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

I want to go through a couple more matters in relation to what has been said publicly about this. First, Premier Barnett has responded to the report in The West Australian. Let us remember that that is a pretty damning report. The report, which ran on Friday of last week, said:

Despite Senator Brandis’ instruction, the ATO's written submission to the High Court — authored by Mr Gleeson — used the precise legal argument that the Attorney-General had assured his State counterpart Michael Mischin would be avoided by the Commonwealth.

There are two ways of understanding that. One is that Senator Brandis has done one of those deals he walks away from. That is always possible. The other is that Mr Mischin got the wrong end of the stick, which, I think, is Senator Brandis's proposition. The point is: that is clearly on the record, and I do not believe it has been answered properly by the statement the Attorney just gave. The Western Australian government's position is very clearly that they had been assured by this minister, this Attorney-General, that that argument would be avoided:

Mr Mischin was infuriated by the ATO's move, not only because its argument in the High Court was on a basis the Commonwealth had promised not to advance, but because he thought the tone of the agency’s submission professed WA's ignorance of the Constitution.

In fact, the Commonwealth was kept well abreast of the State’s intentions, with WA openly discussing the constitutional issues concerning its legislation and even sharing early drafts.

It is not like this is a new thing—they cannot have had an exchange of papers, an early draft here, an early draft there, checking out if this is okay—but Senator Brandis wants us to believe he was not part of it at all; he knew nothing about it; it is all that pesky Mr Hockey's fault. Bring him back from Washington and let him explain to everybody what happened. Then:

WA Treasurer Mike Nahan had received personal and written assurances early last year from then Federal counterpart Joe Hockey that the Commonwealth would not oppose the State Governments move.

…   …   …

… five days after the High Court had heard the case, Mr Mischin and Senator Brandis had what witnesses say was a ''blazing row'' when the two attorneys-general met in Perth. Mr Mischin told Senator Brandis he was unhappy that the Commonwealth intervened in the case on the grounds pursued in court.

Let us remember also the sequence here. This is all happening in March and April, and then:

On May 4, Senator Brandis issued a directive that any department or agency seeking legal opinion from the Solicitor-General must first get Attorney-General approval.