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

My question is to the Attorney-General. Attorney, this question relates to your statement today, regarding the Bell act. I will preface it by saying that you have been very clear that you did not instruct the Solicitor-General on behalf of the ATO, but for the avoidance of doubt this question goes to your instructions to the Solicitor-General on behalf the Commonwealth, which, as you have acknowledged, is a separate legal entity. So, Attorney, did you instruct the Solicitor-General on behalf of the Commonwealth not to run a particular argument in the High Court in regards to the Bell act case?

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

Senator McKim, you are right. My instructions to the Solicitor-General were on behalf of the Commonwealth of Australia. As I pointed out in what Senator Wong acknowledged to be a very lengthy and detailed statement to the chamber earlier in the day—

Opposition Senators:

Opposition senators interjecting—

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

My initial instinct was that the Commonwealth did not need to intervene because, as I said, this was a revenue case between the ATO and the Western Australian government. Nevertheless, I did have a discussion with the Solicitor-General. I do not waive the Commonwealth privilege in relation to what may or may not have passed between us during the course of that discussion. I recall that, in his appearance before the Senate Legal and Constitutional Affairs References Committee last month, the Solicitor-General—if my memory serves me correctly—was also at pains to say that he did not waive the Commonwealth privilege either. Suffice it to say: we had a discussion. We had a discussion about whether or not the Commonwealth of Australia should intervene because of the issue—

Stephen Parry (President) Share this | Link to this | Hansard source

A point of order, Senator McKim?

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

In regards to relevance and in an attempt to assist the Attorney, the question was not in relation to an intervention or whether the Attorney believed the Commonwealth or anyone else should intervene. The question was about his instructions to the Solicitor-General as to what arguments should be run in the relevant case. It was not around intervention; it was around what arguments should be run, which is a different question.

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

Well, Senator McKim, I cannot, nor could the former Solicitor-General, disclose that conversation between us. I cannot, Senator McKim, as you will know, without waiving the Commonwealth's privilege in the confidentiality of its legal advice. You know that—you have been a minister in a government. I am not at liberty to do that and I do not. But, Senator McKim, if you care to examine the Commonwealth's submissions that were settled by Mr Gleeson, they deal with the very issue, which he persuaded me we ought to intervene on, namely the Corporations Act issue.

Stephen Parry (President) Share this | Link to this | Hansard source

Senator McKim, a supplementary question.

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

No-one is disputing that, Attorney. The question is: what were your instructions to the Solicitor-General? You said you cannot waive legal privilege on this matter. Attorney, given you are actually a serial waiver of legal privilege when it suits you politically to do so, will you now waive legal privilege, as you are entitled and have the right to do, and reveal whether or not you instructed Mr Gleeson not to run a particular argument in the High Court?

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

Senator McKim, I do not waive the privilege, because I do not think it is appropriate. But I think I can answer your question, Senator McKim. The Solicitor-General was of the view, as I said in my detailed statement, that it was not enough for the ATO to be defending the Commonwealth's interests in relation to what we have called the revenue point, but also that it was necessary for the Commonwealth of Australia to intervene in the event that it became necessary to argue the Corporations Act point. I accepted his advice and I gave him those instructions.

Stephen Parry (President) Share this | Link to this | Hansard source

Senator McKim, a final supplementary question.

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

That is not the question I asked you, Attorney, but I will couch it in another way, one that is not covered by legal privilege. Did anyone from the Commonwealth or the Western Australian government ask you to give instructions to Solicitor-General Gleeson not to run a particular argument in that High Court case?

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

Senator McKim, that is just not the way it works. That is just not the way it works. When you instruct a barrister, you have a discussion with the barrister about the case, and of course Mr Gleeson and I had a discussion about the case. Mr Gleeson in particular, as I said in my detailed statement, had a very strong view that the Commonwealth should argue the Corporations Act point, or be in a position—let me express myself more carefully—to argue the—

Stephen Parry (President) Share this | Link to this | Hansard source

Senator McKim, a point of order?

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

Yes. We have dealt with this issue already in the substantive question I asked—at least, we have dealt with it in the question, not the answer. This particular supplementary question does not go to anything that occurred between Senator Brandis and Mr Gleeson. It goes directly to whether anyone from the Commonwealth or Western Australian governments asked the Attorney-General to instruct the Solicitor-General not to run a particular argument in the High Court.

Stephen Parry (President) Share this | Link to this | Hansard source

Senator McKim, on the aspect of relevance, which is what I am here to adjudicate on, the Attorney-General indicated that it does not work like that. That was his opening line, and the Attorney-General is continuing his answer.

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

So, Senator McKim, what Mr Gleeson came to me—and I am paraphrasing, of course—to urge upon me is that he should be instructed to raise the question of sections 5F and 5G of the Corporations Act, which was an issue that was canvassed in the statement of claim, and I gave him the instructions he sought.

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

My question is to Senator Brandis, the Minister representing the Prime Minister. I refer to a senior cabinet minister who says, and I quote: 'He is more than infuriated and truly over having to act like he has confidence in him.' Is the Prime Minister confident that the current controversy was caused by the Attorney-General alone?

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

Through you, Mr President: Senator Gallagher, when you talk about a 'current controversy', I take it that that is an intended reference to the Bell litigation, which was the subject of my statement to the Senate this morning.

What I have given is a very thorough account of all of the events in relation to that litigation—a statement of over 30 minutes, I might say—in which every step, every detailed step, in the course of this matter was addressed. And, Senator Gallagher, I have nothing to add to that statement.

Stephen Parry (President) Share this | Link to this | Hansard source

Senator Gallagher, a supplementary question.

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

I refer to the Western Australian Treasurer, Dr Mike Nahan, who has indicated that former Treasurer Hockey, Minister Porter and Minister O'Dwyer were all aware of the agreement between the Liberal and National federal government and the Liberal Western Australian government. Isn't it clear that the Attorney-General is not the only minister guilty of circumventing proper process for partisan political interests?

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

I reject that entirely in relation to either myself or any of my ministerial colleagues—far from it. What we did, Senator Gallagher, as I pointed out in the detailed statement, was engage with the Western Australian government after it was drawn to Ms O'Dwyer's and my attention that there had been dealings between Mr Hockey and Dr Nahan, which were referred to in their exchange of correspondence in April 2015. Now, Senator Gallagher, when we were made aware of that fact, we engaged with the Western Australian government. I have not seen Dr Nahan's statement, but I know that the Western Australian ministers had a view as to the effect of their discussions with Mr Hockey, and that view is their view; it is not the Commonwealth's view.

Stephen Parry (President) Share this | Link to this | Hansard source

Senator Gallagher, your final supplementary question.

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

Given that several of his senior ministers knew about this agreement, when and how did the Prime Minister first become aware of the agreement?

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

I take it that this is an intended reference to the exchange of correspondence between Dr Nahan and Mr Hockey of April 2015. As I was at pains to point out in my lengthy and detailed statement not once but twice, in my view that letter neither constitutes not evidences an agreement. But I do know that Dr Nahan and Western Australian ministers have expressed a different view.

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

When did the Prime Minister know? When did the Prime Minister know?

Stephen Parry (President) Share this | Link to this | Hansard source

Order!

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

Mr President, may I speak on indulgence—

Stephen Parry (President) Share this | Link to this | Hansard source

Yes. You have 17 seconds.

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

because we know that the opposition lives in the era of post-truth politics and anything may be misrepresented—

Senator Wong interjecting—

As I said in my statement—

Stephen Parry (President) Share this | Link to this | Hansard source

Attorney-General, the time for answering the question has expired.