Thursday, 30 March 2017
Can I just clarify so there is no confusion, a motion was passed by the Senate in the name Senator Pratt earlier in the week requiring me to be present in the Senate at 9.30 this morning so that 'a senator may ask the Attorney-General for an explanation of certain matters concerning the Bell issue'. No question was asked of me, so we are moving on.
Order! Can senators come to order so that we can deal with this matter efficiently? Last time when this approach was adopted it was agreed between the parties that the Attorney-General would be called upon by the President. I have done that. I called upon the Attorney-General, and now there seems to be some confusion as to the practice. If a senator wishes to stand and move a motion in relation to this, we can do it that way or I can simply call the Attorney-General.
Senator Brandis interjecting—
Correct. Senator Pratt, do you wish to move a motion?
I do. In accordance with motion No. 274 of 28 March, I seek an explanation from the Attorney-General on the matters outlined in that motion in relation to 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; the proceeds; and his failure to provide answers to questions to the committee and a valid public interest immunity claim.
I am going to raise a point of order. Senator Pratt cannot move that motion without leave and she has not sought leave. There was a motion agreed to by the Senate earlier in the week which, relevantly provided by paragraph 4:
… The Senate requires that the Attorney-General be in the Senate at 9.30 am on Thursday 30 March 2017, so that a senator may ask the Attorney-General for an explanation in connection with his actions on this matter, and at the conclusion of the explanation any senator may move a motion to take note of explanation; or if the Attorney-General fails to provide an explanation any senator may move to take note of his failure to do so.
That is the operative part of the resolution. I was here at 9.30 and no opposition senator asked me a question. I am in a position to respond to any questions that may be asked of me. Senator Pratt has now raised an issue. I have not been asked a question.
If there appears to be a misunderstanding about this, I can ask a series of questions in accordance with the resolution, if that is allowed by the resolution that the Senate passed.
I have some questions before me. The Attorney-General has specifically refused to allow answers as to whether his office prepared a direction under the Judiciary Act, which would have prevented the Australian tax office from intervening in the Bell matter. Will the Attorney-General give us that answer now?
I just have a point of clarification, given we seem to have such difficulty in getting cooperation on this matter.
Senator Brandis interjecting—
If I may, I just want to be clear that the motion that has been agreed by the Senate will enable a question to be asked and an answer to be given, and then another question to be asked and another answer to be given. Because, if not—I do not want a point of order taken subsequently. I would like the senator to have the opportunity to put all of her questions, at this stage, on the record so that we do not have another jig to avoid having to answer.
Thank you. If I could maybe assist: the motion is that a senator may ask for an explanation in relation to all matters in relation to the subject material. I will take it that that question has been asked of the Attorney-General. At the conclusion of the Attorney-General's response, a motion may be moved to take note of that answer.
With respect, President, I do not believe that that is the most efficient way to deal with this. I would request that we should have a set of questions put on the record—if you would prefer to deal with them as a block as opposed to in sequence.
The Leader of the Government in the Senate is saying he has no objection to a series of questions being asked. Do you want them asked all at once or are you happy to have question and answer?
All I want to do is comply with the requirement in paragraph (4) of the Senate's resolution. That requires me to be present here:
… so that a senator may ask the Attorney-General for an explanation in connection with his actions on this matter—
and so on. If Senator Pratt or any other senator wants to ask me a question then I am here to answer it. I do not have any particular objection as to whether it might be a more efficient of dealing with the matter for the questions all to be put so that they can be answered at once. I am merely seeking to comply with the terms of the Senate's resolution and the suggestion otherwise that I am seeking not to do is unfair and false.
I will read the wording of the resolution. The key point is on page 18 of the today's Notice Paperat paragraph (4), and a portion of it states:
…so that a senator—
so I take that to be singular—
may ask the Attorney-General for an explanation in connection with his actions on this matter …
So, really, Senator Pratt, I think what we should entertain is you asking the Attorney-General for an explanation of this matter and then the Attorney-General shall respond, and then a senator may move a motion to take note of that response. Senator Hinch, on the same matter?
With regard to the 'a senator', other members of that committee want to ask the Attorney-General questions as well. So there is 'a senator' Senator Pratt and 'a senator' Senator McKim and 'a senator' Senator Hinch.
No, it is not in those terms. I will take a question from a senator, otherwise we could have 75 other questions. Senator Pratt, you are seeking an explanation. If you would like to make your question as comprehensive as you wish, but I will entertain the one question, and make it as comprehensive as you wish. Senator Wong.
Given that and given the crossbench's desire to ask questions, I would indicate that the opposition would give leave, should the rest of the Senate do so, for Senator Hinch or other crossbench members to also put a question to the Attorney-General.
I seek an explanation from the Attorney-General on the following matters. The Attorney-General has specifically refused to allow answers as to whether his office prepared a direction under the Judiciary Act, which would have prevented the Australian tax office from intervening in the Bell matter. Will the Attorney-General give us that answer now? Secondly, does the Attorney-General believe that he is above the rules of the Senate which specify legal privilege is not on its own a basis for refusing to answer questions in a Senate committee? Why has the Attorney-General not complied with the Senate's request to provide a legitimate basis for a public interest immunity claim? I note that in his response to the Senate tabled on 23 March, the Attorney-General stated:
Thus, whether or not the Senate has accepted that matters pertaining to confidential legal advice to government are always and in all circumstances immune from disclosure is neither here nor there. The fact is that, in general, such matters are not disclosed.
Can the Attorney-General explain to the Senate why he believes that what the Senate accepts or asks for is 'neither here nor there'? The report tabled yesterday by the Legal and Constitutional Affairs References Committee required that the Attorney-General provide to the committee a statement of the grounds for concluding that it would not be in the public interest to disclose the information specifying the harm to the public interest that would result from the disclosure of the information of the documents. Will the Attorney-General comply with the committee's requirement?
On what basis does the Attorney-General believe that there would be a harm to the administration of justice, given that the litigation has now ended and there is no risk of compromising that litigation? The Attorney-General would be aware of evidence given before the committee on Monday, 27 March, that the Australian tax office was so worried that the Attorney-General was about to issue a direction that they sought legal advice and made the tax commissioner, Chris Jordan, aware of those plans. Why didn't the Attorney-General's office disabuse them of this notion if he had no such plans? Why did the Attorney-General say to Andrew Mills on 7 March that he was not going to issue a direction unprompted? That would suggest the Attorney-General was actually considering doing so. Will the Attorney-General now tell the truth? Was he planning to issue a direction to stop the tax office from intervening?
I made a note of what Senator Pratt has asked. In answer to question No. 1: that matter has been dealt with on several occasions. I might remind the Senate that this issue has been the subject of questions at estimates, at a spillover estimates day and at the Senate references committee. On each occasion, the response has been that this question goes to legal advice and, therefore, consistent with the uniform practice of all Australian governments, it will not be provided for that reason on the ground of public interest immunity.
On question No. 2: no, Senator Pratt. I believe that I am obliged to comply with the same constitutional convention that every Australian Attorney-General and, indeed, minister has complied with in relation to protecting legal advice provided to the Commonwealth.
In relation to question No. 3, contrary to what is asserted in the question, a public interest immunity claim was fully articulated in response to the questions, and I table a copy of the public interest immunity claim as articulated. The requirement of Odgers', which is one point of view about this, and not the only point of view, is that a public interest immunity claim be fully articulated. It has been, and the document I have tabled you have seen before because it is in the form of the answers provided in articulating the public interest immunity claim.
In response to your fourth question, Senator Pratt, it is not a question of whether orders of the Senate were neither here nor there. The question is what my obligations are, as a minister and as an Attorney, to protect the position of the Commonwealth in relation to its legal advice, and that is explained and set out in the answers that were given, which are embodied in the document I have just tabled.
In answer to your fifth question, the requirement to provide a statement was complied with, so the assertion in your question is incorrect. But, nevertheless, out of courtesy to the Senate I have tabled, once again, the grounds of the public interest immunity claim—a claim, by the way, taken on advice.
The answer to your sixth question is explained in the document that has just been tabled and was explained in the written answer provided to the question when it was taken on notice. All other matters which you raise have been dealt with by me already in evidence before either the references committee or the estimates committee or in the instrument which I have tabled.
I seek leave to ask a question of the Attorney-General.
In your comments and explanations to the Senate on 28 November, you said, in part, when talking about the Solicitor-General, Mr Gleeson:
After I indicated that I did not intend to intervene in the proceedings on behalf of the Commonwealth, I was contacted by the Solicitor-General, Mr Gleeson. He gave me certain advice.
You invoked privilege on that, understandably. You then said:
It is sufficient to say that Mr Gleeson was strongly of the view that the Commonwealth should intervene, … I saw the force of what Mr Gleeson put to me and I accepted his advice.
He obviously told you that he was the Solicitor-General and was representing the ATO at the time. Was it after he put this forceful argument that you decided to issue the directive, just before the election, that all matters for all ministers and all departments had to in future come through you?
No, Senator. I have answered that question before. I assume you are referring to the legal services direction. The decision to issue the legal services direction was not causally related to that matter.
I seek leave to ask some questions of the Attorney.
Firstly, Attorney, are you aware that the ATO sought legal advice on their position should you issue a direction that they not intervene in the Bell matter in the High Court? When did you become aware of this? What, if anything, did you or any of your staff do after you became aware of that? Secondly, do you agree that the precedent of this Senate is that the fact that legal advice might be considered privileged by government or by a minister does not automatically mean that it satisfies the public interest immunity requirements that have been established in the past by this chamber? Thirdly, are you seriously walking away from Odgers' in here today? Do you regard it as a fire starter to get your kindling going, or do you accord it anything higher than simply being one opinion on how this Senate works? If you do, what other body of work do you rely on to give advice to the senators in this place and to the chamber as a whole about how the Senate operates?
Senator McKim, you have asked me about my or my officers' knowledge of certain matters at certain times. Obviously, I will have to take that on notice. In relation to the position of invoking a public interest immunity claim in respect of legal advice, that, as I pointed out in my answer to Senator Pratt, is the invariable position of all Australian governments, and it has been since Federation, and in the written answers to questions that I took on notice in the references committee, which I have tabled again this morning, the various precedents quoting the views of attorneys-general from both sides of politics are set out. They are merely a sample of those views. It is an absolutely fundamental position that the Commonwealth does not publicly disclose its legal advice and that that is a recognised ground of public interest immunity.
In relation to your third question about the standing of Odgers' Australian Senate Practice, Odgers' is a practice book which provides guidance about the practice and precedents of the Senate. The view it takes of certain matters concerning the relationship between the Senate and the executive government, of which this is one, is not, and has often not been, shared by the executive government. To the extent to which Odgers' asserts that the executive government has certain obligations in the Senate in relation to the disclosure of legal advice, that is inconsistent with the unvaried practice of all Australian governments since Federation.
I seek leave to ask just one more question of the Attorney-General.
Mr Attorney-General, after the ATO heard the bureaucratic whispers that you were about to issue a directive to overrule them and the High Court, did Mr Mills from the ATO approach you or your department and say—I am paraphrasing—'The Solicitor-General was already our legal representative in the High Court and it really has nothing to do with you'?
I do not know if Mr Mills spoke to anyone in my department and, if he did, I do not know whether he said that or not. I had a conversation with Mr Mills during the course of which he did not say the words that you have just said. What you have to understand, Senator Hinch—I think you do understand—is that no directive of the kind you refer to was ever issued. No directive of the kind you refer to was ever issued.
I seek leave to ask the Attorney-General three questions.
My first question relates to evidence that we have taken at this inquiry already, which is that the Attorney-General did not personally prepare a direction to stop the ATO from intervening in this case, but we know that the Attorney-General has refused to answer whether his office prepared a direction to prevent the ATO intervening. My first question is: doesn't this cause an inference that his office did request such a direction to be prepared? My second question asks the Attorney-General for his response to the evidence from senior Australian tax office officials this week that the prospect of a direction being issued against them by the Attorney-General or his office was discussed between the Australian tax office, Treasury and the Australian Government Solicitor. My third question to the Attorney-General is for him to advise when the last time was that a Commonwealth minister had to be hauled before the full Senate to stop avoiding answering questions.
Senator Watt, the answer to your first question is no. The answer to your second question—and I will make the perilous assumption that you have given an accurate paraphrase of evidence which I have not read—
Opposition senators interjecting—
You said: 'Were there discussions between the Australian Taxation Office, Treasury and the Australian Government Solicitor?' If there were such discussions, I am not aware of them and they did not involve my office. And you say the conversations to which you refer were about the prospect of a direction. No such direction was ever issued.
That the Senate take note of Senator Brandis's answers.
In doing so, I note that the fact that certain information is provided to the government as legal advice is not sufficient in this chamber to satisfy a claim of public interest immunity. In relation to claims of legal professional privilege, as Senator Brandis has made, the 14th edition of Odgers' Australian Senate Practice states:
It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides a ground for a refusal of information in a parliamentary forum ... It must be established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings.
According to the advice received by the Legal and Constitutional Affairs References Committee, the existence of legal professional privilege may lend weight to a public interest immunity claim, but any such claim must nonetheless be raised on an accepted ground and accompanied by a statement of the harm to be apprehended from the disclosure of the information sought, and that is that the harm specified should relate to the matter at hand. What is the harm to the public interest in relation to this matter specifically, not in relation to general disclosure of legal advice? What is the harm to the public interest in relation to the Bell matter that would occur from the disclosure of the information sought?
As I outlined in my questions, in his response to the Senate, tabled on 23 March, the Attorney-General showed absolute disregard for the standing orders of this place when he stated: 'Thus, whether or not the Senate has accepted that matters pertaining to confidential legal advice to government are always and in all circumstances immune from disclosure is neither here nor there.' That is blatant disregard for the standing orders of this place. He went on to say: 'The fact is that, in general, such matters are not disclosed.' That is not a proper reflection of his obligation to the Senate. It is important that the Attorney-General is able to explain his actions and he has failed to do so adequately today. It really demonstrates that he believes he is above the rules of the Senate which specify that legal privilege is not in and of itself a basis for refusing answers to Senate committees or, indeed, for refusing answers in this place.
So the question before us today is why the Attorney-General has not complied with the Senate's request to provide the basis for his public interest immunity claims. It needs to be a legitimate basis. The substantive nature of the public interest immunity claim made by Senator Brandis does not meet the threshold tests required by this chamber. The report tabled by the committee yesterday required the Attorney-General to provide the committee with a statement of the grounds for concluding that it would not be in the public interest to disclose this information, specifying the harm to the public interest. There has been no recognition within the Attorney-General's answers that goes to that point. No harm to the public interest has been specified that would demonstrate that there is a harm to the administration of justice, given that the litigation in this matter has now ended and there is no risk of compromising that litigation.
On that note, why the Attorney-General has specifically refused to allow answers as to whether his office prepared a direction, under the Judiciary Act, that would have prevented the Australian tax office from intervening in this matter has not been answered. The Attorney-General, again, was aware of evidence given before the Senate committee on 27 March that the tax office was so worried that the Attorney-General was about to issue such a direction that they indeed sought legal advice and made the tax commissioner, Chris Jordan, aware of those plans. It is very clear that the Attorney-General did not make any efforts to disabuse them of that notion, because it is clear that he had such plans, and he has made no explanation to the Senate regarding those plans. On that basis, why did the Attorney-General say to Andrew Mills on 7 March that he was not going to issue a direction unprompted? Indeed, that suggests that the Attorney-General was considering doing so. Why won't the Attorney-General tell the truth on that matter? He was indeed planning to issue a direction to stop the Australian tax office from intervening.
Right through this sorry saga the Attorney-General's behaviour has been rife with evasion, with obfuscation, with delay and in fact with arrogance. He has arrogantly refused to answer questions, he has arrogantly failed to respond to questions on notice within the time frame set by the Legal and Constitutional Affairs References Committee, and that arrogance has been topped off today by the Attorney-General telling the Senate that he knows better than that massive body of work, put together by a rank of experts in Senate practice, contained in Odgers'. I want to be clear about this: I have seen strongmen rip up phone books in my time, but to see an Attorney-General come in here and basically rip up Odgers' this morning is something I never thought I would see.
I want to say to the Attorney that my experience in parliaments is that when a stoush emerges or differences emerge between parliaments and executive governments, parliaments tend to win. When you think about it, that is logical, because it is executive government that flows from parliament, not the other way around. The pre-eminent institution in our democracy is this parliament. It is not the cabinet, it is not the office of the Prime Minister and it is certainly not the office of the Attorney-General. We are debating right now in the pre-eminent institution of our democracy, the Commonwealth Parliament of Australia, and what we say goes, not what the Attorney-General, Senator Brandis, says.
I want to address now the issue of legal privilege. The first point to make is the obvious point that the Attorney-General has continually missed in this debate—that is, that legal privilege is his to waive. Governments right through Australia's history have from time to time chosen to waive legal privilege and provide matters that otherwise would have been covered by legal privilege, because it was in their political interests to do so. I have seen it on many occasions, both in the Tasmanian parliament and, before I was a senator in this place, through the media in relation to governments at a national level in this country. Make no mistake: the Attorney-General could right now waive legal privilege and provide the information that the Senate is asking for. The fact that he is not doing that shows that he has something to hide here. It is not good enough to him to rely on what he describes as a 'lengthy precedent of governments of all stripes in this country'. The Attorney could waive legal privilege, if he wanted to, and he could provide that advice to the Senate right now. It is his gift to give, but he is not giving the gift, presumably because he has something to hide. This is why we need to see the advice that this motion or the motion previously passed by the Senate refers to.
The second point to make—and this the question I put to the Attorney that he did not go to in his answer—is that clearly the precedent of this Senate is not to accept a simple claim of legal privilege as grounds for a successful claim of public interest immunity. That is the long precedent of this place. We need from the Attorney a proper claim of public interest immunity that outlines in detail the public harm that he claims would flow from releasing the legal advice. That is certainly what the Australian Greens expect from the Attorney-General.
The third point to make, and I go to the specific matter of the Attorney's awareness of the ATO's decision to seek legal advice on what their position would be, is should the Attorney issue a direction that the ATO not intervene in the Bell Group matter in the High Court. He has taken that on notice, and I hope that he does a better job of meeting the requirements of matters on notice than has been his unfortunate track record in the past, where we have seen many dozens of failures from this Attorney to respond within the appropriate time frames to questions put on notice.
It is important that we all understand that the ATO heard what they described as bureaucratic whispers that the Attorney was considering issuing a direction that the ATO not intervene in the Bell Group matter in the High Court. So clearly this was the discussion at senior levels of the Commonwealth bureaucracy—and so it should have been, because it would have been almost unprecedented had the Attorney decided to issue a direction to effectively prevent the ATO from maximising its opportunities to recover the moneys it believed were owed to Commonwealth coffers as a result of the matters in Western Australia, with the winding up of the Bell group of companies.
We need to know what the Attorney knew and when—and when I say 'the Attorney' I include all of his staff. I have been a minister in the Tasmanian government, and we all know what your staff do is in effect what you do. When a staff member tells someone something, it is as if the minister told them himself or herself. So we need to know what the Attorney and his staff knew about the ATO seeking legal advice on their position should the Attorney have directed them not to intervene, when he became aware of it, and what happened either in his office or from his office out into any part of the bureaucracy in this country, including the Solicitor-General's office, once he became aware of that fact.
What a humiliating morning for the Attorney-General of Australia. This man is so determined to hide evidence from the Senate and Senate inquiries that he has to be hauled before the full Senate and be asked questions that he will not answer when put to him by a committee set up to inquire into this issue. I cannot remember the last time I saw a minister, whether in a state parliament or the federal parliament, having to be dragged before the full chamber in order to get them to stop hiding information that is reasonably sought by a committee. You can only wonder what Senator Brandis's colleagues must think of the amount of time that is being expended in defending his incompetence, his secrecy and his deception. This is a government that is struggling desperately to get clear air to do something positive for this country. We are told that we are going to sit into the night tonight to try to get legislation through which they say is necessary for the future of this country, but yet again Senator Brandis's incompetence and deception is causing the Senate to divert time to ask him very reasonable questions about his practice and that of his office.
This is yet another example of the lengths of deception that this Attorney-General is prepared to go to to prevent the truth getting out about his involvement in very serious matters under his portfolio. It was not that long ago that we had to establish a Senate inquiry into his behaviour in relation to the former Solicitor-General of Australia and we had very clear evidence from numerous senior officials in this government, from the Solicitor-General down, that the Attorney-General had clearly taken action against the Solicitor-General as retribution for the Solicitor-General's desire to maintain some level of independence around the advice that he had given. We have seen the Attorney-General deceive the Senate previously about his role with the Solicitor-General—
I withdraw. We have also seen the lengths that this Attorney-General will go to to prevent access to his diary. He has hidden his diary from the Australian public over a period of about three years, and it was not until we obtained orders from the Administrative Appeals Tribunal, backed up by the Full Court of the Federal Court of Australia, that this Attorney-General finally complied with the law and produced his diary, as he had been requested to three years ago, and now in this inquiry into the Bell Group litigation and the Attorney-General's involvement in that we see repeatedly the Attorney-General make dubious uses of public interest immunities to prevent the Senate obtaining answers to legitimate questions about the role of him and his office. The Attorney-General is supposed to be the first law officer of this country—
He is supposed to be, Senator Cash. The Attorney-General is supposed to be someone who is beyond reproach in their administration of justice of justice but, instead, in Senator Brandis we have someone who will go to extraordinary lengths to prevent the Senate from getting the truth and from getting basic information about how he has conducted himself in this role.
To briefly recap what we have ascertained so far over the course of this inquiry, this really involves the apparent deal between the federal government and the Western Australian government to turn a blind eye to over $300 billion in taxes that were owed by the Bell group of companies to the Australian taxpayer. It does seem clear that the former Treasurer, Joe Hockey, did reach some sort of a deal with the Western Australian government to forgive the payment of those taxes, but Senator Brandis's involvement in this matter more concerned the attempts that were made to pressure the Australian Taxation Office to not pursue those taxes in our courts. We will all remember the statement from the Attorney-General in late November last year when he told the Senate that his first personal involvement in this case was on 3 March 2016, and of course before too long he had one of his own Liberal counterparts, the former Western Australian Attorney-General, come out publicly and say that that was not correct and that he had actually spoken to Senator Brandis in early February. Senator Brandis had one of his now infamous memory losses. He does not recall that conversation and maintains this ridiculous fiction that having a conversation with an Attorney-General from Western Australia does not amount to personal involvement in the matter.
What the inquiry has turned to more recently is the apparent efforts by Senator Brandis, or his office on his behalf, to nobble the Australian tax office and to prevent them from taking legal action to try to recover over $300 million in unpaid taxes owed to the Commonwealth taxpayer. Most Australian taxpayers would want to make sure that companies who owe taxes repay those taxes and do the right thing, and they would expect the Australian tax office to pursue those taxes on their behalf. But what we have uncovered over the course of this inquiry is an apparent attempt by the Attorney-General or his office to prevent the Australian tax office from doing its job. Even today, those who have been listening to Senator Brandis will have noted his slippery use of language to yet again try to evade responsibility in this matter. What he has told the Senate again today is that no direction was issued to the Australian tax office to prevent them from taking action. That is not the subject of the questions that have been asked. What has been asked is: what directions were drafted by his office, or what action did his office take to try to prepare a direction, to stop the Australian tax office from taking action?
In an earlier hearing in this inquiry, we asked whether the Attorney-General himself directed the tax office, or prepared a direction to the tax office, to stop them from interfering in this case. We were told very clearly by the Attorney-General's Department that the Attorney-General had not done so. But, when we went on to ask whether the Attorney-General's office had prepared a direction to stop the ATO from doing its job, or had asked the Attorney-General's Department to prepare such a direction, we were not told the answer to that one. Privilege was claimed. A public interest immunity was claimed. And we are now told by the Attorney-General that it is against the public interest to reveal whether his office directed the ATO or attempted to direct the ATO from interfering in this case.
What I cannot understand is why it does not constitute legal advice and it is not privileged information to tell the Senate that the Attorney-General did not direct the ATO, or did not seek to prevent the ATO, but, when we want to ask questions about what the Attorney-General's office has done, all of a sudden the walls of privilege go up. There is a clear inconsistency and a clear double standard that is being used by the Attorney-General and his department to try to hide the involvement of the Attorney-General's office in this matter.
This week we received clear evidence from the Australian tax office. We asked them again whether they had become aware of any discussions about the prospect of a direction being issued. What they advised the Senate inquiry was that senior Australian tax office officials were aware of discussions and were party to discussions with officers from Treasury and the Australian Government Solicitor about attempts being made by the Attorney-General's office to prevent them from interfering in this case.
Everyone accepts that ultimately no direction was issued, and I suspect that is due to the efforts of the Australian tax office in fighting back against Senator Brandis and his attempts to nobble this case. But what we now have is clear evidence on the record where senior officers of the Australian tax office have said that they were having discussions with their counterparts in Treasury and the Australian Government Solicitor about efforts that were being made to stop them from interfering in this case.
It is about time that the Attorney-General finally came clean with the Senate. He is the first law officer of this country. He is supposed to be beyond reproach. He is supposed to be someone who is just quietly doing his job rather than distracting the government from their agenda. But, time after time after time, we have to spend the Senate's time trying to get answers out of this Attorney-General, and, in the process, he goes on to embarrass all of his colleagues and the government as a whole. The Attorney-General should just answer clearly today whether his office requested that a direction be drafted to prevent the Australian tax office from interfering in this case, and then these questions would cease.
I want to indicate a view that I perhaps can hold more than anyone else, because I have been in this parliament more than anyone else. I just say that Senator Brandis is probably the best Attorney-General I have ever experienced in this chamber. Senator Brandis is a longstanding colleague of mine—not a particular friend, I might say, but a longstanding colleague. I have known him over a long period of time. His knowledge of the law is impeccable. His attention to precision and detail is without peer in this chamber and in any Attorney that I have seen here in the 27 years I have been here. I have seen a few, and there have been some good ones—none of the Labor ones, I might say, but there have been some very good attorneys-general from the coalition. Senator Brandis is as good as, if not better than, all of them.
I wonder why these farcical inquiries keep being held by the Labor Party and the Greens. That is all they are. They are not Senate inquiries; they are simply Labor Party and Greens inquiries. I keep wondering why they do it. It is pretty obvious that if you want to attack someone, if you want to bring someone down, you do not do that to the worst-performing minister in the parliament; you do it to the best, the one that causes you most trouble, the one that has an accurate answer to every allegation levelled against the government in his role both as Leader of the Government in the Senate and as Attorney-General.
When you keep trying and can never ever get a kink in the armour, it sets the Labor Party and the Greens up further. They keep holding these Labor Party and Greens inquiries—not, I emphasise, Senate inquiries, because more often than not these inquiries set up by the Labor Party and the Greens are held at times when they know government senators will not be available. So they are not Senate reports—they are not Senate inquiries—they are simply reports and inquiries of the Labor Party and the Greens, who keep—
Senator Hinch is a participating member, as is every other senator. He is not a full member of the committee. I repeat that this and several other committees are committees that have been set up by the Labor Party and the Greens. Instead of spending moneys of the Labor Party and the Greens to do these political exercises they use the money of the Senate.
Every one of these dodgy so-called inquiries that have been brought relating to the Attorney-General have achieved absolutely nothing. I heard someone mentioned inquiry into the Solicitor-General. We all know the result of that. Senator Brandis came out unscathed and unblemished, with not a chink taken out of anything he had said in that whole debate. But the Solicitor-General, I have to say, did the right thing and resided during the course of the hearing, because the Solicitor-General knew that his conduct as an officer of the government—dealing with secret information to a member of the opposition—was untenable. I did not know the Solicitor-General—I do not think I ever had anything to do with him—but I thought his conduct was particularly improper and that he did the right thing by resigning. I only raise that to say that the Labor Party and the Greens keep running these political inquiries because they want to attack the person who is most valuable to the government and is the one who causes most grief to the Labor Party and the Greens.
I do not want to embarrass Senator Brandis, who is in the chamber now, but I repeat, I have known Senator Brandis for a long time. He is not a particular friend of mine, but I have the greatest admiration for his ability—
Honourable senators interjecting—
I have the greatest regard for his ability, his integrity and his grasp of the law. I cannot understand the Labor Party and the Greens. I think these things are brought by people perhaps who wanted to be lawyers, who could never make a go in private practice, who became ambulance chasers, who tried to get into state parliament, were there for a little time and were then thrown out by the electorate. Perhaps it is these sorts of people who want to make a mark in the law that they were never able to do in real life, out there. All of these inquiries have been as wasteful of Senate resources and of Senate time as this inquiry was.
Nobody—not the public, not even the media, who will at even the whiff of some real drama happening be there with a full page—is interested in this hearing. This is a hearing about Labor incorporated. Remember 20 years ago when Labor got together with big business and rorted the Western Australian public? Remember that? That is what this inquiry is about. Twenty years ago, the Labor Party and big business—
Senator Farrell interjecting—
I am sorry. I beg your pardon, Senator Farrell. I stand corrected. It was not 20—I will take your interjection—it was 30 years ago. That is how long ago this was. Can you believe it? Can you believe the Senate is spending any time on rehashing one of the darkest periods in Labor Party history, and there have been plenty of dark ones with the Labor Party, I tell you. The darkest period in Labor Party history in Western Australia and, by implication, federally was when the Labor Party got into bed with crooks who cheated Western Australians out of a lot of money. That is the genesis of this inquiry. I cannot believe that the Labor Party would want to rehash this, that it would want to remind the Australian public of the dishonesty, of the criminality, of the Labor Party in Western Australia 30 years ago. You might remember that—was it one or two?—Labor premiers went to jail over this incident.
Brian Burke? I thought there might have been another Premier or a minister. These were Labor Party politicians who went to jail. They were crooks, yet the Labor Party and the Greens in this chamber want to remind us about that. That I cannot understand.
I do not have the detail as well as the Attorney has, but he has repeated it so often to this chamber that even I can have an understanding of some of the issues. It was all about WA Inc., where money was owing. There was a liquidation. The liquidation had gone on for 20 or 30 years. Some lawyers had been paid small fortunes—millions of dollars—in dealing with the distribution of the few assets that remain from some of the WA Inc. companies. The Western Australian government was trying to make sure that the maximum amount available could be paid to creditors 30 years later. That is what the Western Australian government was doing. At one stage, the Commonwealth became involved because the tax office was involved. The evidence clearly shows, you do not need me to repeat it and you do not need Senator Brandis to repeat it again—the evidence is there, it is in the Hansard of the committee hearings that I have read—that the tax office went ahead and did what it was going to do. The suggestion that somehow the Commonwealth was going to miss out on money is just so ludicrous. I cannot understand the Labor Party except if you come back to my original premise that it is this constant attack on Senator Brandis, who, as I say, is one of the best attorneys-general I have seen in this parliament in the 27 years I have been here. He is a man with impeccable legal knowledge, a man whose precision and detail are beyond reproach. And you have these amateurs from the Labor Party and the Greens thinking they will make their mark in life by trying to find a chink in his armour—people who failed in state parliaments, failed in Tasmania, failed in Queensland. They could never make their way there, and they hope that they can do something in this chamber by raising these issues.
I appreciate there are a lot more important things to be discussing today, and the Senate really should get on and do them. We have had this farce this morning of the Senate taking a lot of time—and I apologise to the Senate clerks. Obviously the Labor Party has imposed on the Senate clerks to write out all these questions to ask and these motions to put. It was wasting the time of the Senate clerks, of the Senate committees area, to put up this series of questions, which I listened to earlier. Senator Brandis has answered every single one of them—I might say for about the third or fourth time.
The issue has come up about the parliamentary privilege of legal advice. That is an uncontestable proposition. As the Attorney has said, as anyone who has been around parliament for a long while knows, you cannot run a government if the legal advice is made public. That is something that governments since 1901 have been adopting. It is something that governments around the world do. It is uncontroversial. It is not contestable. And yet we have spent so much time here today arguing about this.
As I say, there are more important things to be dealt with. I just felt compelled to enter the debate when I heard the previous speakers carrying on about things they clearly know nothing about. They are desperate to try and find a chink in the armour. They are desperate to try and bring down one of the government's better performers. All of this continues on. This is the third, fourth or fifth inquiry now and, as I say, Senator Brandis has come out of each one of them not only looking and smelling like roses but actually being a rose. Why the Labor Party and the Greens continue to waste the Senate's time on this I simply cannot understand. I should be encouraging them to continue, because they keep making fools of themselves. They keep looking like spoilt little children who cannot become king of the kids. They take on all of these quite ridiculous inquiries at the taxpayers' expense.
I repeat, in case it has escaped anyone's attention: these so-called inquiries are not Senate inquiries. They are inquiries set up by the majority Greens and Labor. They are manned by the majority Greens and Labor. Most of the hearings are held when the majority know that government members cannot be available because we are involved in other—
How can it be a Senate inquiry when it is Labor and Greens? They are set down when Labor Party and Greens members know that government senators are elsewhere, on other inquiries. They have been told time and time again that government senators have other committees that they are precommitted to, and the hearings are still set down. So you have three Labor senators and a Greens senator as voting members on these committees, and no government senator. How can they possibly be classed as Senate inquiries, when they are nothing more than a political game being carried on by the Labor Party and the Greens political party, using Senate resources and the taxpayers' money? It is a disgrace.
I conclude by again congratulating Senator Brandis on the work he has done. I thank him for what he has done for Australia as the Leader of the Government in the Senate and as one of the best Attorney-Generals I have seen in my long term here. I again wish Senator Brandis continuing success—as I know he will have—in his role leading the government in this chamber and as Attorney-General of our nation.
It is very interesting to see Senator Macdonald there saying that all this debate this morning is a total waste of time and then spend 16 minutes going on about it. I can tell Senator Macdonald, through the chair, that I am not part of a Labor-led witch-hunt against the Attorney-General and I have no desire to ever be a lawyer—I never have had, even though I have spent a lot of time in courts.
Some senators and, more importantly, the Australian public may wonder why there have been so many hearings by the Legal and Constitutional Affairs References Committee into all of this, because, as you well point out, Senator, this is about Bond and Bell and it happened 25 to 30 years ago. But there are two points I want to make here. We had Joe Hockey, the then Treasurer, making a deal with the Western Australian government to divert $300 million—which should have gone to the Australian taxpayer through the ATO, through the Commonwealth—back to the Western Australian government, which would deprive other small creditors. WA would get the $300 million and other creditors would not. Especially, the ATO, the Commonwealth, would not get it. They dudded the small creditors out in WA. They dudded the Commonwealth. That is one point.
The second point—and why it is important—is that I believe that this is what led to the directive by the Attorney-General, as a spin-off last year, to make himself the gatekeeper of all legal issues, so all ministers, all departments, had to go through him. On that occasion we had the then Solicitor-General, Mr Gleeson, eventually resigning. I mentioned earlier that forceful argument that they had about Mr Gleeson, the then Solicitor-General, being before the High Court as the ATO's lawyer at the time. I will not be taking up the 20 minutes on this. I made my point earlier. I make it again. I just want to stress to Senator Macdonald, through the chair, that I am not part of some Labor-Greens cabal in all of this. I am a participating member of the committee, and I do not regret a minute of it.
I rise to speak—and close the debate, I expect—on the motion that the Senate take note of my explanation. And I will expand upon that explanation.
I have never seen such a farce made of Senate procedure in the 17 years I have been here as I have seen this morning. After lengthy questioning at Senate estimates on both the principal hearing day and the spillover day, after two hearings of a references committee where the Labor Party and the Greens got absolutely nowhere, they seek now to try and revive this flogged, dead horse of an issue on the last morning of sittings. I am going to use my time to address a couple of the issues of fact in relation to the Bell litigation, and, secondly—
Senator O'Neill interjecting—
if you would have the courtesy to hear me in silence, please, Senator O'Neill—elaborate upon the grounds of public interest immunity which I felt compelled to take in discharge of my duties to the Commonwealth, on advice.
Let us talk about the Bell litigation. Mr Acting Deputy President Whish-Wilson, indulge me, if you will, for a moment. The Prime Minister described the Bell litigation as the Jarndyce and Jarndyce of Australian law. Jarndyce and Jarndyce, for those unfamiliar with it, is the fictional suit which was the subject of Charles Dickens's novel Bleak House. This is how Charles Dickens described Jarndyce and Jarndyce:
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
That is an apt description of the Bell litigation. There are very few of the directors still alive who were parties to the commercial transactions in the 1970s and 1980s that led to the Bell group of companies being put into liquidation some 30 years ago. And, like the young child who was promised a rocking horse when Jarndyce and Jarndyce should be settled, there is a man who began his legal career working on the Bell litigation as an articled law clerk in Perth who now sits on the High Court, so long has the Bell litigation proceeded.
and with the support of the Greens in the Western Australian parliament, tried to do was to bring the matter to an end by an all-up statutory settlement. That statutory settlement was the subject of the High Court proceedings of which we have heard so much. But the first thing to remember about this is that this was a nonpartisan attempt to bring to an end more than 30 years of seemingly endless litigation on which, according to some estimates, almost half a billion dollars of lawyers' fees, liquidators' fees and insolvency practitioners' fees had already been wasted. So the motive was pure.
It is said by Senator Watt and others that Mr Hockey entered into a deal with the Western Australian government in relation to the High Court proceedings. That is false. The evidence before the references committee could not have been clearer. Senator Watt himself asked the question about an arrangement having been struck, and Mr Mills from the Australian Taxation Office said this:
I might correct the record. The letters actually do not show that there was any arrangement.
He went on to say—Mr Mills, that is:
From all that we could read from the Treasurer's letter back to the Western Australian Treasurer … we were not compromised in any way in terms of what we believed was the action we should take.
Let me say that again. Mr Mills, the second commissioner of Taxation, said:
… we were not compromised in any way in terms of what we believed was the action we should take.
Now, Senator Watt knew that that evidence had been given before the Senate committee because he was the senator asking the questions, and yet he represented to the Senate this morning the opposite, that there was a deal, when he knew the only evidence was that there was not a deal. People can draw their own conclusions about Senator Watt's honesty, and we can be very satisfied that Mr Hockey has nothing to answer.
Secondly, the suggestion was made by Senator Watt and others that I had in some way interfered with the Australian Taxation Office. This was the evidence before the Senate committee, first of all from Mr Chris Jordan, the Commissioner of Taxation:
No-one sought to inappropriately or otherwise persuade us to discontinue from that view. … Whether or not people were having discussions outside of us, no-one ever sought to inappropriately influence the course of action that we had, continued and did.
That is the Commissioner of Taxation speaking on behalf of the Australian Taxation Office. Mr Mills, on 7 December, said:
The ATO have upheld our position as an independent administrator and independence in our decisions throughout the course of this matter. Neither the commissioner nor I, or any other decision-maker in the ATO, were lent on by a minister or their office or directed to do anything other than what we did.
Senator McKim asked some questions of Mr Mills on the same day about me. Senator McKim said:
that is, Senator Brandis—
at any stage seek to dissuade the ATO from intervening?
And Mr Mills said, 'No.' That is the evidence and that is the fact, but you would not think so from hearing the speeches given by Senator McKim, Senator Pratt and Senator Watt. But that is the evidence and those are the facts.
This entire wasted morning is an argument about nothing. It is an argument about an instruction that was never given, about a direction that was never issued. The highest to which the case made by the opposition rises, on the basis of evidence from an officer earlier in the week who was not directly involved, was that he had heard some bureaucratic whispers. Honestly and truly, Senator Pratt, if that is the best you can do—and it is the best you can do—you should not waste our time.
Let me turn to the question of the circumstances in which the Australian government, through its ministers, claims protection from publication of its legal advice. Let me say again—as I said in answer to you, Senator Pratt, and others—that it is absolutely the standard position of the Australian government that its legal advice, like the legal advice of any private client, for that matter, is not made public. Senators have been misled, perhaps through ignorance rather than malice, by a selective quotation from Odgers', which, in the current addition of Odgers', the 14th edition, between pages 668 and 669, under the item 'Legal professional privilege', says this:
Legal advice to the federal government, however, is often disclosed by the government itself.
And it is the case that on occasions privilege is waived, but that is not the standard case, as you know, Senator. It continues:
Therefore, the mere fact that information is legal advice to the government does not establish a basis for this ground. It must be established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings.
The problem with the selective quotation of that passage from Odgers' is that it disregards the long discussion that goes before in relation to the various grounds of public interest immunity.
Senator McKim, you said in your contribution: 'The Senate does not accept a simple claim of public interest immunity; a detailed statement is required.' I accept that, Senator Watt, and I provided a detailed statement, which is the document I tabled this morning and which I will read into the record. What it represents is both a statement of the universal practice of all Australian governments since Federation in relation to legal advice, subject in exceptional circumstances to waiver, I acknowledge, but that is something that is seldom done and is never done, nor should be done, if the advice to government is that the publication of the advice would prejudice the legal position of the Commonwealth.
So here are the detailed grounds, not of a legal professional privilege claim but for a public interest immunity claim. The selective quotation, as I say, from Odgers' of the passage that deals with legal professional privilege ignores, perhaps through ignorance or perhaps deliberately, the broader ground of public interest immunity, which Odgers' also addresses and which is the ground of the claim made in detail on behalf of the Commonwealth by me. Let me read it into the record. We begin with the statement of the former Labor Attorney-General Senator the Hon. Gareth Evans QC:
… [n]or is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle …
That was what Senator Gareth Evans, the only Labor QC who has sat in the Senate as Attorney-General, said. To similar effect were the remarks of another former Attorney-General, the Hon Daryl Williams QC:
… I am going to offer the traditional response. I am not going to speculate about advice that the government may or may not have received nor am I going to provide any of that advice …
Another former Labor senator and shadow Attorney-General, who is also a member of the bar, Senator Joe Ludwig, of recent memory, put the position as follows:
To the extent that we are now going to go to the content of the advice, can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.
… It is not the practice of the Attorney to comment on matters of legal advice to the Government. Any advice given, if it is given, is given to the Government …
Those are clear statements from both sides of politics which indicate what, as I have said, is an invariable practice which stretches back to Federation, and I as the Attorney-General would be in outrageous breach of my obligations to the Commonwealth to depart from what has been the invariable practice of the Commonwealth executive government since Federation.
Thus, whether or not the Senate has accepted that matters pertaining to confidential legal advice to government are always and in all circumstances immune from disclosure is neither here nor there. The fact is that, in general, such matters are not disclosed. Plainly, as I acknowledged at the hearing, there may be exceptional circumstances in which to depart from that general practice. However, no such exception arises in the present context. On the contrary: as I will explain below, the present case is one in which the potential harm of disclosure is particularly acute, and the grounds for non-disclosure thus particularly strong.
The public interest in non-disclosure
It is not in the public interest to depart from the established position that has been maintained over many years by successive governments, from both sides of politics, not to disclose privileged legal advice. Absent exceptional circumstances, it is essential that privileged legal advice provided to the Commonwealth remain confidential. Access by Government to such confidential advice is, in practical terms, critical to the development of sound Commonwealth policy and robust law-making.
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers.
It has further been recognised that the doctrine of legal professional privilege itself arises from a weighing of the public interest for and against disclosure. In Waterford v Commonwealth, Mason and Wilson JJ opined:
Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception, the public interest in "the perfect administration of justice" is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required.
That view was reaffirmed by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation. Their honours succinctly stated the rationale for the privilege: it "exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers."
It follows from these observations that the specific harm that the doctrine seeks to prevent is the harm to the administration of justice that would result from the disclosure of confidential interactions between lawyer and client.
It also follows that to invoke the doctrine of legal professional privilege is to identify the specific harm to the administration of justice that the doctrine seeks to prevent.
Here, the Committee's questions go to the heart of the Commonwealth's approach to constitutional litigation in the High Court. Disclosure of advice in this context would mean that in some of the most sensitive litigation faced by the Commonwealth — constitutional litigation with a State — the Commonwealth could no longer be assured that its dealings with its lawyers would remain confidential.
I do not think any senator would be so bold as to dispute that that is a detailed statement of the grounds of the harm the Commonwealth points to and of the legal and principled bases of the doctrine. So please, Senator Pratt and others, don't by taking out of context a sentence in Odgers'about legal professional privilege try and obfuscate the fact that the basis of the claim to prevent harm to the Commonwealth is based on the broader ground of public interest immunity, also discussed by Odgers', which you conveniently neglected even so much as to mention.
There is nothing to be found in relation to this matter. The claim for public interest immunity based upon the character of legal advice taken by government is utterly orthodox. When all of Odgers' is read, it is not inconsistent with Odgers' discussion of the public interest immunity ground, and I would be derelict in my duty as the Attorney to protect the legal interests of the Commonwealth to do other than as I have done.
Question agreed to.