SENATE

More documents

Recommendations

Info

Page 4 Senate Friday, 17 February 2017 completely separate constitutional issue arising in relation to that Western Australian litigation in about October or November. Senator WATT: So AGS Perth contacted you, and that arose out of the other litigation that they were involved in? Mr Loughton: Yes. Senator WATT: Did you have any contact with the Attorney-General's Department in Canberra at that point, in that October-November period? Mr Loughton: No. Senator WATT: When you first received instructions in December 2015, which agency did they come from? Mr Loughton: They were instructions on behalf of the Attorney-General's Department. Senator WATT: Mr Faulkner, when did you first become involved in this matter? Mr Faulkner: I think the time line would be very similar to the one that Mr Loughton just mentioned. The consideration of the possibility of a High Court proceeding really arose, or crystallised, I suppose, as a result of the direction things were taking in the Supreme Court litigation in Western Australia. Senator WATT: So that would have been around October or November 2015? Mr Faulkner: Yes. Of course, my role within the department, which is the head of the Office of Constitutional Law, means that we are essentially conscious of things, generally speaking, that may be of interest to the Commonwealth, constitutionally speaking. In a sense, I suppose the theoretical possibility of litigation is always there at the back of one's mind. One is conscious of the bill in the Western Australian parliament, of course. So it is a little bit artificial for me to draw hard and fast lines, but in terms of discussion about this particular proceeding, yes, the dates that Mr Loughton has given would seem pretty good for me too. Senator WATT: I think the Bell legislation was introduced into the Western Australian parliament on 6 May 2015. Mr Faulkner: That sounds right, yes. Senator WATT: You said that in the course of your role you become aware of possible constitutional matters and that kind of thing. Do you think it is likely that you might have at least heard about this legislation and that it might have constitutional implications as early as May 2015, potentially even earlier, in the run-up to that legislation being introduced? Mr Faulkner: I believe it emerged in evidence that has already been given that the department was consulted early in 2015 by Treasury about a proposal to deal with the Bell Group liquidation processes. At that point, it was raised with us in terms of possible corporations scheme issues. That is why it came to us. It was my office that dealt with that approach. That clearly gives rise to the possibility of constitutional issues in that sense. At that time, the point was that the questions appeared to be matters arising out of the administration of the corporations agreement, the scheme itself. The administration of that scheme is a matter for Treasury. We obviously have an interest in all federal arrangements and federal legislative schemes, including the corporations arrangement. So if one were being strict in the sense that I suspect you have in mind I would have to concede that I had thought about constitutional aspects of it as early as that time. But that may not be quite the sense that you are— Senator WATT: Yes, I am not suggesting that at that point you were actively considering a constitutional challenge. It is more that there is a period of time that evolves as people think about these things before you reach that point. So you think it is possible that you became aware of the constitutional issues raised by that Western Australian legislation, if not the potential need for intervention, as early as about April or May 2015? Mr Faulkner: No. Certainly there were constitutional aspects to this in the sense that I have just described, but I do not think it would be fair to say that I considered litigation at anything like that stage. Senator WATT: Sorry to harp on about this, but the time line on this is quite important. I absolutely understand the distinction between thinking in an abstract sense about constitutional issues and actively considering litigation, which comes later. Just sticking with the more abstract thinking about, 'That is an interesting bill; that might have some constitutional implications,' you think that could well have happened around the time of the introduction of that bill in the Western Australian parliament? Mr Faulkner: I hesitate because my office is aware of advice given by AGS to other agencies on what is constitutional, so I am aware of constitutional consideration having been given to this issue at a number of points. I am looking to be as accurate as I can and not to be misleading in any sense. Whether that was May, June or July I would not be in a position to say offhand. LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Friday, 17 February 2017 Senate Page 5 Senator WATT: But it was certainly before that October-November 2015 period when things became a bit more serious? Mr Faulkner: Yes. My office was aware that there were constitutional issues. Senator WATT: Mr Loughton, this might be best directed to you given it involves the Australian Government Solicitor. We have undertaken a number of FOI requests which I have to say have not yielded a lot of documents. We have established, though, that on 1 April 2015 the Western Australian State Solicitor wrote to the Australian Government Solicitor about this matter for the first time. Are you aware of that— Mr Loughton: That was April 2015? Senator WATT: Yes. Mr Loughton: No. As I said, my first involvement in the matter arose when litigation was imminent. That was later that year. Senator WATT: Mr Faulkner, do you know anything about that correspondence? Mr Faulkner: No. Senator WATT: Perhaps it went to the Perth office of the Australian Government Solicitor. We are not aware of the contents of that letter, so I do not know what it said. I do not know whether it flagged this possible legislation or what. But it does appear that that was the first time the Western Australian State Solicitor raised this issue with the Commonwealth legislative agencies and litigation agencies. I have also seen the date 7 July 2015 for when the Australian Government Solicitor wrote to the Western Australians State Solicitor. Again, I do not think we have the contents of that correspondence. Do either of you have any knowledge of that correspondence? Mr Loughton: No. Mr Faulkner: No, I would not really expect to have knowledge of the day-to-day communications between even Mr Loughton's area and CLU, which is clearly very constitutional. No, I am not aware of that. Senator WATT: I appreciate you will probably need to take this on notice, but could I request copies of both of those items of correspondence? Mr Loughton, I think you said that you first became aware of the possibility of a constitutional challenge in October-November 2015 and that you first received instructions in December 2015. Is that correct? Mr Loughton: Yes. Senator WATT: And you received those instructions from the Attorney-General's Department? Mr Loughton: Yes. Senator WATT: Was there a particular officer? Mr Loughton: From Mr Faulkner. Senator WATT: And Mr Faulkner, you began dealing with Mr Loughton or his officers about the possibility of litigation around October-November 2015? Mr Faulkner: No, I do not believe so. I hesitate simply because this is quite a while ago and we deal with an awful lot of constitutional litigation, and the individuals are common to many of those matters. I could not say with any confidence precisely who I talked to and when in those terms but, broadly, I would say that this particular proceeding commenced, as you know, in very late November. I think it was 26 or 27 November that the proceeding was instituted and 78B notices were, I believe, issued on 1 December. Generally speaking, though there are sometimes exceptions, the 78B notice is the trigger for issuing instructions in relation to the possibility of the Attorney's intervention under 78A of the Judiciary Act. My recollection is that my instructions probably would have been given around 1 December in relation to this matter. Senator WATT: So you gave instructions to Mr Loughton around 1 December— Mr Faulkner: That would be right. Senator WATT: around the time of the notice of constitutional matter being filed. Mr Faulkner: That is right. I recall we got together to talk about it—as we usually do where it looks to be an interesting matter, fairly shortly after the 78B notice arrives. Senator WATT: When you say 'we' got together, do you remember who was part of that meeting? Mr Faulkner: No, I could not say that just offhand. Senator WATT: Could you take that on notice, please? LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE
Page 1 and 2: COMMONWEALTH OF AUSTRALIA Proof Com
Page 3 and 4: SENATE LEGAL AND CONSTITUTIONAL AFF
Page 5 and 6: Friday, 17 February 2017 Senate Pag
Page 7: Friday, 17 February 2017 Senate Pag

SENATE

Create successful ePaper yourself

Delete template?

Save as template?