Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

It is good to see the Attorney-General out of witness protection and in here today attempting to explain himself to the Senate. It shows that in politics you can run for a while but you cannot hide for ever. The statement we have just heard from the Attorney is instructive more for what it does not contain than for what it did contain. Specifically, there was no rebuttal that I recall hearing in his statement of the most serious allegation made in The West Australian article, dated 25 November this year. For clarity, I will put that allegation now and directly quote from that article. It is this:

A senior Federal source told the West Australian that Attorney-General Brandis verbally instructed Mr Gleeson earlier this year, as counsel for the A-G, not to run a particular argument in the High Court when a Bell creditor and its liquidator challenged the constitutionality of WA's attempt to take control of the group's $1.8 billion.

I presume it meant there are $1.8 billion of debts. The West Australian goes on to say:

The West Australian understands Senator Brandis told Mr Gleeson and understanding had been reached between the Federal and WA governments to finally end more than two decades of litigation stemming from the group's collapse.

Let us be very clear about what that allegation is. That allegation is that the Attorney-General instructed that then Solicitor-General, Mr Gleeson, to effectively run dead on the strongest argument he had at his disposal in the High Court challenge to the Bell Act, which was the section 109 arguments. The statement we have just heard from the Attorney-General did not rebut that allegation. The statement also did not contain a confirmation of precisely what the instructions were that the Attorney-General gave to the then Solicitor-General, Mr Gleeson. It is vague at best on details of precisely how the deal was struck between the Commonwealth and the Western Australian governments; and precisely by whom and when the deal was struck.

It is silent on the nature of the dealings that the Attorney-General's office had on this matter before the Attorney-General became aware of this matter, although he did confess that his office had dealings on this matter before he, Senator Brandis, became aware of it. But we do not know precisely what those dealings were. It does not contain any confirmation at all of exactly who asked the Attorney-General to give effect to the deal by instructing the then Solicitor-General not to run a particular argument in the High Court. It is vague at best in regards as to exactly how the Attorney-General became aware of the conversations and letters between the then Treasurer Hockey and Treasurer Nahan from Western Australia. Can I say: that is as good and as dangerous a hospital handpass as I have seen in my political career to date—the one that Senator Brandis has just fired out of the pack in front of Joe Hockey; Joe Hockey is running along; he has his eyes on the ball but he cannot see what is coming at him. It is a hospital handpass that Senator Brandis has fired out today. Make no mistake about that! It is Joe Hockey who is going to get crunched here. Make no mistake about that!

The statement is also vague at best on explanations of the precise role of a number of key players in the deal, including former Treasurer Joe Hockey, Western Australian Treasurer Nahan, the Western Australian Attorney-General Mischin, Commonwealth minister Kelly O'Dwyer, Mr Christian Porter, who is, of course, the former Western Australian Attorney-General and, for that matter, finance minister Cormann. It beggars belief that Joe Hockey did not have a chat over a cigar with Senator Cormann about this deal. It beggars belief; and we do not believe it. There is no doubt that during one of their collegial cigars Joe Hockey would have mentioned this to Senator Cormann. All of those people have now got significant and serious questions to answer as a result of Senator Brandis's statement today.

There is no doubt that Senator Brandis has further muddied the waters today, and that is why the Australian Greens remain absolutely firmly of the view that we need a reference to the Senate's Legal and Constitutional Affairs References Committee so that we can get to the bottom of this in good time, with careful consideration and with evidence from the key players.

What we have here is a situation that is murky enough, but when you apply the context of the situation it gets even murkier. Remember the Western Australian government was bleating continually about the fact that their share of GST revenue was not high enough—again and again conveniently ignoring, of course, that as recently as 20 years ago they were a net recipient of GST revenues. In the mid-1990s the Western Australian government was a net recipient of GST revenue. Conveniently ignoring that, they were bleating; they had the begging bowl out to the Commonwealth; they were applying political pressure to their liberal mates here in Canberra. And then suddenly, oh, there is a dodgy deal—a dodgy deal. 'We'll run dead in the High Court on section 109 so that you can prioritise yourself'—that is, the Western Australian government—'through the Bell act in order to claw back the money that you are owed at the expense of, potentially, the $300 million that the Australian tax office was owed by the Bell Group of Companies.' This is the most serious situation that the Attorney has faced, and he has not by any stretch of the imagination got himself out of trouble with his statement today.

The Attorney-General can say all he likes, as he did in this chamber today. He can say that there was no relationship between the public debate on GST and the deal that was done—no relationship at all. Well, I would say to the Attorney-General: it is well and truly open to the courts to convict on circumstantial evidence—and, boy oh boy, the circumstantial evidence is mounting up here against the Attorney-General, against the Commonwealth government and against their Liberal mates over in Western Australia. Seriously! Did they really think that a state effectively inventing its own version of Commonwealth tax laws would not be an issue for the High Court? Of course it was going to be an issue for the High Court, and, as it turned out, it was an issue for the High Court. There was a seven to zero decision by which the High Court struck down the Bell act. That is as clear cut as it can get. It was a most extraordinary deal that occurred here between the Commonwealth Liberal government and the state Liberal government.

It is worth pointing out that the Attorney-General portfolio is not your average or garden portfolio. It has a responsibility—in fact, a range of responsibilities—that sets it above all other portfolios, because the Attorney-General is the primary law officer of this nation, and as the first law officer of the Commonwealth the Attorney-General is the person who ensures that the rule of law is upheld in Australia. If the Attorney instructed the then Solicitor-General not to run the strongest argument at his disposal, the section 109 argument, against the Bell act in the High Court—and, remember, he did not deny doing that today—the Attorney has no option but to resign, and, if he does not resign, the Prime Minister has no option but to sack him.

To be clear, the Attorney-General's primary responsibility should have been to do everything possible to ensure that the Constitution of Australia was upheld. It is not his job to give effect to murky deals between the Commonwealth government and its Western Australian counterpart. We know there was a deal because Western Australian ministers have said, on the record, that there was a deal. The questions remain: who cooked up the deal; how was it cooked up; and, crucially for Senator Brandis, how was the deal given effect to? Again, the allegation in TheWest Australian is that Senator Brandis instructed then Solicitor-General Mr Gleeson 'not to run a particular argument in the High Court', and that allegation—the substantive allegation, the one that we have all been talking about over the last three days—was not explicitly denied by the Attorney-General in his statement. That is the biggest hole in the statement just given to this chamber by the Attorney.

The ATO, of course wanted to ensure that it acted in a way that would maximise its opportunity to receive the revenue it believed was due to it—in round figures, $300 million worth of potential revenue. Again unsurprisingly, the ATO thought it should not be in a position where it was bumped down the list of creditors, which was the effect of the Bell act. So of course the ATO was going to take this matter to the High Court, and, of course, as history shows, the Commonwealth, as Senator Brandis has confirmed today, did join that case.

But it does answer a question that has been puzzling many of us for some time, ever since the Attorney just prior to the election tabled the legal services direction, the controversial instrument that he tabled, that set himself up as a gatekeeper to the Solicitor-General: why on earth did he do it? It was never a reasonable response to the concerns raised by the then Solicitor-General, Mr Gleeson, in a letter he wrote to the Attorney-General in November last year. It was never a reasonable response to those concerns. But now we know. Now we know it was because the Attorney-General was annoyed and dissatisfied by the fact that the ATO went directly to the former Solicitor-General, Mr Gleeson, without going through the Attorney-General's office or the Attorney-General himself.

There are a number of questions that remain unanswered here. Did the Attorney really act to prevent agencies like, in this case, the ATO, from recovering potentially $300 million of funds that the ATO believed were owed to it? Remember, if money is owed to the ATO, it is owed to Australian taxpayers. This is taxpayers' money. Remember, the other effect of the Bell act was to prioritise the Western Australian government over and above private sector creditors in Western Australia who collectively were owed over $600 million by the Bell Group of Companies. Remember, in regards to the controversial legal services direction, which thankfully was disallowed by this Senate, the former Solicitor-General said during the recent inquiry that the Solicitor-General is independent and that independence is protected by statute, and the Solicitor-General has an important role in assisting the government to uphold the rule of law for the benefit of the whole community. Thank goodness someone had the rule of law front of mind during this matter—and that someone was former Solicitor-General Justin Gleeson, who clearly had the rule of law front of mind. What a shame that it does not appear that the Attorney-General had the rule of law front of mind. So it is no wonder that he tabled the controversial legal services direction.

Senator Brandis's statement has not gone anywhere near satisfying the Australian Greens. Notwithstanding Senator Brandis's statement, we still have significant concerns and, having heard that statement, we are even more certain than we were that there needs to be an inquiry into this matter by the Legal and Constitution Affairs References Committee so that we can shine the disinfectant of sunlight on this whole sorry, sordid saga. We need to get to the bottom of how the deal was cooked up and by whom and of how the deal was given effect to and by whom. Specifically, we need to hear not only from Senator Brandis but also from the ambassador to the United States, Joe Hockey, who has been absolutely towelled up by Senator Brandis in the Senate today, given a hospital handpass the likes of which I have never seen in my political career. We need to hear from Mr Mischin. We need to hear from Mr Nahan. We need to hear from Senator Cormann. We need to hear from Ms O'Dwyer. We need to hear from all these players. We need to hear from Commonwealth government officials and we need to hear from Western Australian government officials. There is a lot of work to be done to get to the bottom of this affair. Senator Brandis has come in here to try to clean it up, but he has only made it murkier with what he said today. As I said at the start of my speech, he has made a statement that is more notable for what it did not contain than for what it did. We will not rest until we have got to the bottom of this, and we look forward, we hope, to the concurrence of the Senate with our view that we need to refer to this matter to the Legal and Constitutional Affairs References Committee for an inquiry.