Opening statement
Thank you Madam Chair, I do have an opening statement I wish to
make.
The Attorney-General’s Department has a ‘portfolio’ interest in
relation to constitutional law and policy which covers constitutional
litigation and advice. Constitutional work is tied generally to the
Department and AGS by the Legal Services Directions made under
the Judiciary Act 1903.
The Office of Constitutional Law in the Department provides advice
and assistance in relation to a wide range of constitutional and
federal issues, including in relation to constitutional litigation.
The Australian Government Solicitor handles all constitutional cases
in which the Attorney-General intervenes and virtually all other
significant constitutional cases where the Commonwealth or a
Commonwealth agency is a party. The Australian Government
Solicitor also provides legal advice, including on constitutional issues,
to clients across the Commonwealth.
Section 78A of the Judiciary Act allows the Attorney-General to
intervene on behalf of the Commonwealth in any proceeding in any
court that raises any issue involving the Commonwealth
Constitution. Section 78B of the Act requires that the AttorneyGeneral (and State and Territory counterparts) be given notice of any
such proceeding.
Under general arrangements approved by successive
Commonwealth Attorneys-General, 78B notices are handled in the
first instance by AGS in consultation with the Solicitor-General and
the Office of Constitutional Law. Hundreds of 78B notices are
received each year.
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In significant cases the Office of Constitutional Law puts a submission
on the question of intervention to the Attorney-General based on
AGS advice and consultation with any agency having a nonconstitutional policy interest.
The current Inquiry relates to a challenge to the constitutional
validity of an Act passed by the WA Parliament: the Bell Group
Companies (Finalisation of Matters and Distribution of Proceeds) Act
2015 (WA Bell Act).
On 27 November 2015 the first constitutional challenge to the WA
Bell Act was commenced in the High Court.
On 1 December 2015 notices of the constitutional matter were
issued to attorneys-general under section 78B of the Judiciary Act.
Two further constitutional challenges were subsequently
commenced.
On 28 January 2016, following consultation with the Treasury and
the Australian Taxation Office, the Department provided a
submission to the Attorney-General on the question of intervention
in the High Court proceedings.
On 8 March 2016 the Commissioner of Taxation filed an application
for leave to intervene in the proceedings, together with submissions
that the WA Bell Act was inconsistent with Commonwealth tax law
and therefore invalid.
On 30 March 2016 the Attorney-General intervened to put
submissions about the operation of the federal corporations scheme
and Chapter III of the Constitution.
The three challenges were heard by the High Court between 5 and 7
April 2016.
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The Solicitor-General appeared for the Attorney-General and the
Commissioner of Taxation. AGS was the solicitor on the record for
both the Attorney-General and the Commissioner.
On 16 May 2016 the High Court decided unanimously that the WA
Bell Act was invalid by reason of inconsistency with Commonwealth
tax law.
Office of Constitutional Law
The Office of Constitutional Law was for reasons already outlined
closely involved in the conduct of these proceedings for the
Commonwealth.
The head of the Office, James Faulkner SC, is unable to attend before
the Committee today due to his close involvement also with the
Senate reference to the High Court in relation to the qualifications of
Senator Culleton. That matter is being heard today by the Full Court
of the High Court sitting as the Court of Disputed Returns.
Australian Government Solicitor
As I have noted, the Australian Government Solicitor – which since
1 July 2015 has been consolidated into the Department – provided
legal advice and litigation services to the ATO and Attorney-General
in relation to the interventions in the High Court proceedings. I will
return shortly to address the implications of this legal adviser role for
AGS’s participation in this inquiry.
Legal advice and public interest immunity
On Friday 2 December, I received an invitation to attend today’s
hearing together with Mr Faulkner. Ms Louise Vardanega, as the
then Acting Australian Government Solicitor, similarly received an
invitation to attend together with Mr Gavin Loughton.
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On Monday 5 December, I responded formally to the committee’s
invitation to advise – consistent with Paragraph 2.8.2 of the
Government Guidelines for Official Witnesses Before Parliamentary
Committees and Related Matter (Government Guidelines) – that
Mr Faulkner and Mr Loughton would be unable to attend due to
their involvement in the Culleton matter.
I also outlined a number of other issues in asking the committee to
reconsider the Committee’s invitations to the Department and AGS
to appear at this time. Starting first with the Department I elaborate
on those concerns:
 The Department has not had the opportunity in the very short
time provided to comprehensively review all documents held
relevant to this matter. The matter generated complex litigation
files.
 This inquiry is expressly concerned with litigation; the
Department’s role as legal advisors to the government in relation
to constitutional litigation inevitably raises questions of public
interest immunity. Since the committee’s invitation on Friday, the
department has not had time to consult with the relevant parties
to these issues, including the Attorney-General (who is currently
out of the country on official business) on such issues.
 Accordingly, in accordance with Part 4.5 of the Guidelines for
Official Witnesses, it will not be appropriate to comment on
advice given to government without allowing the
Attorney-General an opportunity to consider whether any public
interest claim should be made.
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 Part 4.8 of the Guidelines for Official Witnesses state:
‘Legal advisers owe a duty to their clients not to disclose the
existence or content of any advice. It would therefore be
inappropriate for any official who has provided legal advice to
government, who has obtained advice from an external lawyer
or who possesses legal advice provided to another agency, to
disclose that advice’ (Paragraph 4.8.1).
‘Where an official has been asked a question about the content
of legal advice, it may be appropriate to advise the committee
that such information might properly be subject to a public
interest immunity claim and refer the question of disclosure to
the responsible minister…’ (Paragraph 4.8.2).
Similar concerns arise for AGS, but with some additional specific
features. AGS – while part of the Attorney-General’s Department –
performs a distinctive role as lawyers to the government. Its work in
relation to the High Court interventions was solely in this capacity of
legal adviser and legal representative. It acted at all times in the
capacity of professional legal adviser to government clients. This
gives rise to a number of considerations:
 As I have just set out, the Guidelines for Official Witnesses make
clear it would not be appropriate for AGS to disclose any advice
without the informed prior approval of its clients, so as not to
compromise any public interest immunity claims that those clients
may wish to make.
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 Accordingly, before AGS could respond to any request for
information it would seek the opportunity to consult with its
clients about the specific request. This may require consultation
with both the Attorney-General and the Commissioner, and
include officials in the Department and ATO.
 In those circumstances, to the extent that the Committee seeks
information about AGS’s work for its clients, it is appropriate that
the information be sought directly from the clients themselves,
not from AGS. This is because it is the client, not the lawyer, which
has the particular privilege interest which may give rise to public
interest immunity claims.
 More broadly, the concern for client confidentiality which is
recognised in the guidelines reflects an underlying concern for the
integrity of the lawyer-client relationship. The trust and
confidence which clients place in their lawyers is essential to the
maintenance of the lawyer-client relationship. AGS is concerned
not to take any steps which may be seen by its clients, both in this
inquiry and more broadly, to be inconsistent with that
relationship.
 As explained, this is best secured by seeking information from the
clients themselves, not creating risks in the lawyer-client
relationship by seeking it from AGS. Again, were information to
be sought directly from AGS it would wish to undertake careful
consultation with its clients to ensure that the client relationship
was not damaged.
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