committee has resolved to allow media to be present at this hearing. I remind members of the media not to film
any computer screen or documents of witnesses, the secretariat or the committee. If any witness has an objection
to being filmed, please let us know.
I welcome officers of the Attorney-General's Department. Information on parliamentary privilege and the
protection of witnesses and evidence has been provided to you.
I remind witnesses that the Senate has resolved that an officer of a department of the Commonwealth or of a
state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer
questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking
for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual
questions about how and when policies were adopted.
It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee,
and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading
evidence to the committee. The committee prefers evidence to be given in public, but, under the Senate's
resolutions, witnesses have the right to request to be heard in camera. It is important that witnesses give the
committee notice if they intend to ask to give evidence in camera. The committee may also determine that
proceedings take place in camera.
If a witness objects to answering a question, the witness should state the ground upon which the objection is
taken, and the committee will determine whether it will insist on an answer, having regard to the ground which is
claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in
camera. The committee has agreed that answers to questions taken on notice at today's hearing should be returned
by Friday, 3 March.
With those formalities over, I would like to welcome you all here this morning. Do any of you have an opening
statement?
Mr Anderson: I do have an opening statement. Thank you for the opportunity to make that.
CHAIR: Do you have a spare copy that you can distribute to the secretariat? Or just email—
Mr Anderson: I believe we do.
CHAIR: Thank you.
Mr Anderson: I appear today with Mr Michael Kingston, who commenced in his role as the Australian
Government Solicitor on 5 December 2016. Mr Gavin Loughton and Mr James Faulkner also appear in response
to the invitation from the committee. As the committee is aware, Mr Loughton was the AGS Senior Executive
Lawyer with primary carriage of the constitutional litigation in the High Court concerning the Bell Group. Mr
Faulkner was the primary legal advisor in the Attorney-General's Department with responsibility for instructing
the Australian Government Solicitor, as solicitor on the record, on behalf of the Attorney-General. The secretary
of the department has noted in his letter to the committee of 14 February that, to the extent Mr Loughton and Mr
Faulkner are asked questions about that work, they would need to refer such questions to the Attorney-General to
consider whether claims of public interest immunity should be made.
Since 1 July 2015, the AGS has been consolidated into the Attorney-General's Department. The secretary of
the department, Mr Moraitis, made an opening statement when he appeared before the committee on 7 December
2016, in which he outlined some of the general arrangements for dealing with constitutional litigation, but I think
it is helpful to repeat those. The secretary referred, in his statement, to the fact that section 78A of the Judiciary
LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE