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Question From/To
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Reference
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1
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Watt/ Faulkner
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When you say 'we' got together, do you remember
who was part of that meeting? And if there were any meeting notes taken,
could I please request a copy of those? (Committee Hansard 17/2/17, pp. 5–6)
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2
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Back/ Anderson
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You may not know, but I wonder if you could take
on notice, and if you could advise the committee, how much of anything did
the Commonwealth of Australia contribute to those costs of litigation?
(Committee Hansard 17/2/17, p. 8)
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3
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Watt/ Faulkner
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Sure. My question to you is simply whether you
were aware of that request having been made by the Attorney-General's office.
(Committee Hansard 17/2/17, p. 12)
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4
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Watt/ Faulkner
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My question to you is, to put it specifically: did
you have any contact with the Attorney-General's department
sorry—office—around
the time of early June 2015 when they first sought this briefing from the
Assistant Treasurer? (Committee Hansard 17/2/17, p. 12)
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5
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Watt/ Faulkner
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And I think you have said, perhaps in answer to
Senator Back, that, when this particular notice of a constitutional matter
was served, there was no contact with the Attorney-General on that day or in
the following days. You do not generally get the Attorney-General involved at
that immediate stage? (Committee Hansard 17/2/17, p. 13)
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6
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Watt/ Kingston
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So my real question here is whether that contact
with the Solicitor-General was made with the knowledge of the
Attorney-General or his office. (Committee Hansard 27/2/17, p. 13)
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7
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Watt/ Kingston
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Could you take that on notice, whether there was
earlier written advice in any form to the Attorney-General's office which
flagged the potential for intervention in this litigation? (Committee
Hansard 27/2/17, p. 14)
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8
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Watt/ Faulkner
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My point is: when did the department first raise
with the Attorney-General's office the possibility for intervention in this
case? (Committee Hansard 27/2/17, p. 15)
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9
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Watt/ Loughton
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I think it would be inappropriate for me to
discuss any aspect of confidential legal work that we were doing for our
clients at that time. (Committee Hansard 27/2/17, p. 15)
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10
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Watt/ Faulkner
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There was a great deal of interaction with the
office after providing this submission. As I have said before, I know there
were different issues as to whether the ATO would intervene on certain points
and whether the Commonwealth would intervene on certain points. Was the
potential for intervention on both of those issues flagged with the office at
that point? (Committee Hansard 27/2/17, p. 15)
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11
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Watt/ Loughton
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Mr Loughton, in early 2016, did you become aware
of any contact between the Commonwealth Attorney-General and his Western
Australian counterpart around the issue of intervention in this case?
(Committee Hansard 27/2/17, p. 16)
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12
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Watt/ Loughton
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It is a fact, is it not, that on 5 February 2016
you sent an email to junior counsel and to Mr Faulkner advising them that the
Attorney-General was in discussions with the Western Australian counterpart
about whether the Commonwealth should intervene in this matter? (Committee
Hansard 27/2/17, p. 17)
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13
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Watt/ Kingston
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Just to be very clear, can you take on notice a
request from me for a copy of any email correspondence between Mr Loughton,
counsel in this matter and Mr Faulkner regarding any discussions the
Commonwealth Attorney-General had had around 5 February 2016 about not
intervening in this litigation at the request of the West Australian
government. (Committee Hansard 27/2/17, p. 18)
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14
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MacDonald/ Faulkner
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Are you aware in this case if the commissioner has
sought any sort of costs order in the actions that have proceeded so far?
(Committee Hansard 27/2/17, p. 20)
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15
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Watt/ Faulkner
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Did you have any contact with the
Attorney-General's office prior to 8 February about ensuring the Commonwealth
was represented? (Committee Hansard 27/2/17, p. 2)
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16
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Watt/ Faulkner
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I am just thinking really hard about that
particular appearance. This is a question to both Mr Loughton and Mr
Faulkner. Did Mr Lambie or anyone else from the Attorney-General's office
instruct you or request that you appear for the Commonwealth, on that
occasion? (Committee Hansard 27/2/17, p. 22)
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17
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Watt/ Faulkner
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You are taking on notice whether there was any
contact with Mr Lambie or the Attorney's office and whether instructions were
provided to appear or a request was made to appear. Similarly, do you recall
or does Mr Loughton recall whether the Attorney-General requested that the
Commonwealth be represented on that occasion? (Committee Hansard 27/2/17, p.
22)
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18
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Watt/ Faulkner
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I would also like to know how many times there was
contact and what form that occurred in. Was it verbally, through meetings,
written? (Committee Hansard 27/2/17, p. 22)
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19
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Watt/ Faulkner
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The Attorney-General has told parliament that his
first personal involvement, whatever that means, in this matter was on 3
March 2016. Mr Loughton, did you have any contact with the Attorney-General,
or are you aware of any contact with the Attorney-General himself, about this
matter prior to 3 March 2016? (Committee Hansard 27/2/17, p. 23)
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20
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Watt/ Kingston
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The Attorney-General has also said that he was not
convinced at an early stage that the Commonwealth needed to intervene
separately to the ATO. When were you first made aware that the
Attorney-General was not convinced of the need for separate Commonwealth
intervention? Again, I am happy for you to take that on notice if that is
your wish. (Committee Hansard 27/2/17, p. 24)
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21
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Watt/ Kingston
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Mr Loughton, in the run-up to 8 March, when those
submissions were due, did you advise counsel that the Attorney-General had
decided to not intervene in this matter? (Committee Hansard 27/2/17, p. 24)
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22
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Watt/ Faulkner
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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? (Committee Hansard 27/2/17, p. 26)
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23
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Watt/ Faulkner
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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?
(Committee Hansard 27/2/17, p. 26)
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24
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Watt/ Faulkner
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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 (Committee Hansard 27/2/17, p. 27)
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25
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Watt/ Faulkner
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Could you also take on notice any contact you had
with the Attorney-General or his office about that?(Committee Hansard
27/2/17, p. 27)
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26
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Watt/ Kingston
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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? (Committee Hansard 27/2/17, p. 28)
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27
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Watt/ Kingston
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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?
(Committee Hansard 27/2/17, p. 28)
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28
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Watt/ Faulkner
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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? (Committee Hansard 27/2/17, p. 28)
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29
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Watt/ Faulkner
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Were you at that meeting, Mr Faulkner?
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. (Committee Hansard 27/2/17, p.
28)
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30
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Watt/ Faulkner
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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? (Committee Hansard
27/2/17, p. 29)
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31
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Pratt/Brandis
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CHAIR: That does not specify the harm to the
public interest, because as has been outlined to you, the disclosure of legal
advice in and of itself is not a grounds accepted by the Senate for a public
interest immunity claim.
Senator Brandis: The person who has made this
claim has referred to the longstanding precedent of successive Australian
governments. This is an absolutely commonplace ground on which public
interest immunity is claimed. If you would like me to elaborate upon the
ground of the claim then I will reflect upon the matter. I myself think that,
particularly given the notoriety and uncontroversial nature of the public
interest immunity claimed, there is no need to do so, but if you want me to
reflect further, I will take the matter on notice. (Committee Hansard 8/3/17,
p. 3)
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32
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Pratt/Brandis
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CHAIR: The test relates to
the specific harm to the public interest in relation to the specific claim
made, which means the claim needs to relate not to a general harm to the
Commonwealth's interests in the disclosure of legal advice but a specific
harm in relation to this matter.
Senator Brandis: I
have heard what had to say and, as I said, I will take that issue and the
questions relating to it on notice and if on reflection it seems appropriate
to expand on the grounds in order to satisfy the Senate's view I will do so.
But may I also remind you, with respect and with great respect to the Senate,
of which I am a member, that the Senate is not the only organ of the
Constitution. (Committee Hansard 8/3/17, p. 13)
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33
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McKim/Brandis
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Senator McKIM: Attorney, I understand you have
been provided with a sheath of documents. I just want to make sure we have
the same stack of papers in front of us. Is it right that you have been
provided with a sheath of papers that, on its first page, contains questions
that I was asking of Mr Moraitis, and my first Hansard reference is me
saying, 'Thanks, I just wanted to be clear about that.'
Senator Brandis: Yes, I have that...
Senator McKIM: Thank you. In that case will you
take on notice whether or not you are making a public interest immunity claim
in regard to that question on the first page that I asked?
Senator Brandis: Well, I am.
(Committee Hansard 8/3/17, pp. 13–14)
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34
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McKim/Brandis
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Senator McKIM: Will you take on notice the same
manner that I just asked you—that is: will you provide the committee with the
specific public harm on which your claim of public interest immunity—
Senator Brandis: As with all the other questions
that Senator Pratt has raised with me, I will consider whether it is
appropriate to expand the statement of the public interest immunity claim. I
do not for a moment concede that it is insufficient on its face, but in view
of what has been put to me by Senator Pratt and by you I will consider it.
Senator McKIM: Thank you. To shorten proceedings,
can I ask you to confirm that you will give the same consideration to all of
the refusals by your department to answer questions, based on their claim
that it is the long-standing practice of successive Australian governments
that it is against the public interest to disclose—
Senator Brandis: I have been given a bundle of
questions on notice. Very quickly, there are 15 of them.
Senator McKIM: Yes—
Senator Brandis: And several of them invoke the
public interest immunity claim. In respect of the several questions in the
bundle of 15 questions I have been handed I will do so, yes. (Committee
Hansard 8/3/17, p. 14)
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35
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Watt/Brandis
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Senator WATT: My question to you is whether
written instructions were provided by you or your office to government
lawyers prior to that appearance on 8 February.
Senator Brandis: Prior to the directions hearing?
Senator WATT: Prior to the directions hearing.
Senator Brandis: Well, I will take on notice
whether written instructions were provided by my office. I do not know the
answer to that question. It is not impossible that there might have been an
email, so that would be a written instruction, I suppose. I do not know, so I
will take that on notice. As for me personally, no. (Committee Hansard
8/3/17, p. 17)
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36
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Watt/Brandis
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Senator WATT: In the days leading up to 8 March,
the deadline for intervention, did you or your office become aware of a
formal request by the ATO to your department to seek advice on the legality
of a direction preventing them from intervening in this matter?
Senator Brandis: I do not recall that, but I will
take it on notice. (Committee Hansard 8/3/17, p. 19)
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37
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Pratt/Brandis
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CHAIR: There were some 30 questions taken on
notice that the department did not answer on 17 February, so the committee is
asking if you can provide the answers from the department or, alternatively—
Senator Brandis: I am sure that can be done.
CHAIR: specify the harm to the public interest
that would arise from answering the questions.
Senator Brandis: I will ensure that the questions
are answered, and those answers, of course, may include any appropriate
claims of immunity. (Committee Hansard 8/3/17, pp. 23–24)
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