Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

I move:

That the Senate take note of the answers to questions to Senator Brandis asked by the opposition.

I had the pleasure the weekend before last of attending the 40th anniversary of my law school class. It was a reunion. We got together with all of those people who had been there on the day I graduated all those years ago. There were some people I had not seen for 40 years. Amongst them were some very distinguished jurists around the country. One of them, of course, was Jeffrey Goldsworthy, a professor of constitutional law at Monash University. At law school you learnt constitutional law, which was generally a first year subject. The first thing you learnt in constitutional law was about section 109 of the Australian Constitution. This is the section of the Constitution that refers to inconsistency between state and federal law. You may find circumstances where a state government might pass a law and the Commonwealth has an inconsistent law. How do you determine the issue between those two laws? The answer is section 109 of the Constitution. It says that if there is an inconsistency between a state law and a federal law, the federal law overrides the state law. I notice Senator Brandis is nodding at that assertion.

So the question I ask in relation to that lengthy and detailed statement, in Senator Brandis's words—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That is what Senator Wong said.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

She has obviously heard the statement too. The first question I would ask Senator Brandis is, if he understood section 109—and I believe he did—why would he have said in his lengthy and detailed statement today:

… one of the options I considered … was that the ATO should not intervene in the proceedings.

If Senator Brandis understood section 109, he would have known automatically that the legislation that the Western Australian government purported to pass to overturn the ATO's entitlement to recover money from creditors was in breach of section 109 of the Constitution. So the question I would ask is: why did the chief law officer of this country, Senator Brandis, even contemplate not intervening in those proceedings?

Of course, we asked some questions of Senator Brandis in question time. We asked:

Did the Attorney-General discuss his view with anyone other than Mr Mills and Ms O'Dwyer? If so, who?

We did not get any answers to that question in question time, and we certainly got no answers in the lengthy and detailed response that Senator Brandis gave us earlier in the day. We want some answers to that question. I think the Australian people need the answers to that question.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

We do.

Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

Yes, Senator Bilyk is just right. We do need the answers to those questions. Then we asked another question of Senator Brandis: did the Attorney-General provide any instructions to the Solicitor-General, this Australian Government Solicitor or the ATO consistent with his view? Again, we got no answers to that question. Again, I say that we need some answers to these questions. We never got them in the lengthy and detailed response that Senator Brandis gave.

We know that the Western Australian government purported to pass these laws. They obviously thought they had a deal with the Australian government. As we now know, Ambassador Hockey had lengthy and detailed discussions with these people. But he is now in America; he is now our ambassador. We are asking sensible and straightforward questions of the Attorney-General as to what he knew and what discussions he had with particular individuals. I think the minimum this parliament owes to the people of Australia is to answer those questions. Those questions have been asked, they are on notice and we want some answers. (Time expired)

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

What absolute hypocrisy and much ado about nothing from those opposite. I listened very carefully to the Attorney-General this morning and clearly, unlike those opposite, I have actually read the material that the Attorney-General has tabled. As a Western Australian who has had more than a passing interest in looking at the Bell liquidation over the past 20-plus years, I actually fully applaud the Western Australian state government for taking action to finally finish this whole sad, sorry legacy of WA Labor's WA Inc. I see absolutely no reason whatsoever why the Western Australian government should not seek to get the money to go back to the taxpayers of Western Australia in a deal that I understand would have involved the ATO also getting money back.

But the issue is this: after 20 years, who are the only people who have benefited from this? It has cost the WA taxpayers over $200 million through the Insurance Commission of Western Australia. It was a $200 million cost to the Australian taxpayers. The only people to date who have benefited from this are the lawyers. Over 20 years, the lawyers have been paid hundreds and hundreds of millions of dollars. Of course, this is an intractably difficult case that is highly likely never to be solved, so the only people who will keep benefiting from this are not the taxpayers of Western Australia and not the Australian Tax Office but instead the lawyers involved in this case. That is the first thing. I absolutely applaud the state government's initiative to get the money back for the people of Western Australia.

Listening to the Attorney-General's statement and also to the letters that were tabled today, I think the Attorney-General has actually answer the questions next door. Let us actually have a look at the facts and not the straw men that those opposite are now trying to build pretty much out of nothing. The evidence that has been tabled so far suggests this: on 13 April last year, Mike Nahan wrote to the federal Treasurer providing advice, advising the federal Treasurer that they were going to take this course of action in the High Court and the reasons for it. On 29 April, the federal Treasurer wrote back to Dr Nahan noting the advice and the Western Australian position. There was absolutely no hint of a deal whatsoever in either of those letters and, in fact, the letter from Mike Nahan seems almost pleading, saying that the officials stand ready to provide further information.

In the last paragraph of the federal Treasurer's letter, if anyone actually bothers to read the letter that was tabled, Mr Hockey says this:

Given the significant nature of the proposed course of action, I urge the Western Australian government to ensure that the utmost probity is evidenced throughout the process so as to ensure that Australia remains and continues to be seen as an attractive destination for foreign investment.

That is hardly a nod and a wink for a secret deal, which appears in none of the correspondence at all.

What was the next action? On 26 November, the WA Bell Act came into force. The next day, on 27 November, Bell creditors commenced proceedings in the High Court to challenge the constitutionality. Neither the Commonwealth nor the ATO were defendants in this High Court action. Then what happened? On 16 March, the Attorney-General had formed the view that it was not necessary for the Commonwealth to intervene in this matter because the ATO had already indicated that they were going to intervene in the matter. Guess what? The Solicitor-General of this country was actually representing the ATO. So in March the ATO intervened and the Commonwealth, as I said, decided not to have a representative because they believed the Solicitor-General representing the ATO was sufficient representation.

The High Court issued a notice to the Commonwealth and states inviting the Commonwealth to intervene formally, because it was not automatic. The Attorney-General, as he said, did not initially think it was necessary because the Solicitor-General was already representing the ATO and the Commonwealth in that matter. However, a fact that those opposite have conveniently forgotten and not commented on is that the Solicitor-General provided advice to the Attorney-General to say that the Commonwealth should join in addition to the ATO. The Attorney-General accepted the advice of the Solicitor-General, Mr Gleeson. So the Solicitor-General then represented both the Commonwealth and the ATO.

This was at the Solicitor-General's advice that he could represent both and the Attorney-General agreed. On 30 March, the Commonwealth then gave notice that they would be intervening in the proceedings. On 4 April, the Solicitor-General advised the Attorney-General that there would be no resolution. There would be no resolution with the state of Western Australia, with the government or with the WA solicitor. Far from being a conspiracy of secrets, there are none here to be had. (Time expired)

Murray Watt (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I spoke earlier this afternoon about the growing scandal that we see enveloping the Attorney-General, Senator Macdonald and various other ministers within this government. It really is a sign of how big this scandal is that the best Senator Brandis can do is rely on Senator Macdonald to run protection for him. If there was anyone you would ever want to run protection for you, I think Senator Macdonald would be at the bottom of the queue. It was very noticeable during question time that there was only one person speaking up in defence of Senator Brandis and that was Senator Macdonald. The most disgraced and ridiculous senator that this chamber has ever seen was the only person who was prepared to stand up for Senator Brandis.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Senator Brandis?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Madam Deputy President, if I may say so, for a new senator who has been in this chamber for a matter of a couple of months to reflect in that insulting and personal way on the Father of the Senate is surely out of order. Senator Watt ought be brought up and taught, frankly, how to behave like a senator.

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

On the point of order, the so-called Father of the Senate behaves in the most insulting manner in this chamber and elsewhere. Senator Macdonald is not deserving of the title.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Senator Watt, I remind you and all other senators that personal reflections are disorderly.

Murray Watt (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Madam Deputy President—I am certainly someone who respects their elders, and I was only following the lead of Senator Macdonald in the way that I referred to other senators in this chamber. I am sorry the Attorney-General took offence at that.

What we saw in the Attorney-General's statement earlier today was an unbelievable act of throwing former Treasurer Joe Hockey under the bus. The Attorney-General did it not once, not twice, not three times—he did it 19 times over the course of half an hour. The name 'Hockey' was mentioned on average about once every 60 seconds, in a desperate attempt by the Attorney-General to distance himself and others serving ministers of this government from this terrible scandal. Not only has Senator Brandis thrown a former trusted colleague under the bus, but we then, in one of the last questions of question time, also had Senator Cormann, a Western Australian senator and the Minister for Finance, who must have known about this deal, desperately trying to distance himself from this deal. Not content with throwing Joe Hockey under the bus, Senator Cormann decided to throw his Western Australian Liberal colleague Mike Nahan, the Treasurer, under the bus.

Mike Nahan has previously been on the record in the Western Australian parliament saying that the Assistant Treasurer, Kelly O'Dwyer, gave direction or advice to the Australian Taxation Office. Unfortunately, he was interrupted midway through that answer, but it was very clear that he was talking about Ms O'Dwyer giving direction or advice to the ATO to not get involved in this legal action, and that the ATO acted 'contrary to that direction or advice'. The finance minister, Senator Cormann, was quite happy to throw Mike Nahan under the bus, and it will be very interesting to see what Mike Nahan has to say about that. You would wonder why a Western Australian Treasurer would be willing to go on the record and say what arrangements existed between the Assistant Treasurer and the ATO. Now we have Senator Cormann saying, effectively, that Mike Nahan made that up. I would be very interested to hear from Mike Nahan about what actually happened and what discussions actually occurred between ministers in this government and statutory agencies, because it is very clear that we are not going to get answers from the senators and ministers who appear in this chamber.

The other thing that has been very notable over the course of the debate on this matter today is the enthusiasm that Western Australian senators have for jumping up and defending this deal. This demonstrates, so obviously, that this deal was about an arrangement to try to overcome the ongoing complaints that Western Australia has about GST distribution. We have had Western Australian senator after Western Australian senator get to their feet and defend this deal as recognising the fact that—in their minds—Western Australia gets a bad deal through GST distribution, and this was a way of rectifying that. As a senator from Queensland, I would be very interested in knowing what kind of arrangements are being made with the Queensland government to recognise its GST needs. What arrangements are being made with New South Wales, with Tasmania, with South Australia—or is it only Western Australia that gets a special deal from the—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Nothing to do with GST.

Murray Watt (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

You said that you were not aware of whether it had anything to do with GST. Now you are telling us that it does not. It would be very good if you could make up your mind, Senator Brandis, which one it is. Yet again, we see you shifting your position constantly.

The other thing that the Attorney-General has never been very keen to talk about here is the growing evidence that this is clearly linked to his direction given to the Solicitor-General. We have known all along that this was a fishy situation. We now know that 4 March this year is when, the Attorney-General tells us, he was made aware of the intention of the ATO to challenge this litigation and he was made aware that the Solicitor-General was involved. At no point up until 4 March had there been any discussion about the need to issue a direction constraining the Solicitor-General, and—what do you know?—a few weeks later the Attorney-General decides to issue a direction. It is very clearly connected.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I have to compose myself after that comedy speech. It was curiously humorous. Madam Deputy President, do not worry about defending me from that vicious personal attack from the previous speaker. It does not worry me at all. I guess the fact that I pointed out in my last speech that he was just a failed union hack, thrown out of the state parliament by the good voters of Queensland—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

He's an ambulance chaser.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I do not want to say 'ambulance chaser', Senator Brandis. He was an adviser to the Bligh government, which just shows what little regard the previous speaker had. But I do not want to enter into personalities. The things he throws at me just roll off my back.

What is humorous about this debate is that it has two origins that I think are important for the Senate to understand. Senator Brandis has been through it in a very detailed fashion—a fashion that was uncontested in all of the silly questions that were asked by the Labor Party at question time. The genesis of this attack on Senator Brandis comes from back in the days of the crook—the Labor Party criminal, the Labor Party Premier of Western Australia, a criminal who ended up in jail—who oversaw the Bond WA Inc. disaster. There are four senators in this chamber from Western Australia from the Labor side, and not one of them was prepared to ask a question or speak on this debate. By contrast, two of the Liberal senators from Western Australia have participated. I think the Labor Party senators do not want to be reminded of the crook, the Labor Party Premier of Western Australia, who ended up in jail. He was a bit like Gordon Nuttall, the Labor Party minister from Queensland—no doubt known to the previous speaker in his time as an adviser to the Bligh government—who ended up in jail for bribery. He is still there, as far as I know. He is in jail in Queensland with two or three other Labor Party luminaries serving sentences. That is one of the things. Western Australian Labor senators do not want to raise it, because it draws attention to the criminal Mr Burke, the Labor Party Premier who ruled in Western Australia in conjunction with Mr Bond all of those years ago.

This wet lettuce leaf attack on Senator Brandis that the Labor Party is fixated about all comes about by this inquiry into the Solicitor-General, Mr Gleeson, which the Labor Party and Greens set up with the pure intention of getting rid of Senator Brandis. That was never going to happen. What happened? How did it end up? The Labor Party and Greens initiated this inquiry and as a result of it they oversaw the resignation of the Solicitor-General, the man that Mr Dreyfus, the Labor Party Attorney-General, in the dying days of the Rudd-Gillard-Rudd government appointed as the Solicitor-General. We know from the evidence at the inquiry that the Solicitor-General was speaking with Labor Party politicians during the caretaker period and not reporting that, as he is required to. We wonder about that. Labor had an attack on the Attorney-General but they succeeded in destroying the career of their mate the Solicitor-General.

The Labor Party continue the same problem. They have confected this issue over the Bell case. The Attorney-General in a very clear and detailed statement explained that fully, clearly and without any serious question by the Labor Party this afternoon or at question time. I say to the Labor Party: forget your fixation on the Attorney-General. He is going to be here for a long period of time. I know you do not like him, because he is so good—he handles questions so well and he leads the government in the Senate so well—but give it up because every time you confect these problems you end up killing your own people. Take the lesson from that and remember Western Australia Inc. (Time expired)

Jenny McAllister (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Like a TV sitcom that has gone on for far too long, Senator Brandis keeps coming up with storylines that are barely credible. This government has now jumped the shark. It is not credible, for example, that there was no arrangement between the Western Australian government and the Commonwealth government. It flies in the face of the voices in the Western Australian government that were quoted in The West Australian newspaper over the weekend. What did we hear from Mike Nahan? He believed he had won Commonwealth support for the Western Australian legislation in a verbal and written agreement. That is what the paper on the weekend quoted him as saying. Those are the facts that are on the table. I have not heard anyone repudiate that that was the belief of the Western Australian government.

It seems awfully convenient that the only person who could possibly have been a party to this agreement is the former Treasurer, who happens to be in the United States. It is very convenient. Mr Hockey was the one who did it all apparently, if we are to believe the statements made this morning, but he is not here to defend himself. The Minister for Finance was asked questions about this in question time and he claimed he was unaware of this agreement. I find those claims extraordinary. We have become quite used to seeing the Attorney-General play the pedant but we had the unedifying sight this afternoon of the finance minister forced to split hairs about the definition of an 'arrangement' to cover for the incompetence of 'Calamity' George.

He keeps pointing to the evidence that is on the record rather than commenting on what actually happened. These are not the same things. The letters that have been tabled in this place are not the extent of the arrangement if we are to believe the evidence of the Liberal Party in Western Australia. What did Colin Barnett say? What was he quoted in the paper last weekend as saying? He said:

We always knew it was a fairly high-risk strategy, but we needed to have a go and we were relying on the Federal Government to be supportive, which they were, but then the ATO went their own way …

Those are the facts that need to be addressed, not the facts laid out in a letter drafted in appropriate language to cover the situation by members of the government. What needs to be addressed are the claims that have been put on record in The West Australian by some very good investigative journalists doing their job.

I come back to the finance minister. There are really only two options for Senator Cormann: either he was involved in this tricky plan cooked up by members of the government or—and this is perhaps even more extraordinary—he was left out of the loop on a decision that was worth $300 million to the Commonwealth budget. So the evidence this afternoon from the finance minister that he knew nothing about it or indeed that there was no arrangement at all does not stand up. It does not stand up because there are facts other than the letters that have been tabled here that suggest that there was an arrangement. There most certainly was an arrangement between members of this government and members of the Western Australian government. What remains to be examined is: who was aware of it and who was involved? These are questions that members in this place have refused to answer during the time allocated to questions.

The Attorney-General has also continued to refuse to answer basic questions. The address this morning raises many more issues than it settles. I note the Attorney-General's attempts in question time this afternoon to draw a very careful distinction between instruction and direction. I am sure it suits the Attorney to talk about instruction rather than direction because instruction is a narrow process provided from a client to counsel. The Attorney is able, as I understand it, to say that, because the client in this case was the ATO and because the Solicitor-General was the counsel, then there was no logical way that the Attorney-General could have instructed the Solicitor-General to do anything. However, that is not what the questioning was about. The questioning was in fact about what the Attorney asked the Solicitor-General to do, what other members of the government asked the Solicitor-General to do and what other members of the government asked the Attorney-General to ask the Solicitor-General to do. We want to understand what it is that took place in trying to direct individuals in the conduct of this case before the High Court. These questions are all outstanding and they need to be answered in this chamber.

Question agreed to.