Chapter 1 - Background
[1]
Journals of the Senate, No. 22, 29 November 2016, pp. 664–665.
Note:
Senator Cormann made himself available to attend public hearings for this
inquiry. However, the Senator was unable to attend at the time he was initially
invited to a hearing. Although the Senator subsequently made himself available
to attend a hearing at another time, the committee decided not invite him again
to give evidence. Ultimately, the Senator did not provide any evidence to the
committee, and the inquiry findings have been made on the basis of evidence
heard from other witnesses.
[2]
Statement to the Senate by Senator George Brandis, Attorney-General, Senate
Proof Statements, 28 November 2016, p. 21.
[3]
West Australian Assembly Hansard, 6 May 2015, p. 3167.
[4]
Senate Hansard, 28 November 2016, pp.3323–3329.
[5]
The committee's website can be found at www.aph.gov.au/Parliamentary_Business/
Committees/Senate/Legal_and_Constitutional_Affairs
Chapter 2 - Key issues
[1]
The Hon Dr Mike Nahan MLC, Treasurer of Western Australia, Western
Australian Assembly Hansard, 6 May 2015, p. 3167.
[2]
Western Australian Assembly Hansard, 26 November 2016, p. 9112.
[3]
Dr Nahan, Second
Reading Speech, Western Australian Assembly Hansard, 24 March 2016, p. 1932.
[4] Bell
Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015
(WA).
[5] High Court,
Short Particulars Case S248/2015, p. 1.
Sections 5G and 5F of the
Corporations Act allows State or Territory legislation to override the
Corporations Act where the State or Territory law declares the matter it
addresses is a matter that should be excluded from the Corporations Act, and
there is direct inconsistency between the laws, so they cannot operate concurrently.
Section 109 of the
Constitution addresses inconsistency between state and federal legislation and
declares that valid federal laws prevail over inconsistent State laws, to the
extent that they are inconsistent.
[6]
Mr Andrew Mills, Second Commissioner, Australian Taxation Office (ATO), Committee
Hansard, 7 December 2016, p. 10.
[7] Bell
Group N.V. (in liquidation) v Western Australia; W.A. Glendinning &
Associates Pty Ltd v Western Australia; Maranoa Transport Pty Ltd (in liq) v Western
Australia [2016] HCA 21 (16 May 2016).
[8]
Bell Group N.V. (in liquidation) v Western Australia; W.A.
Glendinning & Associates Pty Ltd v Western Australia; Maranoa Transport Pty
Ltd (in liq) v Western Australia [2016] HCA 21 [54].
[9] Mr Iain
Anderson, Deputy Secretary, Attorney-General's Department (AGD), Committee
Hansard, 17 February 2017, p. 20.
[10]
Senator the Hon George Brandis QC, Attorney-General of Australia, Senate
Hansard No. 6, 2016, 28 November 2016, p. 3326.
[11]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p. 3326.
[12]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p. 3326.
[13]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p. 3327.
[14]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p.
3327.
[15] Mr Anderson,
AGD, Committee Hansard, 17 February 2017, p. 10.
[16]
Mr Anderson, AGD, Committee Hansard, 17 February 2017, p. 10.
[17]
Mr Anderson, AGD, Committee Hansard, 7 December 2016, p. 43.
[18] Mr Anderson,
AGD, Committee Hansard, 7 December 2016, p. 43.
[19] Mr Chris Moraitis, Secretary, AGD, Committee
Hansard, 7 December 2016, p. 44.
[20] Mr Moraitis,
AGD, Committee Hansard, 7 December 2016, p. 52.
[21]
Senator Murray Watt, Committee Hansard, 8 March 2017, p. 18.
[22]
Senator Brandis, Committee Hansard, 8 March 2017, p. 18.
[23]
Mr Mills, ATO, email correspondence to Mr Chris Jordan, Commissioner of
Taxation, ATO, 29 November 2016.
[24]
The Hon Dr Mike Nahan, Treasurer of Western Australia to the Hon Mr Joe
Hockey MP, Treasurer, Letter of 29 April 2016, p. 2.
[25]
The Hon Dr Mike Nahan, Treasurer of Western Australia to the Hon Mr Joe
Hockey MP, Treasurer, Letter of 29 April 2016, p. 2.
[26]
The Hon Mr Joe Hockey MP, Treasurer of Australia, to The Hon Dr Mike
Nahan, Treasurer of Western Australia, Letter of 29 April 2016, p.1.
[27]
Mr Hockey MP, to The Hon Dr Mike Nahan, Treasurer of Western Australia,
Letter 29 April 2016, p.1.
[28]
West Australian
Assembly Hansard,
25 November 2015, p. 8965.
[29]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p. 3325.
[30]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p. 3325.
[31]
Shane Wright, 'George Brandis denies misleading Senate about phone call
with WA Attorney-General', The West Australian, 1 March 2017, https://thewest.com.au/politics/federal-politics/george-brandis-denies-misleading-senate-about-phonecall-with-wa-attorney-general-ng-b88401444z
(accessed 14 March 2017).
[32]
Senator Brandis, Senate Legal and Constitutional Affairs Legislation
Committee, Senate Estimates Hansard, 28 February 2017, p. 105.
[33]
Senator Brandis, Senate Legal and Constitutional Affairs Legislation
Committee, Senate Estimates Hansard, 28 February 2017, p. 115.
[34]
See, for example, Senator Brandis, Senate Legal and Constitutional Affairs
Legislation Committee, Senate Estimates Hansard, 28 February 2017, pp. 105,
111, 113, 114, 115, 120, 122.
[35] Senate Legal
and Constitutional Affairs References Committee, Nature and scope of the
consultations prior to the making of the Legal Services Amendment
(Solicitor-General Opinions) Direction 2016, 8 November 2016, p. 12.
[36]
Senator Brandis, Senate Legal and Constitutional Affairs Legislation
Committee, Senate Estimates Hansard, 28 February 2017, p. 115.
[37]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p. 3328.
[38]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p.
3328.
[39]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p.
3328.
[40]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p.
3326.
[41]
Senator Brandis, Senate Hansard No. 6, 2016, 28 November 2016, p. 3326.
[42]
West Australian
Assembly Hansard,
25 November 2015, p. 8965.
[43]
Senator Brandis, Committee Hansard, 8 March 2017, p. 22.
[44] Ms Diane Brown,
Chief Adviser, Financial Systems Division, Treasury, Committee Hansard, 7 December
2016, p. 25.
[45]
Mr Thomas Reid, Division Head, Law Design Practice Division, Treasury, Committee
Hansard, 7 December 2016, p. 35.
[46]
The Treasury, Answers to Questions on Notice from Public Hearing 7
December 2016 (received 13 January 2017), p. 3.
[47]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 1.
[48]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 2.
[49]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 13.
[50]
Mr Mills, ATO, Committee Hansard, 7 December 2017, p. 2.
[51]
Mr Mills, ATO, Committee Hansard, 7 December 2017, p. 2.
[52]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 2.
[53]
ATO, Answers to Questions on Notice from Public Hearing 7 December 2016
(received 22 December 2016), p. 7.
[54]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 7.
[55]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 8.
[56]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 11.
[57]
Mr Mills, ATO, Committee Hansard, 7 December 2016, p. 10.
[58]
Mr Anderson, AGD, Committee Hansard, 7 December 2017, p. 39.
[59]
Mr Moriatis, AGD, Committee Hansard, 7 December 2017, p. 38.
[60] Mr Anderson,
AGD, Committee Hansard, 7 December 2017, p. 41.
The Australian Government can
become involved in constitutional litigation as a party in its own right, or
the Commonwealth Attorney-General can intervene on behalf of the Australian Government
in cases raising constitutional issues. The Judiciary Act 1903 (Cth)
requires parties in these cases to give the Attorney-General notice of the
constitutional issues under section 78B of the Act.
Australian Government
Solicitor, Constitutional Litigation, http://www.ags.gov.au/areasoflaw/case-studies/constitutional-litigation.html
(accessed 14 March 2017).
[61] Mr Anderson,
AGD, Committee Hansard, 7 December 2016, p. 40.
[62] Mr Anderson,
AGD, Committee Hansard, 7 December 2016, p. 43.
[63]
AGD, Answers to Questions on Notice from Public Hearing 7 December 2016
(received 16 February 2017), p. 9.
[64]
Mr Mills, ATO, Committee Hansard, 8 March 2017, p. 19.
[65]
Senator Brandis, Committee Hansard, 8 March 2017, p. 11.
[66]
Appendix 1.
[67]
Senator Louise Pratt, Chair, Senate Legal and Constitutional Affairs
References Committee, Committee Hansard, 8 March 2017, p. 15.
[68]
Senator Brandis, Committee Hansard, 8 March 2017, p. 15.
[69]
Senator Brandis, Committee Hansard, 8 March 2017, p. 4.
[70]
Senator Pratt, Committee Hansard, 8 March 2017, p. 2.
[71]
Senator Brandis, Committee Hansard, 8 March 2017, p. 3.
[72]
AGD, Answers to Questions on Notice from Public Hearing 7 December 2016
(received 16 February 2017), p. 1.
[73]
Mr Richard Pye, Acting Clerk of the Senate, correspondence to the Chair of
the Senate Legal and Constitutional Affairs References Committee, Senator
Louise Pratt, 3 March 2017, p. 3.
[74]
Harry Evans and Rosemary Laing, eds, Odgers' Australian Senate Practice,
14th Edition, Department of the Senate, 2016, pp. 668–669.
[75]
Mr Richard Pye, Acting Clerk of the Senate, correspondence to the Chair of
the Senate Legal and Constitutional Affairs References Committee, Senator
Louise Pratt, 3 March 2017, p. 3.
[76]
Council Assisting the Solicitor-General, email correspondence to Mr James
Lambie and Mr Joshua Faulks, Advisors to the Attorney-General, 15 March 2015; Executive
Assistant and Office Manager, email correspondence to Council Assisting the
Solicitor-General, 4 April 2016.
[77]
The document also contains the words 'SEC=PROTECTED, DLM=Sensitive: Legal]'.
[78]
The document also contains the words '[DLM=Sensitive: Legal]'.
Interim Dissenting Report from Government Senators
[1]
Mr Mills, ATO, Committee
Hansard, 7 December 2016, p. 2.