Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

Thank you for correcting me again, Senator Brandis. I am always pleased to be corrected by you. It is Dr Nahan I am told. Dr Nahan said:

The understanding was that the commonwealth would not use the powers under the Corporations Act with the regulations null and void and it would not take an action to the High Court on the ATO and tax issues. In the end the ATO and the commonwealth Solicitor-General did join the action and they were successful in throwing the issue out.

I think the question here, which no doubt will be considered in detail in the coming weeks and days, is about the difference between what we have just had in the statement and what we know from the parliament of Western Australia, because it is quite clear from what the Western Australians have said that they had a very different understanding of this deal. I think what Senator Brandis is asking the Senate to accept is that somehow they were stupid. They got the wrong end of the stick. They were incompetent. It was never actually something that they were going to agree with. Let us understand: we have the Treasurer and the Attorney-General of the state proceeding on the basis that they had an agreement.

I want to make this point also. The Attorney-General says that he was happy for the Commonwealth to intervene—I am sorry; I am paraphrasing—'It was fine; we didn't have to intervene initially, because the ATO was there, and then I decided, after Mr Gleeson set me straight, that we did actually have to intervene.' I make the point that we are talking about the Constitution. We are talking about a law that sought to override a federal law, and we know that because that is what the High Court decided. I think one of the principles that we ought recall here is this: you do not get to ignore the Constitution just because there is a complex problem. As the first law officer of the country, you do not get to ignore the Constitution just because there is a political problem with one litigation that is before the High Court. The Attorney-General, in his opening to his statement, spent a lot of time explaining to us why the Bell litigation was a problem. Just because it was a political problem, it does not mean that the Commonwealth gets to cut a deal on legislation that is clearly unconstitutional—that is not my opinion; that is the judgement of the High Court.

Can I also make this point in relation to that statement, and, as I said, I think all of us will certainly be going through this in great detail, because it is the first time that Senator Brandis has broken his silence on this issue—