Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download PDFDownload PDF 

Previous Fragment    
Legal and Constitutional Affairs Legislation Committee
28/02/2017
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Attorney-General's Department

Attorney-General's Department

CHAIR: We have an apology from Senator Brandis, who, I am told by Senator Scullion, will be here between 8.30 and nine. We welcome Minister Scullion, who will take on the role for the first part of this, and Ms Jones, the deputy secretary, in the secretary's absence at a cabinet meeting. We are going to deal with the Attorney-General's Department, cross-portfolio, corporate general, and group 1.

Senator WATT: We were intending to spend a fair bit of this session this evening asking questions of the Attorney-General regarding the Bell Group matter, and we have been flagging that all day. So it is a little disappointing that we only learned just before the dinner break that he would be unavailable. Hopefully we will still have an opportunity to ask some questions on that important matter before the night is out. But, Mr Anderson, you were at the hearing into this matter that occurred on 17 February, among others.

Mr Anderson : Yes.

Senator WATT: You will recall that there were a very large number of questions that opposition senators asked you or other departmental or Australian Government Solicitor officials about this matter. I might say we found it quite surprising that, for instance, we were not able to ask departmental officials whether they had participated in meetings with their minister, which is a fairly common question to ask at estimates or other hearings.

Senator WONG: Can I just stop you there. Can you explain to me on what possible basis you refuse to answer at estimates or at a Senate committee a simple question such as that—that is, whether or not you had a meeting with the minister and when? I have to say I have been here a fair while. I have asked a lot of questions. I have never heard something so ridiculous.

CHAIR: Is that a question of Mr Anderson about now, not about—

Senator WONG: It is a question of him: what is the basis—

CHAIR: We are dealing with the 2016-17 estimates. If you ask that question directly to Mr Anderson now, about this hearing or about the Bell Group—

Senator WONG: We can go through it again. We can ask the same question and he can give us an answer.

CHAIR: Senator Wong, please let me finish.

Senator WONG: Chair, would you let us ask some questions?

CHAIR: Well, you are not asking questions.

Senator WONG: This filibuster has been going since 9 am.

CHAIR: Senator Wong, please. I am—

Senator WONG: It is 11 hours. We just want to ask some questions. We are democratically elected and allowed to do that. I know you might not like that—

CHAIR: Providing it is related to these estimates, Senator Wong.

Senator WONG: No. Point of order, Chair—

CHAIR: What is the question?

Senator WONG: That is an incorrect ruling. It is not provided it relates only to this estimates. If that were the case, you spent three hours today, or 2½ hours, asking Professor Triggs questions about a past case that had already been canvassed at a previous hearing.

CHAIR: That is not a point of order, and it is quite different. But I am not going to argue with you. What is your question? Can you please ask Mr Anderson a question.

Senator WATT: Mr Anderson, my question is: are you now in a position to answer any of the large number of questions that were taken on notice on 17 February?

CHAIR: Why don't you ask Mr Anderson those questions, because we are not referring to another hearing.

Senator WONG: Point of order, Chair. He asked the question. The witness ought to be allowed to answer it. That question is perfectly in order.

CHAIR: It cannot relate to some questions that were—

Senator WONG: That question is perfectly in order. It has been asked. On what basis—

CHAIR: Senator Wong, please don't try to shout me down.

Senator WONG: That question is perfectly in order.

CHAIR: I am sorry—I am the judge of that.

Senator WONG: Yes, and everybody knows what sort of judge you are.

CHAIR: What I am saying is—

Senator WONG: On what basis is that question not in order?

CHAIR: What I am saying is—

Senator WONG: On what basis is that question not in order?

CHAIR: If the question is asked 'ab inito' here, please answer it.

Senator WONG: I don't know what 'ab inito' is.

Senator WATT: Is that a kind of Mexican—

CHAIR: If it refers to a question that was asked in another committee and the rest of us are expected to know what it is, then it will not be allowed. But, if you would like to ask the question 'ab inito', go ahead and do it.

Senator WATT: I think you mean 'ab initio', Chair.

CHAIR: Well, in your flash law school, that might be how you pronounce it. It is not how I pronounce it.

Senator WATT: I think in most law schools.

CHAIR: That is okay.

Senator WATT: You would be old enough to have done Latin.

Senator WONG: Senator Watt has asked a question, which was—

CHAIR: Did you indicate that I am 'old enough' to do something, Senator Watt?

Senator WATT: I am trying to ask a question.

Senator WONG: I don't care how old anybody is.

CHAIR: No, but Senator Watt apparently does have an issue with people who are older.

Senator WATT: I am trying to ask a simple question, which is whether—

CHAIR: Well, ask the question.

Senator WATT: I am trying.

Senator WILLIAMS: You are very trying!

Senator WONG: Come on, Wacka! Even you have got to be embarrassed by it—seriously!

Senator WATT: Do I have the call? Mr Anderson, opposition senators asked a large number of questions about the Bell matter on 17 February. We obtained very few answers on that day from you, from Mr Faulkner, from Mr Loughton, from anyone, because we were constantly met with claims—

CHAIR: Do you have a question?

Senator WATT: We were constantly met with claims that those questions may be subject to public interest immunity. I am asking you: given the time that has elapsed, are you now in a position to answer any of those questions?

Mr Anderson : No. The committee gave us until 3 March to answer the questions on notice.

Senator WATT: That of course does not preclude you from answering those questions beforehand.

Mr Anderson : No, that is correct. We do not have answers to those questions here tonight.

Senator WATT: One of the questions that I asked on 17 February related to some documents that were obtained under a freedom-of-information application made to the Solicitor-General. Those documents included emails that had been sent between, from memory, staff in the Attorney-General's office and staff in the department, referring to a meeting that had occurred on 4 April 2016. The implication from those emails was that that meeting had been quite heated. We know from previous evidence to this estimates and to the Bell hearing that there was a meeting that occurred on that date involving the Solicitor-General. I asked whether Mr Loughton was present at that meeting and was told that he could not say whether he was at a meeting with the Attorney-General because he would have to go back and consult with the Attorney-General on whether he could answer that. So you are still not in a position to answer? No-one is in a position to tell us whether a departmental official attended a meeting with the minister on that date?

CHAIR: Can you ask the question: did a departmental officer attend a meeting on that day?

Senator WATT: That was a question. There was a question mark at the end of that. Are you still not in a position to answer? Is no-one here tonight in a position to advise the committee whether they were present at a meeting with the Attorney-General on 4 April 2016?

Mr Anderson : We did go through this for over two hours on 17 February. A number of questions were asked—

Senator WATT: We did not get many answers.

Mr Anderson : A number of questions were answered. But, where questions were taken on notice on the ground that we needed to refer the questions to the Attorney-General for consideration as to whether a public interest immunity claim should be made, that remains the case for those questions.

Senator WONG: Could you just explain to me what the public interest immunity claim is in relation to the attendance of an officer bound by the code, whose salary is paid by taxpayers, attending a meeting with his or her minister?

CHAIR: You will take that on notice, I assume?

Senator WONG: No. I am asking a direct question. It is up to the officer, not the chair, to take a question on notice, with respect.

CHAIR: Well, he has taken that on notice before, for the same reason.

Senator WONG: No, it is a different question. Would you please respond to the question?

Mr Anderson : It would be helpful if you were to have a look at the transcript from 17 February, because we did go through this in some detail.

Senator WONG: I am asking it now. We have had hours today of people re-traversing things. I would like to know the answer. What is the basis of the public interest immunity claim, including in these estimates, in relation to the attendance or otherwise of an officer bound by the APS code at a meeting with their minister?

Mr Anderson : As you will appreciate, some of the officers of the Attorney-General's Department operate in their capacity as legal advisers, so—

Senator PRATT: That is not a ground.

Senator WONG: That is not a ground. That goes to content, not presence.

CHAIR: Please let the witness finish his answer.

Senator WONG: That would go to content.

CHAIR: Senator Wong and Senator Pratt, please let the witness answer the question you have asked.

Senator WONG: Chris Moraitis, you should be ashamed that you are putting them in this position—utterly ashamed. It is extraordinary.

CHAIR: Mr Anderson, would you please continue.

Senator WONG: We will be taking this to the Senate. It is extraordinary that you would allow this. You are a PSM and a secretary.

Senator Scullion: Chair, if I can take a moment, I have been advised that the public interest immunity claim is a matter that can only be considered by the minister. It is not appropriate that we have an official being asked—

Senator WONG: It is completely inappropriate.

Senator Scullion: to explain a public interest immunity claim when it is actually—

Senator WATT: No, Senator Scullion—

Senator WONG: That is not what I asked.

Senator WATT: We have obtained advice, because we knew this was going to happen—

CHAIR: Order! Senator Wong, I want you to withdraw that imputation against Mr Moraitis, for a start.

Senator WONG: I maintain it. He ought not as secretary allow officers to be put in this position, where they are told not even to disclose whether they attended a meeting. It does not go to the content of legal advice. There is no basis—and I would have thought he would know it—for a public interest immunity claim. It is an appalling traducement—

CHAIR: That is an aspersion against Mr Moraitis and I ask you to withdraw it.

Mr Moraitis : If I may—

Senator WONG: Which bit do you want me to withdraw?

CHAIR: The imputation against Mr Moraitis.

Mr Moraitis : If I may—

Senator WONG: Which imputation?

Mr Moraitis : I have just arrived. I am trying to get around what the discussion here is. I understand it is about the meeting of 17 February. The public interest immunity—

Senator WATT: The fourth.

Mr Moraitis : Is that correct?

Senator WATT: There was a meeting that occurred on 4 April. This issue was canvassed on 17 February.

Mr Moraitis : The PII issue, I understand, relates to the fact that some of the officers you referred to as departmental officers are actually AGS officers. Australian Government Solicitor officers have a lawyer-client relationship with the Australian Taxation Office and with the Attorney sometimes.

Senator PRATT: That is not a ground for public immunity interest.

Mr Moraitis : The AGS's approach is that they would like to consult with the minister and the client, in the case of ATO, as to the nature of the PII whether that is to be asserted or not. Mr Anderson has said he has up to 4 March to respond to these questions. That is my understanding.

Senator WATT: You are saying that a question to an officer of the Australian Government Solicitor about whether they attended a meeting with their minister—it is not about what was discussed; we have been very careful not to do that, but about their mere attendance at a meeting—could be privileged?

Mr Moraitis : On occasion, the fact of a meeting, in my understanding, could be privileged, sometimes. That was my understanding.

Senator WONG: Could you refer us to how, because I have never heard that before, and that is not the advice we are getting from the Clerk. Mr Moraitis, you said it is your understanding. If that is the assertion, can you point us to where that is outlined?

Mr Moraitis : I have always been under the impression: even the fact of a meeting can sometimes go to the issue of legal privilege.

Senator PRATT: But legal privilege is not an accepted ground. You need to state the public interest immunity ground; legal professional privilege, in on itself, is not. So what is the damage to the public interest that is caused in the disclosure of this information?

Mr Moraitis : In this context, the AGS officers sought advice from the Attorney as to whether the fact of attending a meeting or not attending a meeting relates to the privileges of the client—in this case, the minister—or the ATO. They would refer back to the ATO as to whether certainly the contact and certainly even the fact or the fact of actually given you advice sometimes.

Senator WONG: I accept that you—

Mr Moraitis : That is my understanding. If I am wrong, I will be more than happy to be corrected by the Clerk.

Senator WONG: The clerks advice will be made public and this matter, I am sure, will be discussed in the Senate. Can I just be clear about this. We accept that a claim for public interest immunity can be made. It can be referred by an officer to the minister at the table. That has not occurred. You are asserting it now. There is no reference to the minister in order for him to make—

Mr Anderson : Senator, what you are traversing is something that has actually been considered by a different committee.

Senator WONG: Mr Anderson, with respect, the fact that it has been traversed before in a different committee does not prevent me from asking it here, so why don't we just leave that behind as an excuse? Okay.

Mr Anderson : I will just note that there has been previous advice, I believe, from the previous Clerk of the Senate, that committees should be loath to actually traverse matters that are the subject of inquiry by another committee.

CHAIR: That is very true.

Senator WONG: These are the Senate estimates and we will be asking questions.

CHAIR: What is your question, Senator Wong?

Senator WONG: I am asking this question: have you referred those matters to the Attorney, the ones that you consider to be potentially good ground for a PII claim for his consideration?

Mr Anderson : I believe we have.

Senator WONG: When did you do that?

Mr Anderson : I would have to take that on notice. I did not do it personally.

Senator WONG: You have to take that on notice?

Mr Anderson : Yes, Senator.

Senator WATT: I am glad that you answered that one.

Senator WONG: So no-one here can tell us when something like that was referred? You understand from a public perspective, this matter has been—and I appreciate you are a public servant—

CHAIR: What is your question?

Senator WONG: I will get to my question. You will appreciate this matter has been the subject of a great deal of political controversy and a lot of media attention, including the allegation that the Attorney-General has misled the parliament. So you will understand—

CHAIR: Is there a question?

Senator WONG: You surely understand that your refusal as taxpayer-funded public servants to answer any questions like this does smack of a cover-up, whether that is reasonable or not.

CHAIR: Senator Wong, would you please withdraw that from accusing Mr Anderson of a cover-up?

Senator WATT: She has not done that.

Senator WONG: I think a reasonable reading of the Hansard will suggest I am not saying that; I am saying that is how what people can see.

CHAIR: You are putting the public servants in a very difficult position and accusing them of a cover-up.

Senator WONG: No, I will rephrase—

CHAIR: Thank you.

Senator WONG: If you did not understand my question I cannot help that, but I will rephrase, perhaps, to make it clearer for you, that to the public, this could look like a cover-up.

CHAIR: Senator, I am not sure there is a question in that.

Mr Anderson : I will just say that, if one were to read the Hansard of 17 February—

Senator WONG: Have you read the APS Code of Conduct and the standing orders as well?

CHAIR: Senator Wong, would you please let—

Mr Anderson : I have actually—

CHAIR: Mr Anderson, it would help if you would at least abide by the chair's rulings. Clearly Senator Wong will not. Senator Wong, would you let Mr Anderson complete his answer before you ask the next question. Mr Anderson, if you could answer that question, and then we will move onto another senator.

Mr Anderson : I was just going to note that the transcript from the hearing of 17 February—these questions were rehearsed, explanations were given and, I believe, accepted at the time by the committee, so I think it is—

Senator PRATT: No, they were not accepted. We are waiting for the minister to state the public interest immunity ground, and it appears that the minister is not ready to state any ground.

Mr Anderson : The minister has until 3 March, which was the time set by the committee—

Senator PRATT: No, he—

CHAIR: Thank you, Mr Anderson. Senator Hinch, you had some questions.

Senator WONG: Mr Anderson, the fact—

Senator HINCH: My questions are for Senator Brandis when he comes back.

CHAIR: All right. I will do the next group of questioning.

Senator WONG: Is that the 15 minutes, Chair?

CHAIR: Yes, it is, Senator Wong. If you have a look at the clock, you will see it is actually 20 minutes.

Senator WONG: Maybe you should have a look at Odger's, page 482, Mr Anderson, before we come back.

CHAIR: Mr Moraitis, could you indicate to me if there have been any changes in the number of employees in the department since the estimates committee last met?

Mr Moraitis : The numbers go up and down. I would have to take that on notice. There could have been a small decline or a small increase in numbers, depending on various activities. I would have to take that on notice. Are you asking about from the last estimates in December?

CHAIR: In October.

Mr Moraitis : There were estimates in December. I will take it on notice and give you some figures.

CHAIR: I thought it was October—everyone has been referring to October. Anyhow, from whenever they last were. But there has been no significant change in the number of staff—

Mr Moraitis : No.

CHAIR: and there has been no change in the housing of the department in any material way since that time?

Mr Moraitis : Housing?

CHAIR: Your office accommodation.

Mr Moraitis : No, we have the same building. There has been some recent work done in Brisbane. A cyber security growth centre was opened on Friday last week, which accommodates some officers of the Computer Emergency Response Team, which is part of the department which deals with cyber issues, and as well a joint cyber centre has been established there. That is the latest.

CHAIR: I was getting to that. Is it possible to tell us where that centre is without breaching any security?

Mr Moraitis : Yes. It is, if I recall correctly, in the CBD of Brisbane in Adelaide Street.

CHAIR: How many staff are there?

Mr Moraitis : There are staff of the department, as I said, the Computer Emergency Response Team, CERT, which is based in Canberra and which also has staff based in Brisbane. The move involved moving the CERT staff to this building, but also in an adjacent room is the cyber security growth joint centre involving both departmental officers and officers from other agencies such as AFP, the Australian Crime Commission and various industry and other representatives. So it is a mix of staff from various agencies in the private sector and in the government sector. Ms Jones can give you the exact figures for the other agencies, but I think it is AFP, the Australian Crime Commission, industry and perhaps some academic engagement. The whole point is to have a hub involving government, industry and various other participants in terms of cooperative work on site countering cyber threats.

CHAIR: You mentioned that private industry is involved as well. Could you explain that?

Mr Moraitis : I will ask Ms Jones to explain it. She has been working to bring this to fruition.

Ms Jones : The first joint cyber security centre was opened in Brisbane last Friday. At this stage we are looking at between 10 and 15 Attorney-General's Department staff being in the centre, as well as the Computer Emergency Response Team staff. We will have at least two officers from the AFP and two officers from the Australian Criminal Intelligence Commission. There will be a fluid number of industry representatives, the idea being that this is a space where both industry and government can work in partnership to assess emerging threats, analyse the threats and consider what appropriate responses are.

The benefit for industry is that they will be able to sit side by side with government officers who have available to them richer information about the types of attacks that are being experienced, particularly from a national perspective, and the international threats that are coming in. We can have government and industry people working together to try to develop specific responses to the types of threats that are coming through.

The first one is in Brisbane, and we are hoping—

CHAIR: Just excuse me, Ms Jones. I cannot hear you. There are interjections.

Senator WONG: I am happy to say what I said. David Tune would never have done this, and, as a minister, I would not have asked him to.

CHAIR: Senator Wong, please be quiet, and if you cannot control yourself please leave the room.

Senator McKIM: Oh, seriously! You are an embarrassment.

CHAIR: And Senator McKim, you can leave if you cannot control yourself either.

Senator McKIM: I am not going to leave. You have no capacity to throw me out, so I am staying right where I am, thanks.

Senator WONG: What are you going to do: pick us up?

CHAIR: If you keep interjecting so that I cannot hear the witness's answer, we will do what we did this morning and shut it down until you can control yourself.

Senator McKIM: You can shut it down if you want to deny us the chance to hold the government to account.

CHAIR: That will be your call, Senator McKim.

Senator McKIM: That will be what I will say. It will be your call.

CHAIR: Ms Jones, could you please continue. You might have to speak—well, no, there will be no interruptions anymore, so keep talking at your appropriate professional tone.

Ms Jones : Thank you, Chair. I was just noting that the centre in Brisbane is the first of the national rollout. We expect that before the end of this year we will have centres established in Melbourne, Sydney and Perth, with Adelaide to follow, hopefully, in the not too distant future after that. What we will be looking for is to really build on the collaborative relationship that we have already established with a lot of industry partners, who are very keen to have their own offices co-located in these centres to enable us to do more detailed work about addressing cybersecurity threats. It is a fairly significant development in terms of implementing one of the key recommendations coming out of the government's Cyber Security Strategy.

CHAIR: There is a similar unit in Canberra, I think you said?

Ms Jones : There is the Australian Cyber Security Centre, which is based here in Canberra and has representatives from a range of Australian government agencies—law enforcement, intelligence. It does facilitate some collaborative work with business but, because of the secure nature of the location of that centre, it is not as conducive to government and industry working side by side in the way that we envisage we will be able to achieve through the joint cyber security centres that we are establishing around the country. It does do part of the collaboration work but not the full amount that we hope we will be able to achieve through the joint cyber security centres.

CHAIR: So Brisbane is the first one of those centres?

Ms Jones : It is.

CHAIR: Where are the others planned?

Ms Jones : We will have Sydney, Melbourne and Perth before the end of this calendar year, and then we hope to have Adelaide not too long after that.

CHAIR: And was there any particular significance in Brisbane, apart from the fact that both the Attorney and I are from that state?

Ms Jones : We have had a long-established office of the Computer Emergency Response Team in Brisbane, so we already had very well established relationships with key industry partners based in Brisbane. They are national organisations, such as Telstra and Rio Tinto, but also Queensland based organisations. Given this is a new initiative, we thought that it was appropriate to build on those existing strong relationships that we had and establish the first centre in Brisbane, but we are very mindful that there is a very strong appetite to have these centres established in other locations around the country, so we are pushing quite hard to get the next tranche opened as quickly as possible.

CHAIR: What of the fact that Australia's largest Army base is in Queensland and its second largest east coast naval base is in Queensland? I am not sure where Amberley rates as a RAAF base, but certainly it would be one of the biggest RAAF bases. Are those things in any way relevant? Is this interposed with our defence capabilities and our defence against cyber attacks?

Ms Jones : Certainly, we work closely with relevant defence agencies in terms of identifying cyber threats and developing appropriate responses, but I would have to say that, in terms of the rollout of these centres, it is driven much more by industry needs, their key headquarters or where they have got significant activity occurring in a particular jurisdiction. The key thing about this initiative is about being in a location that is attractive to industry partners so that they feel comfortable about placing their staff within the centres and working in partnership. That was a key factor for us in determining the specific location within Brisbane—it had to be in an area where we could work closely with industry. It will also be a determinative factor for us when we consider the precise locations in other capital cities.

CHAIR: Has the template for this model come from the United States or is it purely Australian grown?

Ms Jones : We certainly looked at international experience about what is the best way to foster collaboration between business and government. We discussed this at the launch with some of the very experienced industry representatives who were there, and exactly the model that we have developed here is pretty unique. We think that perhaps in the Netherlands there is something that is a little bit similar, but having centres like this that embed industry people within the actual centre itself is a fairly new development internationally.

CHAIR: Thanks very much, Ms Jones. It is very good to know about this and to be aware of it.

Senator WONG: Chair, can we get some clarity as to whether the Attorney is going to in fact arrive at some point tonight? Do we know?

CHAIR: You know as much as I do. I can ask Senator Scullion.

Senator Scullion: The information I have is that he will be arriving no sooner than half past eight, and that is why I have indicated that it will be between half past eight and nine, but we do expect him to arrive.

Senator WATT: Could I request that, if they are present, Mr Faulkner and Mr Loughton come back to the table?

Mr Kingston : Mr Loughton is not present, Senator.

Senator WONG: Why not. Is there a personal reason, or is there some other reason?

Mr Kingston : I do not think he was asked to come, and he would not normally attend estimates to speak on the sorts of matters that would normally be covered at a departmental estimates hearing.

Senator WONG: There is no limit on what we can ask at estimates. That is the first point. What level is he at?

Mr Kingston : He is a senior executive lawyer at the Australian Government Solicitor.

Senator WONG: He is an SES.

Mr Kingston : Yes.

Senator WONG: Are there many SESs who routinely do not attend estimates?

Mr Kingston : Yes. At the Australian Government Solicitor the vast majority of them would not attend estimates.

Senator WONG: It is convenient that he is not here, given that, obviously, this is a matter that has been the subject of previous questions and public interest. It is an interesting decision for the officer not to be here.

CHAIR: It is a matter that has been canvassed by another committee, so I can understand why he would not have thought he would have to be here.

Senator WONG: There is no limitation, as you know, Chair, which is why you could ask previous questions.

CHAIR: Mr Kingston, do you have an answer?

Senator WONG: I am just asking: why did he not attend? Was he asked not to by a senior officer?

Mr Kingston : No. He was not asked not to. To be honest, it was not contemplated that he would attend—

Senator WONG: Really?

Mr Kingston : Yes, because he did attend a little over a week ago, when he was requested to, to deal with the Bell litigation. He was not expecting to receive questions about the Bell litigation at the estimates hearing, to be honest.

Senator WONG: It was in the papers this morning that this was going to be covered at estimates. Did you not read that?

Mr Kingston : Yes, but I understood that was directed to the Attorney, not to Mr Loughton.

Senator WONG: And his misleading of the parliament—that is true; it was directed at that. Senator Brandis is back.

Senator WATT: Mr Kingston, prior to your appearance at that hearing of 17 February, did you have any contact with the Attorney-General or his office about your participation in that hearing?

Mr Kingston : No, I did not.

Senator WATT: No contact—verbal, written, meetings?

Mr Kingston : No, not that I can recall.

Senator WATT: Did you have any discussions with Mr Anderson or Mr Moraitis prior to that hearing, about your participation in it?

Mr Kingston : Not with Mr Moraitis. I had some discussion with Mr Anderson. I think I am right in saying I had some brief discussions with Mr Anderson.

Senator WATT: And did you do discuss how you would be answering questions, how it was proposed you would answer questions at that hearing?

Mr Kingston : Not in terms of the factual content of answers, no. There was some discussion of whether certain topics might stray into areas where we felt we should seek to take questions on notice so as to allow, in the case of AGS, AGS to consult with its client about the answers that might be given.

Senator WATT: Mr Faulkner, did you have any contact with the Attorney-General or his office prior to your appearance at that hearing, about your participation?

Mr Faulkner : No.

Senator WATT: Mr Anderson, did you have any contact with the Attorney-General or his office about the hearing on 17 February before that day?

Mr Anderson : My recollection is that I emailed the Attorney-General's office just to advise that officers of the department had been invited to appear before the committee.

Senator WATT: Was there any discussion about the use of public interest immunity claims, what would be appropriate to answer, what would not?

Mr Anderson : No. I do not recall that.

Mr Kingston : Mr Anderson's comment about the email reminds me that some time, a little time, before the hearing I wrote a letter to our two clients, indicating that we had also been invited to attend and unless we heard from them to the contrary we were proposing to attend the hearing.

Senator WATT: Mr Anderson, leaving aside this particular hearing, have you ever had any discussions with the Attorney-General or his office about how departmental officials should answer questions at these hearings?

Mr Anderson : Not about how questions should be answered in advance, no.

Senator WATT: So how is it that you arrived at your position that certain questions should not be answered and public interest immunity should be claimed? How did you get to that point?

Mr Anderson : You will recall that there was a hearing on 7 December last year. A number of questions were also similarly taken on notice to be referred to the Attorney. The Attorney then did make public interest claims in respect of those matters.

Senator WATT: Senator Brandis, many hours ago you indicated to the committee that you wanted to make a statement. Would you like the opportunity to do that about the Bell matter?

Senator Brandis: Yes, thank you. May I, Mr Chair?

CHAIR: If Senator Watt has asked you to do that, yes, you should answer his question and give the statement if that is what he wants.

Senator Brandis: On 28 November last, I made a statement in the Senate concerning the Commonwealth's role in litigation between the Western Australian government and certain creditors at the Bell group of companies, which was determined in the High Court in April 2016. On 12 December 2016, I answered a number of questions at the spillover day of the additional estimates concerning the same matter. I confirm the accuracy of that statement and of those answers. Yesterday, I received a letter from the Senators Wong, Di Natale, Hinch and Xenophon inviting me to make a statement to this committee arising out of a statement made last Friday by the Attorney General of Western Australia, Mr Michael Mischin. It is suggested that Mr Mischin's statement in some way contradicts what I have said. I reject that suggestion. On the contrary, Mr Mischin's statement is entirely consistent with my recollection of the course of events. Let me explain why. In his statement, which I will read in full, Mr Mischin said:

My recollection, based on some notes that I have, is that in early February I spoke to him—

that is a reference to me—

by phone. He had only recently returned from leave. I indicated that I wanted to discuss any issues the Commonwealth might have with our legislation that would kill off the Bell litigation. He indicated to me that he had had a very, very preliminary briefing on it. He hadn't been able to form a view on it and, once he had, he would discuss the matter further with me.

I then had a further conversation with him—I think in early March—where he told me that, as far as he was presently advised, he did not think the Commonwealth had a basis to intervene. Then I spoke to him again later in March, shortly before the High Court, where he told me that, on the advice he had received, he felt obliged to intervene on behalf of the Commonwealth.

That is the end of Mr Mischin's statement.

In my 28 November statement, I said:

The first personal involvement I recall having in the matter was on 3 March this year, although my office had been dealing with the matter prior to that time.

At the time I made my 28 November statement, I had no recollection of the exchange to which Mr Mischin refers. I still have no recollection of it. Were I to say that I recall such an exchange, I would be misleading the Senate, because I do not. What I told the Senate on 28 November was:

The first personal involvement I recall having in the matter was on 3 March …

That was true then and it is true now.

That said, I do not dispute what Mr Mischin says. I am not in a position to do so, because I do not recall the exchange. I do not say that it did not happen. I merely say that I do not recall it. Of course I do speak to Mr Mischin from time to time. Early last year, I had a telephone conversation with him, at his request, for the purpose of discussing the appointment of a judge to the Family Court of Western Australia. It may be, though this is only conjecture on my part, that Mr Mischin said something to me about Bell at the end of that conversation—though, as I say, if he did, I do not recall it. In any event, I do not consider Mr Mischin's statement to be a contradiction of what I told the Senate about the time at which my personal involvement in the matter began—that is, as and from my meeting with Mr Christian Porter on 3 March.

As I also told the Senate, prior to that time I was aware of the matter and I was aware that my office was dealing with the matter. I would have told Mr Mischin that. Being aware that my office was dealing with the matter and that a decision would be required of me at some time in the future does not, in my view, constitute 'personal involvement' by me. The fact that, according to Mr Mischin's recollection, I told him that I was not in a position to discuss the matter with him is only consistent with my not yet having become personally involved. The reference to my saying that I had had 'only a very, very preliminary briefing' is consistent with my office—specifically my then senior adviser James Lambie, a very experienced litigation solicitor who was handling the matter—having told me that the matter was in hand and that a decision about intervention would be required of me at some time in the near future. I recall Mr Lambie saying that to me on more than one occasion prior to my meeting with Mr Porter on 3 March. I do not consider merely being told that a decision about a matter then being dealt with my staff would be required of me in the future constitutes 'personal involvement' by me at that stage.

When a minister becomes personally involved in a matter, he becomes engaged in it, familiarises himself with the issue and puts himself in a position to discuss it and make decisions about it. That is the very thing I did do on and after 3 March, and it is the very thing that, according to Mr Mischin, I told him I was not in a position to do during the brief earlier exchange, which he recalls.

Senator WATT: Just to clarify, Chair, Senator Brandis has obviously taken a bit of time to provide that statement. Is that taking up my time?

CHAIR: Yes. You asked him the question. It is out of your 15 minutes. You have two minutes 19 seconds—

Senator WATT: So Senator Brandis making a statement constitutes questions.

Senator Brandis: I was asked by your leader and three other senators to make the statement.

Senator WATT: That constitutes questions from me, is that correct?

CHAIR: If you are asking a question, Senator Watt, I specifically said to the minister when he asked me about that, 'Senator Watt has asked you a question in his period of time.' You asked the question and he gave you the answer. Now you have one minute 53 seconds left.

Senator WATT: Senator Brandis, simple questions, I think, work best with you, so there can be no evasion, no misunderstanding. Why do you have such a problem telling the truth to this parliament?

Senator WONG: Hear, hear!

Senator Brandis: That is not a question, that is an insult and I will not dignify it with an answer.

Senator WATT: It is a question. We have had—

Senator Brandis: Senator Watt, you do not have any basis to challenge anything I have said in that statement.

Senator WONG: Oh yes we do.

Senator Brandis: Every word I have said in that statement—

Senator WATT: I will get to that.

Senator WONG: Don't worry, we will get to that.

Senator Brandis: Every single word I have said in that statement is true, just as every word I said in my statement to the Senate on 28 November is true.

Senator WONG: That is not true.

Senator WATT: You know that no-one in Australia believes you, not one person.

Senator Brandis: These are not questions—

CHAIR: I can just say to you I believe you, and I think most Australians do.

Senator WATT: Good, Senator Macdonald believes you. Does Senator Williams believe you?

Senator WILLIAMS: Yes, I do.

Senator WATT: Okay, you've got two.

CHAIR: Senator Watt, if you do not have serious questions to ask—

Senator Brandis: I thought this was a serious inquiry. It plainly is not. If that is the quality of what is being put to me by Mr Watt—

Senator WONG: We are happy to ask many questions.

Senator PRATT: If you would allow your officials to answer some questions—

CHAIR: We will go onto some serious issues in 36 seconds. Senator Watt, do you have a question?

Senator WATT: In the 32 seconds remaining there is no point, because we know we are not going to get sensible and honest answers.

Senator Brandis: I gave you a very full answer, Senator Watt, and you cannot deal with it.

Senator WONG: It is inconsistent with your—it will change again.

Senator WATT: In a month it will change, because something new will come to light and you will have a new set of words to obfuscate and get around it. And then it will change the next month, and then you'll be off to London.

Senator Brandis: I think from your own—

CHAIR: Senator Brandis, let the noise continue. It is their time they are wasting. Do you have a question, Senator Watt?

Senator WATT: I think my time is up.

Senator WILLIAMS: It certainly is now.

Senator WONG: I have questions.

Senator HINCH: I have questions.

CHAIR: I have questions too, on a serious policy issue which, as I indicated, we will move to. I am very interested in the issue of family violence. I understand that the government is committed to elevating this issue of family violence in the national consciousness. Can you, Senator Brandis—or Mr Moraitis or whoever the relevant person is—tell us about the proposed family violence amendments to the Family Law Act, what precipitated them, what is proposed?

Senator Brandis: I can tell you a little bit and perhaps the relevant officials can add to my answer. On 9 December last year I released an exposure draft of a legislative amendment to the Family Law Act, to respond to family violence, which is available on the Attorney-General's Department website. The amendments would enhance the court's ability to protect victims of family violence, including by removing the 21-day time limit on a state or territory court's variation of a family law order in domestic violence order proceedings; streamline the legal process for resolving family law disputes by clarifying the jurisdiction of state and territory courts to resolve matters where appropriate; and establish new criminal offences for breaching personal protection injunctions issued by a court under the family law act, which would remove the need for the victim to be a party to enforcement action.

The amendments address recommendations of the Family Law Council's Reports on families with complex needs and the intersection of the family law and child protection systems, the Victorian family violence royal commission, and the Australian Law Reform Commission report Family violence: a national legal response. Those are the amendments, in summary, or the most recent measures that the government has announced. Perhaps the officials can expand on that answer.

Ms Saint : As the Attorney mentioned, the exposure draft sets out a range of amendments to the Family Law Act to respond to family violence. Some of them focus on the role of the state and territory courts in relation to dealing with matters; others relate to the property jurisdiction of the state and territory courts. One of the amendments is to allow the value of family law property matters that can be determined in courts of summary jurisdiction to be prescribed in regulations. The current limit as prescribed in the act is only $20,000. That limit was set in 1988. Some of these measures are to expand the role of those courts. As the Attorney mentioned, one of the amendments is to criminalise breaches of family law injunctions made for personal protection. Others are to codify and strengthen the power of the courts to dismiss unmeritorious claims. Another is to remove the requirement that a court must explain certain matters to a child where that would not be in the child's best interest to do so. The final amendment is in relation to what is now regarded as unnecessary wording around the obligation to perform marital services, which still exists under Australian law.

CHAIR: You mentioned one of the amendments was proposing to make it a crime to breach personal protection injunctions issued by the federal Family Court. Are you saying to me that is not now a crime?

Ms Saint : That is correct. At the moment, because Family Law proceedings are private proceedings, breaches of those orders require a civil enforcement action which needs to be brought by the aggrieved party. The proposed amendments will criminalise those breaches.

CHAIR: It was never a contempt of the Family Court to breach an order?

Senator Brandis: It is a contempt of court to breach any order of a court.

CHAIR: Well, that takes it beyond the civil.

Senator Brandis: It is a contempt of any court to breach an order of a court.

CHAIR: But you are introducing amendments to make it a crime. The answer was that it was previously just a civil remedy.

Senator Brandis: Contempt of court is a very funny legal concept. It does not easily fit within the binary difference between criminal and civil, because a person can be, and commonly is, imprisoned for a contempt of court and retained in prison until they purge their contempt, even though that may occur in the context of civil proceedings.

CHAIR: Anyhow, it will be an outright crime, so we will not have to do that. Just after the election, I think it might have been around August, there was the launch of a family violence bench book. Can someone tell me exactly what that was all about and what in fact it deals with?

Ms Harvey : The National Domestic and Family Violence Bench Book is being prepared by the Australasian Institute of Judicial Administration, and it is being delivered in two parts. The first part was delivered last year and the second part is due by the middle of this year. It is a resource that is designed particularly for judicial officers but is publicly available and will be useful for a wide range of people who would come into contact with family violence. It goes through a range of things. It sets out different types of family violence, for example, and then it will set out different types of court practice which might be useful in different cases that come before courts where family violence is an issue.

CHAIR: As these are budget estimates, can I just refer to the 2016-17 budget, where an amount of $30 million was set aside for what was called 'frontline legal assistance services' to support Australians affected by family violence. Can you explain what that is about, and has the program commenced? Has money been expended so far this financial year?

Ms Harvey : Certainly. Under the Third Action Plan of the National Plan to Reduce Violence against Women and their Children, there was $30 million set aside for these services. I think $18.5 million of that is for the establishment of family advocacy and support services. The funding goes to legal aid commissions, who will establish services around the country, and they will provide both a duty lawyer service and a family violence support worker at the court. That will be accessible to people who go there.

There is $6.2 million for piloting of legally assisted family dispute resolution by family relationship centres. Currently family dispute resolution, which is provided by a range of family relationship centres and other providers, does not necessarily use lawyers, but this is designed as a way that people who perhaps have had family violence and, particularly in this context—we are looking at making sure it is culturally appropriate—Aboriginal and Torres Strait Islander people and also culturally and linguistically diverse communities can access a non-court way of resolving their relationship breakdown by using this legally assisted FDR.

There was also, I think, $5 million for an extension of the Women's Safety Package pilots, which commenced, I think, in 2015 under a different funding package. That is a range of partnerships: some health justice partnerships and some DV wraparound units.

So that is the range of different aspects of that funding.

CHAIR: Thank you for that. I know this is an issue that all senators, regardless of their political persuasion, are very interested in, so I appreciate you telling us about that. I think I read something from the Australian Criminal Intelligence Commission about a National Domestic Violence Order Scheme. Are you able to tell me exactly what that is, what funding has been allocated, if any, and anything else about that scheme that senators might need to know?

Ms Harvey : Certainly. I think my colleague might be able to assist with that one.

CHAIR: Thank you.

Mr Pahlow : Michael Pahlow, assistant secretary, AusCheck Branch.

CHAIR: Which branch?

Mr Pahlow : AusCheck Branch.

CHAIR: What does the AusCheck Branch do?

Mr Pahlow : We look after aviation security identity cards and maritime security identity cards, and we also look after some of the policy around domestic violence.

CHAIR: That is interesting. Okay, carry on.

Mr Pahlow : There are two components to the National Domestic Violence Order Scheme. One is the introduction by states and territories of model laws to align the regime across the country. Currently individuals who take out a domestic violence order in one jurisdiction have to manually register that in any other jurisdiction they want it to have force in. The purpose of the model laws is to enable a mutual automatic recognition across all jurisdictions in Australia.

The second aspect to the arrangements is putting in place an information-sharing system to enable the information about what domestic violence orders are in place in each jurisdiction to be shared across all jurisdictions. There are two components to that. The first is an interim scheme which is mainly aimed at just sharing information about the domestic violence orders whilst a national information-sharing system is put in place. The national information-sharing system, or national orders reference system, will enable far greater information about domestic violence orders to be shared. That information will be sufficient to enable enforcement and will have an evidentiary quality to enable court action to be taken. The interim system will only provide information; it will not provide that higher level of granularity around what the orders say, who are the people in it et cetera.

CHAIR: What is the connection between that scheme you have just talked about and the airport security systems?

Mr Pahlow : I just got lucky.

CHAIR: At least I did not miss that element.

Senator HINCH: Senator Brandis, if I go back to that Monday 28 November explanation to the Senate, it seems to me that you were playing devil's advocate a bit there back in March of last year, because you said in that statement that on Friday 4 March you 'thought things over,' you thought about what Mr Mischin had said to you, that the ATO should not get involved and the Commonwealth should not get involved, and then over the weekend, from that statement, you talked to Ms O'Dwyer about it. You said that without prejudice you floated the idea that maybe the ATO should not get involved. You talked to Mr Mills, at her suggestion, from the ATO, and then you decided that the ATO should get involved, is that correct?

Senator Brandis: Because I am a little sensitive about my words being misrepresented by Senator Watt over here—

Senator HINCH: I am not Senator Watt.

Senator Brandis: I know you are not. You are an honest man. I am a little chary—

Senator WATT: I ask Senator Brandis to withdraw that.

Senator Brandis: I think Senator Hinch is an honest man.

Senator WATT: He has just accused me of being dishonest, Chair.

Senator HINCH: Senator Brandis, in fairness, I have to also ask you—

Senator Brandis: That is fine if that causes you to be perturbed. I am a little chary of adopting anybody's words other than my own. But I think that is roughly a paraphrase. I think the point at which it was obvious to me that the ATO should proceed with their intervention was probably towards the front rather than the back of those few days.

Senator HINCH: You said:

At one stage on Friday 4 March, one of the options I considered, having regard to what Mr Mischin and Dr Nahan had put to me, was that the ATO should not intervene in the proceedings. I should stress that that was never a view I arrived at; it was merely one option among several which I wanted to test with Ms O'Dwyer.

Senator Brandis: Correct.

Senator HINCH: Then you had discussions with them and you said, 'I arrived at the firm conclusion that it was desirable that the ATO should intervene.' Then the High Court comes up with a section 78 notice, which meant you had to consider the constitutional—

Senator Brandis: That is a different issue. Let me explain it to you, Senator Hinch. That is a different issue. It is important to understand that these proceedings did not initially involve the Commonwealth—

Senator HINCH: True.

Senator Brandis: or a Commonwealth entity. They were proceedings between a group of Bell creditors—not all of them but a group of them in a particular class—and the government of Western Australia, and that group of Bell creditors was trying to knock over the Western Australian act. That is the first thing to remember: this litigation did not initially involve the Commonwealth at all.

The second thing to remember is that the Bell act was designed by the Western Australian government to try and settle all of the claims and to bring this very long winding up to an end. It had either the unanimous or the near to unanimous support of all of the parties in the Western Australian parliament. Although it was a government bill, the Labor Party supported it, so Senator Pratt, who is a member of the Western Australian branch of the Labor Party, supported it. Even the Greens supported it, so Senator Siewert, who is a member of the Western Australian branch of the Greens, supported it. This was not controversial in Western Australian politics or the Western Australian parliament, because everybody in that parliament wanted to see that outcome.

The third point, which is a slightly more technical point, is this: you have to remember that the ATO is a completely independent agency of the Commonwealth—

Senator HINCH: A point of order, Chair: out of only 15 minutes that we get, it seems to me, as a newcomer, that Senator Brandis takes up most of my 15 minutes with his lengthy answers.

Senator WATT: He does like to do that.

Senator Brandis: I am trying to be thorough.

Senator HINCH: Malcolm Fraser used to do this very regularly.

Senator Brandis: I will try and be as swift as possible. But you said about the—

Senator HINCH: Well leave 78B out of it now—I am happy to drop that.

Senator Brandis: You said 'about the intervention application', right? The intervention application was a decision over whether or not the Commonwealth of Australia should intervene, and that was a decision for me. The question about whether the Australian Taxation Office should intervene was not a decision for me. The intervention question was a decision about a different aspect of the case; that is, what might broadly be called 'the Corporations Act' aspect of the case, as opposed to the 'revenue act' aspect of the case. The ATO did not need my authority to intervene in order to argue the revenue point, but the Commonwealth of Australia needed my authority to intervene to argue a different point.

Senator HINCH: That is true. Now did you ask the Solicitor-General, who was representing the ATO, to run dead on the constitutional issue?

Senator Brandis: No. They were both constitutional issues. They were both constitutional issues, but they were different constitutional issues. Mr Gleeson, the then Solicitor-General, was acting for the ATO, and I had no involvement whatever in instructing Mr Gleeson in relation to the ATO, because the ATO was his client, not me.

Senator HINCH: Now can we—

Senator Brandis: Sorry, I have not finished answering your question. In relation to the Corporations Act point, which was the question of whether the Commonwealth of Australia should intervene, the answer to your question is also no, but for completeness, I should say this, as I said in my statement to the Senate: I was initially of the view that this case was all about the revenue point, and the Corporations Act point was not the basis on which the High Court was likely to decide the case, and, therefore, I was initially of the view that the Commonwealth of Australia should not intervene. That is where I think this confusion has arisen in the minds of some. I was initially of the view that the Commonwealth of Australia should not intervene on the Corporations Act point, because I did not think that was primarily what the case was about, and I did not think that the case would be resolved on that basis. However, after having discussed the matter with Mr Gleeson, who was strongly of the view that the Commonwealth of Australia should intervene to argue the Corporations Act point, I accepted his view. I, as it were, yielded to his view and I said, 'You have persuaded me; I agree.' So we did intervene—

Senator HINCH: Okay. Now—

Senator Brandis: and there was no constraint—

Senator WATT: But wait, there's more!

Senator Brandis: placed on any argument that Mr Gleeson might run, nor has anybody suggested there was.

Senator HINCH: I will get back to the same thing. You indicated you did not intend to intervene in the proceedings—

Senator Brandis: That is right.

Senator HINCH: but then you said the Solicitor-General gave you certain advice. You said that Mr Gleeson was strongly of the view that the Commonwealth should intervene—

Senator Brandis: That is right.

Senator HINCH: and you say you were contacted by the Solicitor-General. Was that a meeting or a phone conversation?

Senator Brandis: I think both. I cannot tell you how many, but there were a number of exchanges between me and the Solicitor-General, culminating—

Senator HINCH: He convinced you of the view that you should have, and you changed your mind.

Senator Brandis: We discussed the matter more than once. There was at least one face-to-face meeting in my office. There was, I think, more than one telephone call. But the outcome of our conversations was that Mr Gleeson persuaded me to his point of view. I will tell you the point on which I was persuaded, by the way. I can remember clearly the point at which I thought to myself, 'Well, he's right.' He said—I am paraphrasing him, of course—'Look, the other states are intervening in these proceedings and they are filing submissions in relation to the Corporations Act. The Corporations Act is a Commonwealth law. It would be ridiculous for the Commonwealth not to be in a position to argue the Corporations Act point when the states are doing that very thing.' The logic, or the good sense of that, was unimpeachable.

Senator HINCH: Did Mr Gleeson, in strongly putting his argument, ever say to you, 'You can tell me not to do this, not to run this case, but I don't work for you on this one. I represent the ATO, and I will run the constitutional case if I want to.'

Senator Brandis: I do not remember Mr Gleeson saying that to me and I do not think he would have done.

Senator HINCH: Did this then trigger your controversial letter about—

Senator Brandis: No. That is a complete red herring, Senator Hinch, honestly.

Senator HINCH: It is a missing piece of the jigsaw.

Senator Brandis: Except it is not because the course of events that led to the making of this legal services direction had commenced the previous November. I know people like to sort of think that this is the magic missing link but it is not. By that time I had consulted Mr Gleeson, at least I thought I had consulted Mr Gleeson, and I was considering the matter of the legal services direction. It is simply not the fact that these events were the causal agent or the event that caused me to decide to issue the legal services direction.

Senator HINCH: The Solicitor-General did not say to you, 'I don't work for you, I work for the ATO. I am representing them as their lawyer in the High Court.'

Senator Brandis: Well, that proposition is true. He was representing the ATO. He was taking instructions from them, not me, so both of those propositions are true, and I have never disputed them. But I do not remember him saying to me. Mr Gleeson was a very carefully spoken man and I just do not think the expression, 'I don't work for you,' is an expression he would have used.

Senator HINCH: I am paraphrasing. The constitutional issue that he finally ran on his own—

Senator Brandis: No, let's get this clear. They were both constitutional issues. One was a revenue point in which the Commonwealth was represented by the ATO, and one was the Corporations Act point in which the Commonwealth of Australia itself, as a body politic, intervened on my instructions. I did not instruct the ATO to intervene, they made their own decision. I did, having discussed the matter with Mr Gleeson and being persuaded by him in the manner I have described, decide to intervene, that the Commonwealth should intervene, to argue the Corporations Act point or at least to be in a position to argue it. Mr Gleeson therefore represented both Commonwealth interests in the High Court. He represented the ATO and he represented the Commonwealth, and the submissions were, I think, bundled up so in the end there was no practical differences in the eyes of court. If I may say so, the basis on which the High Court resolved the question was entirely as I had predicted. It resolved it on the revenue point and it found the Corporations Act point unnecessary to decide.

Senator HINCH: My final question. You made the point quite accurately that the Labor Party, the Libs and the Nats in WA, and the Greens—

Senator Brandis: Everyone.

Senator HINCH: all went along with it. Did Joe Hockey and the federal government also go along with it?

Senator Brandis: Well, that is the question you see, Senator Hinch, and that is why, after I spoke to Mr Porter on 3 March and after I had had a detailed and quite lengthy conversation with Mr Mischin and Dr Nahan on 4 March, I was concerned. Ordinarily, by the way, these intervention decisions are almost routine. You just sign the brief and they are almost routine, they almost make themselves. The reason there was a peculiarity about this case, which caused me to be concerned, is because of what Mr Porter told me on the evening of the third,—but he was merely, as it were, encouraging me to speak to Mr Mischin and Dr Nahan—but most particularly because what Mr Mischin and Dr Nahan told me on the fourth.

I do not want to put words in their mouth, but I had seen footage of Dr Nahan speaking in the Western Australian parliament and I know what they told me in that teleconference on Friday, 4 March. They thought they had, if not necessarily a deal, then at least an assurance from the Commonwealth, from Mr Hockey, that the Commonwealth would not try to knock over, to use the vernacular, the Bell settlement as embodied in the Bell Act.

As the first law officer, I have an obligation to protect the interests of the Commonwealth. That includes, of course, ensuring that the Commonwealth behaves, at all times, legally and as a model litigant. If it were the case that I thought that there was an agreement between the Commonwealth and Western Australia which tied the Commonwealth's hands then I am not sure what I would have done to be honest. But it did not get to that stage because, having cited the letter from Mr Hockey to Dr Nahan, which I tabled on 28 November, it was perfectly clear to me that there was no binding assurance by the Commonwealth to Western Australia. Although it was appropriate to me to consider carefully what Mr Mischin and Dr Nahan had put to me, I did not think, having not only particularly cited that letter but also spoken to Ms O'Dwyer and her officers, that the Commonwealth was in a problematic position. That is where it was.

The problem was presented to me by Mr Mischin and Dr Nahan on the fourth. I listened carefully and respectfully to what they had to say. It worried me. I then satisfied myself of what the position was and what the Commonwealth's obligations were. I was quite satisfied, having had those conversations and read Mr Hockey's letter, that there was not a problem. Can I quote to you, please, Senator Hinch, the evidence of the ATO officials in relation to this matter. Mr Andrew Mills, the second commissioner of taxation, said on 7 December:

We were not, and did not, seek permission or approval from the minister for our decision or action. The ATO have upheld our position as an independent administrator and independence in our decisions throughout the course of this matter. Neither the commissioner nor I, or any other decision-maker in the ATO, were lent on by a minister or their office or directed to do anything other than what we did.

Senator HINCH: But in an angry exchange you admitted to having with Mr Mischin afterwards—

Senator Brandis: I would not say it was angry.

Senator HINCH: It was strong. You had it later on.

Senator Brandis: Sorry, later on?

Senator HINCH: Yes, later on. In your heart, you must think that they thought they had a deal with the government that the Federal government would rollover and the ATO would lose $300 million or go to WA?

Senator Brandis: I know they were aggrieved that the Commonwealth joined the Bell Group creditors in attacking the Bell Act on the basis of what they believed had passed between them and Mr Hockey. But I was satisfied that nothing that Mr Hockey said to Mr Mischin or Dr Nahan put the Commonwealth in that difficult position. I do not have the letter on hand, but you can have a look at it because it is a tabled paper. It is perfectly clear from the letter that Mr Hockey wrote in 2015, after his meeting, that he was not binding the Commonwealth. Can I add one other reference. Senator McKim, speaking of me, said to Mr Mills on 7 December, 'Did he at any stage seek to dissuade the ATO from intervening?' Mr Mills said, 'No.' Mr Mills was the only ATO official to whom I spoke.

Senator PRATT: I am happy to accede my time to Senator Watt at this point.

Senator WATT: Senator Brandis, can we just go back over what you have told us tonight. You claim that everything you have previously told the Senate is correct. I will remind you that on 28 November your words to the Senate were:

The first personal involvement I recall having in the matter was on 3 March this year, although my office had been dealing with the matter prior to that time.

You repeated that when you appeared before estimates on 12 December 2016. You might remember that I was very careful to try to get you to explain what you meant by 'personal involvement' because, having had experience with you in the Solicitor-General matter, I understand that you think very carefully about the words that you use—and I will leave people to decide why that might happen.

Senator Brandis: Because I believe in accuracy, Senator; that is why.

Senator WATT: That would be one interpretation.

Senator WONG: It is good, leading with your chin, I reckon.

Senator WATT: I asked you on 12 December what you meant by 'personal involvement' and you said, 'Well, what I said in my statement. I had no personal involvement in the matter before' and you did not elaborate as to what personal involvement meant. But I take it from your statement tonight that when you say 'personal involvement ' you mean 'becomes engaged', whatever that might mean.

Senator Brandis: I remember the exchange on 12 December. You invited me to expand on my meaning but, chastened by the experience with you and your colleagues in the earlier hearings, when Senator Pratt, in particular, ignored seven of the eight definitions of the word 'consult' in the Oxford dictionary and preferred instead to rely on a passage from Alice in Wonderland,I was a chastened by that experience. However, given that Mr Mischin has given a paraphrase of his recollection of a conversation and I am at the disadvantage of not recalling that conversation—it was obviously a brief conversation, as he makes clear—I thought it probably was appropriate for me to expand on what I think to say 'one is personally involved' means. What are the words I have used in my statement—

Senator WATT: Becomes engaged.

Senator Brandis: This does not come out of the dictionary. This is what I think: 'becomes engaged in, familiarises himself with, puts himself in a position to discuss and make decisions about'—yes, that is what I think.

Senator WATT: Did you think very hard before you made that statement about how you could possibly explain what personal involvement means, in coming up with that language?

Senator Brandis: What you mean? I do not understand the question.

Senator WATT: I do not think I even want to understand your thought processes in explaining the words that you use.

Senator Brandis: I am trying to give a good faith explanation as to what—

Senator WATT: That would be nice.

Senator Brandis: that phrase means to me.

Senator WATT: Okay. When you told the Senate on 28 November last year that the first personal involvement you recalled having in this matter was on 3 March that year—

Senator Brandis: That is right.

Senator WATT: it was incorrect that that was the first person involvement you had. I understand that you have used the words recalled. But it was incorrect that that was your first personal involvement in this matter.

Senator Brandis: I do not agree with you, for the reasons I have just explained. I am sorry if I am being tedious, but let me reply.

Senator WATT: No, do not apologise.

Senator Brandis: I knew about the matter because it had been in the press, so I knew that there was a challenge. We all read the newspapers. It had been flagged from the moment the Bell Act passed the Western Australian parliament that this particular group of Bell creditors was going to challenge it.

Senator PRATT: Not to mention the fact your office—

Senator Brandis: Please do not interrupt me, Senator. That was a notorious public fact, and everybody who reads the newspapers was aware of the fact. I knew that my office had been contacted by the department, because my then senior adviser now chief of staff, James Lambie—who is, as I said, a very experienced litigation lawyer—was dealing with the matter. He told me he had it in hand, and I remember him saying to me, more than once, 'Look, George, there's this issue about Bell. You're going to have to make a decision soon about intervention', and that was it. That was it, and I do not regard that as personal involvement.

Senator WATT: So in the universe that you live, you having a conversation with a minister in another government about a particular matter does not constitute personal involvement?

Senator Brandis: You use the word 'conversation', Senator, but what—

Senator WATT: Mr Mischin used the word 'conversation'.

Senator Brandis: Hang on. What Mr Mischin says—

Senator WATT: Is that he spoke to you.

Senator Brandis: Yes, he does, so he spoke to me and he says—

Senator WATT: And he remembers it very well.

Senator Brandis: Whether he remembers it well or not, I am not disputing what he says. I do not remember it, but I know Mr Mischin, and I think he is an honest man. Why would I dispute what he says? But what he says I said is, 'I am not in a position to have this discussion you with yet.'

Senator WATT: That is not what he said.

Senator Brandis: I will read it to you again.

Senator WATT: I do not need you to do that.

Senator Brandis: All right, but that is what he says. Senator Watt, it is like this, if I may use a metaphor: if you were to ask me a question in this committee and I were to say, 'I don't know the answer; I'll take it on notice,' you would not say that I had answered the question—would you?

Senator WATT: I am not going to get into silly games with you.

Senator Brandis: If Mr Mischin raises an issue with me and I say to him, 'Well, I'm not in a position to discuss this with you; I'll discuss it in the future,' you would not regard that as a discussion—would you?

Senator WONG: This is just a distraction. It is a good device, but—

CHAIR: Order, Senator Wong! Let Senator Watt have his time.

Senator WATT: There are a few things that you said on 28 November that you have not repeated in your statement tonight.

Senator Brandis: Do not draw an adverse inference from that, because I am merely responding to your letter, or Senator Wong's letter.

Senator WATT: On 28 November in your statement you also said:

My first conversation with Mr Mischin, which also involved Dr Nahan, was at about midday eastern time the following day, Friday 4 March.

Senator Brandis: That is right.

Senator WATT: That is incorrect—isn't it?

Senator Brandis: It is certainly correct that the first conversation involving Dr Nahan was on that day, but that is not the main point—

Senator WATT: That is the critical phrase.

Senator Brandis: No, that is not the critical point. The critical point is that, as I make perfectly clear, I am speaking about the involvement I recall. As I have said numerous times tonight—

Senator WATT: No, that does not say that. You said, 'My first conversation was at about midday', not that you recall.

CHAIR: Let the witness finish his answer.

Senator Brandis: As I have said numerous times tonight and as I said in my statement, from which I have quoted again tonight, on 28 November:

The first personal involvement I recall having in the matter was on 3 March …

Senator WATT: That is not correct.

Senator WONG: That is not what you said on the 28th.

Senator Brandis: I just read what I said on the 28th.

Senator WONG: Quote:

My first conversation with Mr Mischin—

Senator Brandis: You see, Senator Wong, you have made a mistake because you thought I was quoting from my statement tonight when in fact I was quoting from my statement on 8 November.

Senator WONG: No, 'My first conversation with Mr Mischin was on 3 March.'

Senator WATT: What you went on to say on the same day—

Senator Brandis: That was first conversation I recall.

Senator WATT: No, you did not say that.

Senator WONG: Where is 'I recall' in your statement?

Senator Brandis: I just read it to you.

CHAIR: Order!

Senator WONG: I have the Hansard.

CHAIR: Minister, stop, please. There are two senators questioning at the same time—

Senator WONG: He has just misled—

CHAIR: Please, keep quite while I am calling order. There are two senators trying to ask questions at the one time. I do not know if the witness can understand them, but I cannot distinguish them, so could one of you ask a question, not both at the same time. Thank you.

Senator WONG: Can I just be clear, reading from Hansard, there is no 'I recall' in the sentence to which Senator Watt refers. The sentence reads:

My first conversation with Mr Mischin, which also involved Dr Nahan, was at about midday eastern time the following day, Friday 4 March.

There is no phrase 'I recall' in the sentence, and you said there was.

Senator Brandis: Once again—

CHAIR: Minister, let the senator finish the question. Senator Wong, have you finished?

Senator WONG: I think that was what Senator Watt was trying to get out, but he keeps—

CHAIR: You do not have to interpret for Senator Watt, surely?

Senator WONG: Sure, that is true.

Senator WATT: Here is the question: where is the word 'recall'?

Senator Brandis: May I respond to Senator Wong's question, Chair?

CHAIR: I am not sure there was a question.

Senator WONG: That is true, there was not a question. Senator Watt had a question.

Senator WATT: Where is the word 'recall' in your statement to the Senate on 28 November 2016, where you said that your first conversation with Mr Mischin was at about midday eastern time on 4 March?

Senator Brandis: In the text on the statement that I have, though it is not the Hansard, it is on page 4.

Senator WONG: That is not what the Hansard says.

Senator WATT: Do you want the Hansard?

Senator Brandis: Excuse me; may I finish my answer, please?

CHAIR: Yes, you may.

Senator WONG: That is not what the Hansard says.

Senator Brandis: May I finish my answer, please?

Senator WONG: Sure, but you are wrong.

Senator Brandis: On page 4 of the text of the typescript, which I am sure is the same as the Hansard

Senator WONG: Incorrect.

Senator WATT: Here, I will table the Hansard.

Senator Brandis: This is what I said

The first personal involvement I recall having in the matter was on 3 March this year …

The statement I gave to the Senate was chronological, so of course if the first involvement in the matter I recall was on 3 March then obviously everything subsequent to that is qualified by the words 'I recall'. I have no recollection—

Senator WONG: Ha, ha! Brilliant!

Senator BRANDIS: Unless the English language has lost its meaning, if my first recollection is of an event on 3 March, plainly I have no recollection of events prior to 3 March.

Senator WONG: Seriously!

CHAIR: When questions are asked, please allow the witness to answer. Senator Brandis, would you please answer and then we will go to another question.

Senator Brandis: All right—and I do insist on not being interrupted until I finish my answer. The statement of 28 November is chronological and it locates a point in time, that is the visit to my office from Mr Porter on the evening of 3 March, and I say:

The first personal involvement I recall having in the matter was on 3 March this year …

It then deals chronologically with events on and from that moment in time. Obviously, if the first involvement I recall was on 3 March, then nothing that occurred before 3 March am I saying I recall. And I don't.

Senator WATT: Should I just draw a line across that sentence and interpret it that everything before that that you said to the Senate you actually do not recall, but everything below that line you do recall? Is that the way to interpret your statement?

Senator Brandis: I think, Senator, if you want to play this game we will go through the statement—

Senator WATT: There is only one person playing games and it is the same one who does it at every one of these hearings.

CHAIR: Senator Watt, you asked a question—please let the minister answer.

Senator Brandis: We will go through the statement. The first part of the statement deals historically with the history of the Bell litigation, from 1991. You have tried to take a sentence of the statement out of context, and I will give you the full context. The next part of the statement sets out the legislation that is the Bell act that was before the Western Australian parliament and quotes at length from what Mr Mischin said when he introduced the bill. The next part of the statement summarises the key features of the bill. None of this is recollection—this is all mere historical fact. The next part of the statement says that the Bell act came into force on 26 November 2015, and then it describes the commencement of the proceedings. Then, relevantly it says that 'it is relevant here to point out that I subsequently learnt'—subsequently—that there had been discussions involving Mr Hockey. Then I point out that neither Ms O'Dwyer nor I were involved in those discussions and had no knowledge of them.

Senator WATT: Senator Brandis, I have read your statement—

CHAIR: Senator Watt, please!

Senator Brandis: Let me finish. Then it expresses the opinion—not a recollection but the opinion—that Mr Hockey's letter, dated 29 April, provides no basis for a conclusion that Mr Hockey had committed the Commonwealth to anything, and then, at that point, I begin the chronology of my own involvement, with the words 'The first personal involvement I recall having in the matter was on 3 March.' So everything prior to that time is the history of the matter, quotes from the Western Australian parliament, an analysis in brief of the effect of the Bell act, the history of the litigation and the statement that neither Ms O'Dwyer nor I were aware at the time but we subsequently learned of Mr Hockey's involvement. At that point I begin the chronology of my involvement, and nothing prior to 3 March do I say I recall.

Senator WATT: In that same statement, after saying that your first conversation with Mr Mischin was on 4 March, you go on to say in the same paragraph, in reference to the conversation on 4 March:

Apart from the mention made of the matter by Mr Porter the previous evening, this was the first time I became aware of Mr Hockey's dealings with the Western Australian government.

So if we now know that, despite what you said to the Senate, you actually were involved and you did have a conversation with the Western Australian minister earlier than what you told the Senate, does that also mean that you in fact became aware of Mr Hockey's dealings with the Western Australian government prior to when you have told the Senate?

Senator Brandis: No, and for the reasons I have just—

Senator WATT: Do you recall that? Are you sure you recall that?

Senator Brandis: For the reasons I have just explained—I know what you are trying to put to me, but you are wrong.

Senator WATT: I am just trying to look for some consistency in your statement.

Senator Brandis: Senator Watt, you have had a go, now let me answer your question. I have made it perfectly clear that according to my recollection—I used the words 'I recall'—I date my involvement from 3 March. Nothing that occurred prior to 3 March do I recall. That was my statement to the Senate and it is my evidence to the committee.

Senator WATT: Have you checked your diary?

Senator Brandis: If I may finish my answer without interruption, it is my evidence to the committee tonight. I do not dispute that Mr Mischin records a brief exchange sometime in February, which I do not recall, for the reasons I have already explained. In particular, I said to Mr Mischin, 'I don't know about this and I'm not in a position to discuss this with you, but I will discuss it with you subsequently,' as I did. I do not regard that as a personal involvement.

Senator WATT: Have you checked your diary?

CHAIR: Senator Brandis, you wanted to tell us what the Western Australian minister said. You were trying to do that before and you were interrupted, so can you do that now?

Senator Brandis: I have forgotten now. What Mr Mischin said is what he said on Friday, which is what I do not recall. But the point I make—

CHAIR: No, but what does he say?

Senator Brandis: I read that in my statement.

CHAIR: You were trying to read it again.

Senator Brandis: I do not recall that exchange, but I do not dispute it either. I think what I was asked was whether it is possible that I do not recall Mr Hockey saying something to me about the matter.

Senator McKIM: Do you recall that?

Senator WATT: What I asked was—

Senator Brandis: I am quite certain that Mr Hockey did not.

CHAIR: In the course of answering questions, you said you would read what Mr Mischin said, and you were prevented from doing that. So I am just asking you to—

Senator WONG: Point of order: he read it in the opening statement.

Senator WATT: It is right here. I can give you a copy.

Senator WONG: Are we really going to ask everybody to sit around and listen to it again? Is that what we are doing?

CHAIR: Would you please answer my question.

Senator Brandis: These are Mr Mischin's words, talking about me: 'He had not been able to form a view on it, and once he had, he discussed the matter with me further.' That is what Mr Mischin said on Friday. It is obviously a paraphrase by him, but it is completely consistent with the position that I knew about the litigation. Everybody knew about the litigation because it was in the papers. I knew my office was dealing with it and I knew that the staff member in my office who was handling it for me, Mr Lambie, had said to me on more than one occasion, 'There's this Bell matter, and you're going to have to make an intervention decision about it fairly soon.' That was it.

I had not read the brief, the submission from the department, at the time Mr Mischin says we had that earlier brief exchange. Then Mr Porter came to see me on 3 March. The reason I can be so confident of this is when Mr Porter sat down with me and we spoke for an hour or so, I remember learning from him things of which I was not aware. I would have been aware of them had I considered the matter beforehand.

CHAIR: Thanks for that, Senator Brandis. You have given that answer before, but then you were asked the same question about five times by others, and the answers have been the same.

Senator Brandis: The answers are the same.

Senator PRATT: But the answers have changed substantially.

CHAIR: The answers have been the same, so thank you for that. We pass now to the Greens, who have amongst themselves decided who is asking questions.

Senator McKIM: It will be me. Attorney, do you have a clean copy of the statement you just provided this committee?

Senator Brandis: I have my own copy.

Senator McKIM: Do you have a clean copy?

Senator Brandis: No, I do not.

Senator McKIM: Could you arrange for one to be copied?

Senator Brandis: I will arrange for that.

Senator McKIM: In real time.

CHAIR: No.

Senator McKIM: I am not asking you, Chair.

CHAIR: You are quite right, you are not asking me—

Senator McKIM: Would you provide a copy to the secretariat?

CHAIR: that is a matter for the Attorney.

Senator Brandis: I will provide a copy to the secretariat, yes.

Senator McKIM: Thank you; in real time.

Senator Brandis: What does that mean?

Senator McKIM: Now.

Senator Brandis: I only have my own copy.

Senator McKIM: Can't your staff organise to print out another copy?

Senator Brandis: Perhaps they are listening and no doubt they will do something about it.

Senator McKIM: Attorney, I have to say this is the lamest series of excuses I have heard since the old, 'The dog ate my homework routine' and we didn't even have a dog.

CHAIR: Do you have a question, Senator McKim?

Senator Brandis: Well, Senator McKim—

CHAIR: Senator Brandis, please. If Senator McKim has a question, he can ask it. If he is going to make a statement, I will go to someone else. I will take the rest of my time.

Senator McKIM: I have a copy of the statement now, Attorney. Thank you, if you had anything to do with that. I want to put to you my understanding of what you have said to us tonight and you can respond as you wish.

Senator Brandis: Will I be allowed to respond without interruption?

Senator McKIM: Yes, for my part; I cannot make commitments on behalf of other members. Would it be reasonable for me to suggest to you that you are relying to a large degree on your inclusion of the words 'I recall' in the statement you gave to the Senate last year, which reads:

The first personal involvement I recall having in the matter was on 3 March this year …

Then the sentence does go on but for the purposes of the question, I will stop there.

Senator Brandis: I rely on the entire statement. It is the case that I recall no involvement in this matter prior to 3 March. That is what I said and that is the position.

Senator McKIM: Yes, you have been clear about that this evening. Attorney, can I put it to you that if you had not included the words 'I recall' in that phrase, that would be an inaccurate phrase?

Senator Brandis: I do not even understand the question. This is the statement I gave.

Senator McKIM: But you are not disputing Mr Mischin; are you?

Senator Brandis: I am not in a position to because I do not recall the exchange and I do not have any reason to doubt that he is telling the truth.

Senator McKIM: I understand that and you have been clear about that a couple of times now. So you do not dispute Mr Mischin's assertion that he discussed this matter with you—

Senator Brandis: I am not that he—

Senator McKIM: Hang on. No, we are not going to do this. If I am going to let you answer uninterrupted, you are going to let me ask questions uninterrupted. Is that reasonable?

Senator Brandis: No, it is not because that is not what Mr Mischin said.

Senator McKIM: No—

CHAIR: Order. If you leave it to me, we might get a bit further. Senator Brandis, let Senator McKim finish his question. If it is wrong or if the premise is wrong, you then have the chance to answer it.

Senator McKIM: Thank you. You are not disputing Mr Mischin's statement that he discussed these matters with you.

Senator Brandis: Mr Mischin did not say that.

Senator McKIM: No, Attorney, I have not finished the question.

Senator Brandis: Mr Mischin did not say that.

Senator McKIM: That he discussed these matters with you prior to 3 March?

Senator Brandis: He did not say that. I will read you what Mr Mischin said.

Senator McKIM: Go on then.

Senator Brandis: I have included every word of Mr Mischin's statement.

Senator McKIM: Just read out the relevant part, Attorney. I am not interested in filibuster from you.

Senator Brandis: I will read out the whole thing because it is very brief.

Senator WATT: We have heard it several times now.

Senator Brandis: May I proceed?

Senator McKIM: I am not after your recollection; I am talking about what Mr Mischin said.

CHAIR: This is what Mr Mischin said. Please answer Senator Brandis.

Senator Brandis: Quote:

My recollection based on some notes that I have is that in early February I spoke to him by phone—

Senator McKIM: Thank you, that will do.

Senator Brandis: No, it will not do because you are cutting me off.

Senator McKIM: It will do.

Senator Brandis: If you are going put a question to me on the basis of what Mr Mischin said to me and then misquote Mr Mischin, that is inappropriate, so I will read what he said:

He—

that is a reference to me—

had only recently returned from leave. I indicated that I wanted to discuss any issues the Commonwealth might have with our legislation that would kill off the Bell litigation.

He indicated to me that he had a very, very preliminary briefing on it, he hadn't been able to form a view on it and once he had he would discuss the matter further with me.

So not only does Mr Mischin not say he discussed the matter with me but he actually says that we did not discuss the matter. He wanted to discuss it and I told him I was not in a position to discuss it. That is what those words say.

Senator McKIM: This is absolute sophistry of the highest order.

Senator Brandis: But—

Senator McKIM: Of the highest order.

CHAIR: Do you have a question, Senator McKim?

Senator Brandis: He said he wanted to discuss it with me and I said I was not in a position to discuss it with him.

CHAIR: Senator Brandis, order! What is the question?

Senator McKIM: Here it my question: can you feel the ice cracking under your feet this evening, Attorney?

Senator Brandis: I do not know—

Senator McKIM: Can you feel it?

Senator Brandis: You seem to moving between serious questions and rhetorical jibes.

Senator McKIM: Can you feel the ice cracking under your feet? Can you feel it?

CHAIR: Order. If this is going to continue—it is not getting us anywhere—we might as well adjourn now.

Senator McKIM: No, we are not going to adjourn now.

CHAIR: Look, ice cracking under feet. I cannot see any ice, so—

Senator Brandis: If I may—

CHAIR: Senator Brandis, please, it would help if both you and the questioner would follow the procedures which I am trying to enforce. Senator McKim, if you have a question—

Senator McKIM: I do.

CHAIR: not about ice, but a serious question on this, would you please ask it and then allow the Attorney to answer it uninterrupted.

Senator McKIM: Attorney, you do not dispute Mr Mischin's recollection, do you?

Senator Brandis: Senator McKim, I do not.

Senator McKIM: That is right.

Senator Brandis: What I dispute is your false assertion that Mr Mischin said he discussed the matter with me when he actually says the opposite. He says, 'I told him I wanted to discuss it.' He told me that he had not been able to form a view of it and, once he had, he would discuss the matter with me. That is not a description of a discussion.

Senator McKIM: That can be your definition of discussion. It is certainly not mine. But in any regards, I do not want to get hung up on semantics here—

Senator Brandis: It is not semantics.

CHAIR: Senator Brandis.

Senator McKIM: Attorney, do not interrupt me, please.

CHAIR: Senator McKim, ask the question, please.

Senator McKIM: I am trying to, but the Attorney is rudely and, in a very defensive way, trying to interrupt me. Attorney, you do not dispute Mr Mischin's recollection. You have been clear about that.

Senator Brandis: I do not dispute Mr Mischin's statement that we did not discuss the matter. No, I do not. He wanted to discuss it and I told him I was not in a position to discuss it.

CHAIR: Senator Brandis, please. Senator McKim, the question?

Senator McKIM: In my view, that is a discussion of the matter. I do not want to get hung up on semantics.

CHAIR: The question, please.

Senator McKIM: The question is this: Attorney, you have relied in a large degree on the inclusion of the words 'I recall' in your statement. I want to put to you the point that I believe Senator Watt and Senator Wong were trying to make; but it did descend into a bit of a rabble, it has to be said—

CHAIR: Do you have a question?

Senator McKIM: when they were making it. I want to put this to you. You used the words, and I will quote from your statement to the Senate:

My first conversation with Mr Mischin, which also involved Dr Nahan, was at about midday eastern time the following day, Friday, 4 March.

Why did you not use the words 'that I recall' or 'I recall' when you made that statement?

CHAIR: Okay, that is the question. I ask the Attorney to answer that.

Senator Brandis: The answer to your question, which I have already tried to explain to Senator Watt here, is because that part of the statement is a chronology. It begins with the words—

Senator WONG: I said it before—

Senator Brandis: Excuse me—

CHAIR: Senator Watt—sorry, Senator Wong. Too many Ws.

Senator Brandis: Senator Macdonald, I am not going to able to respond to any questions if I cannot respond without interruption or interjection. I am taking this seriously. I might be the only one in the room who is, although you are and I think Senator Hinch is.

Senator McKIM: I am certainly taking it seriously.

Senator Brandis: Plainly, the Labor Party is not.

CHAIR: Senator Brandis, could I suggest to you that when there are interruptions you stop talking and leave it to me to try to maintain order. If I cannot, I will shut the hearing down. It would help if you stopped when these interjections happened. We will proceed from there.

Senator Brandis: All right.

CHAIR: Please, your answer.

Senator Brandis: As I said to Senator Watt: because that part of the statement is a chronology. It is introduced with the words:

The first personal involvement I recall in the matter was on 3 March this year…

I then proceed to deal with the events that I recall on and from that point in time. I suppose I could have introduced every sentence for the next four pages with the words 'so far as I recall'—

Senator McKIM: Well, at least that would have been factually accurate.

Senator Brandis: You have just interrupted me.

CHAIR: Senator McKim.

Senator Brandis: You have just interrupted me.

CHAIR: If you have to giggle like schoolgirls, would you leave the room to do it, please.

Senator WATT: Nice sexism.

Senator WONG: You do like to call women schoolgirls.

CHAIR: It is you I am referring to, Senator Watt.

Senator WONG: You do like calling women schoolgirls. It is the second time in this hearing you have done that.

CHAIR: I am referring to Senator Watt. I do not consider him to be a woman.

Senator WONG: I was the one giggling.

CHAIR: Well, I thought it was Senator Watt. He does giggle. Senator Brandis, do you have an answer?

Senator Brandis: I want to resume my answer. Senator McKim undertook not to interrupt me and he did. Do not do that again, Senator McKim.

Senator McKIM: Look, you are not the high commissioner yet, George. Come on.

Senator Brandis: Do not do that again, Senator McKim.

Senator McKIM: I do not have to take instructions from you.

Senator Brandis: You undertook not to interrupt me.

Senator McKIM: I do not have to take instructions from you, Attorney.

Senator Brandis: You undertook not to interrupt to allow me to answer your questions and you proceeded to—

CHAIR: This hearing is suspended for 15 minutes for the evening break. We will resume at five past 10. Can I just say again: if senators continue to interrupt the witness when he is answering questions they have asked, we will close the hearing down. We can come back some other day when you have all recovered and composed yourselves. It is of no benefit to anyone if answers are continually interrupted by inane comments by senators who have asked the questions. The hearing is suspended until five past 10.

Proceedings suspended from 21 : 51 to 22 : 09

CHAIR: Mr Anderson has a correction to make about the Native Title Amendment Act. Is it particularly relevant? We are trying to save time.

Mr Moraitis : We can put it in writing.

CHAIR: I have been advised by other senators that they will be continuing questions on Bell, in which case there is no way in the world we will get to groups 2 and 3 tonight, and so I have advised the secretary that any officers here specifically for groups 2 and 3 could absent themselves, and we might see them another day. I thank the committee for advising me of that, so that we can at least save those public servants the time of waiting here when they are not going to be called.

Senator Brandis: My recollection is that when we adjourned I had been in the course of answering a question put to me by Senator McKim.

CHAIR: I think that is right.

Senator Brandis: I had been interrupted both by Senator McKim and by senators Wong and Watt. You then adjourned the committee. I would like, please Mr Chairman, the opportunity to answer the question without interruption.

CHAIR: Senator McKim, are you here?

Senator McKIM: Yes, I am here, and that would be entirely appropriate.

CHAIR: Senator Brandis, I will allow you to answer that question.

Senator Brandis: The two issues that seem to have arisen in relation to my statement are (1) whether according to Mr Mischin's account he discussed the matter with me in February and (2) the way in which I describe in my statement to the Senate the discussion I did have with Mr Mischin and Dr Nahan on 4 March. Just to make it perfectly clear, I do not recall, as I have said many times, an exchange with Mr Mischin on the Bell matter prior to 4 March, but I am not in a position to and do not dispute his recollection that the matter was raised by him with me. The reason I dispute that that can be characterised in any event as a discussion is based entirely on Mr Mischin's words, which, once again, I quote verbatim:

I indicated that I wanted to discuss any issues the Commonwealth might have with our legislation that would kill off the Bell litigation. He indicated—

That is me—

to me that he had a very, very preliminary briefing on it, he hadn't been able to form a view on it and once he had he would discuss the matter … with me.

How anyone can regard an exchange in which one person says, 'I'd like to discuss something with you,' and the reply is, 'I'm not in a position to discuss it with you,' as a discussion about that issue escapes me.

Senator McKIM: I will stop you there, Attorney. Chair, could I ask you to pause the clock while I take this point of order? I have been pretty generous with the Attorney. He is now over two minutes into the second part of his answer. I have indicated to the chair that due to logistical reasons Senator Rice needs to ask just one question at this time. Attorney, I am very happy for you to continue with that answer but I have committed to my colleague that she will get to ask just one question, for logistical reasons. There are other things happening, obviously, this evening.

Senator Brandis: Okay. That is fine.

Senator McKIM: Could I ask you, Attorney—

Senator Brandis: I have not finished my answer.

CHAIR: Senator McKim has made a point of order but it is really a request. What we will do, Senator McKim, is: it would be the government's turn, so I will allow three minutes out of my time for Senator—

Senator Wong interjecting

CHAIR: I did not have a turn last time.

Senator McKIM: Attorney, how much longer have you got on this answer?

CHAIR: I am taking it back, but I am going to do it only to give Senator Rice three minutes to ask whatever questions she wants and then I will return to the Labor Party. But I will only do that for the Greens provided they never tell anyone that I have been so generous to them! Senator Brandis, could you please complete your answer.

Senator Brandis: The first point I wanted to make as to the characterisation—by Mr Mischin himself—of the exchange of February, which he recalls but I do not, I have made. The second point on which I have been interrogated is the fact that, in my statement on 28 November, I introduce a sentence with the words:

My first conversation with Mr Mischin, which also involved Dr Nahan, was at about midday eastern time the following day, Friday 4 March.

It is asserted that, because I do not use in that sentence the words 'the first conversation I recall' there is somehow something unsatisfactory about that sentence, to which my response is twofold. First, that sentence appears in a paragraph introduced with the words, 'The first personal involvement I recall having in the matter was on 3 March', and for the next several paragraphs the statement recites a chronology. Obviously and necessarily, if I have already said, 'The first involvement I recall was on 3 March', then I am saying, necessarily, that I recall nothing prior to 3 March. Lastly, I suppose from a stylistic point of view I could have introduced every single sentence in the chronology with the words, 'So far as I can recall', but because I have introduced the first sentence of the first paragraph of the chronology with the words 'So far as I can recall', I think as a matter of the ordinary reading of the English language the only fair interpretation, which is certainly what I intended to be understood to say, is that everything that goes after the introductory words, 'The first personal involvement I recall' is intended to be introduced and qualified by those introductory words.

CHAIR: That was always very clear to me, but anyhow—

Senator RICE: Yes, and we will be returning to the Bell Group issue. But my question is on a completely different topic, which may be appreciated for the next three minutes, and it is regarding the proposed marriage equality plebiscite.

Senator Brandis: Oh, yes.

Senator RICE: There was a report in The Australian yesterday entitled, 'Party "deplorables" tried to bring PM undone'. My question is in fact on behalf of these deplorables, and in particular our colleague Senator Abetz—and I am not sure why he is not here tonight asking this question himself. He is reported as having asked via text message to this group of deplorables—and so this is my question—'MYEFO took plebiscite funding out of the forward estimates. How can it be our policy if we do not intend to fund it?'

Senator Brandis: So what is the question?

Senator RICE: The question is: how can the marriage equality plebiscite continue to be government policy if there is no longer any budget allocation to fund it?

Senator Brandis: Senator Rice, first of all, you should not feel at all concerned about changing the subject. I enjoy nothing more than talking about language because language is one of my first loves.

Senator WONG: There is a whole new Brandis dictionary. 'I recall' gets scattered over pages like confetti.

Senator Brandis: As anybody who knows me well knows, I suspect I am the only person in the parliament who owns both the first and the second editions of the Oxford English Dictionary. But I do not want to be flippant, Senator Rice. Coming to your question, might I remind you that, had the plebiscite bill passed the parliament, there would have been a plebiscite on 11 February. Two things, in my view, would have happened. First of all, the plebiscite would have returned a yes vote. Every piece of empirical evidence and public opinion research we have tells us there would have been a yes vote. Had there been a yes vote—

Senator RICE: This feels just like question time. A point of order on relevance.

Senator Brandis: then it was my intention to introduce the bill, the exposure draft of which I published late last year, into the parliament on Tuesday, 14 February. The bill would have been passed by now, and there would be marriage equality in Australia by now. So those who blocked the plebiscite have only themselves to blame for the fact that we do not have marriage equality in Australia today. The second outcome of the plebiscite would have been that the so-called hurtful public discussion, which so condescends to and infantilises gay people as if they are not up for a robust discussion, would have been finished rather than prolonged. I say those who—particularly the Labor people like Senator Wong—pretend to believe in this as a cause and played political games with gay peoples' lives should hang their heads in shame. That will be a stain upon your public reputations until the day you die.

Senator RICE: That was not my question.

Senator Brandis: In relation to allocation for the plebiscite from the MYEFO, the plebiscite bill was defeated.

Senator RICE: How can it remain as government policy, then, if it is not going to be funded? As Senator Abetz asked—

Senator Brandis: The plebiscite bill was defeated. This is really a question of the way in which Finance treats policy proposals. But if a bill which involves an expenditure of public money is presented to the parliament and defeated, then I imagine that the Department of Finance would routinely remove—

Senator RICE: I think the government could have said that the money should stay there—surely. It is the government's budget; it is not the department's.

Senator Brandis: I am not the Minister for Finance. Maybe this question would be better directed to Senator Cormann. What I should imagine would be a rational thing for the Department of Finance to do is, if a bill that involves the expenditure of a given sum of public money is defeated, then the appropriation for that expenditure would be removed from the forward estimates or from the budget papers. That is what I imagine. But the design and treatment of the budget papers is not something that is in my remit. As to whether the plebiscite remains the government's policy, it remains the government's policy until otherwise.

Senator WONG: Senator Brandis, can I take you back to your statement in the Senate of Monday, 28 November. When did you start preparing that statement?

Senator Brandis: I do not remember. Obviously sometime before it was given. It was a prepared statement. Let me take that on notice.

Senator WONG: You have said in this hearing, 'We all read the newspapers. I know about the matter. This had become a notorious public fact.' I do not need to take you through the very large number of media articles in the period leading up to the statement.

Senator Brandis: And, by the way, Senator Wong, I am not saying that I read all of the media articles—

Senator WONG: I did not ask you that question.

Senator Brandis: but I have read enough of them to know about the litigation.

Senator WONG: Thank you. You will also recall that I wrote to you indicating that we were intending to request that you give a statement.

Senator Brandis: Now, remind me when you sent me that letter.

Senator WONG: I think it was that morning, in fact.

Senator Brandis: What I recall occurred is that, before I had received your letter, which was before the Senate met on the Monday morning, I had decided to make a statement, because I recall that we had a discussion across the table in the Senate chamber and I said to you informally, and then I said in the Senate on the record, that it should not be taken from the fact that you, the opposition, moved a motion calling upon me to make a statement that I would somehow be making a statement under sufferance, because I already proposed to make a statement.

Senator WONG: Sure.

Senator Brandis: You accept that, do you not?

Senator WONG: That is not quite correct, because you made this statement at 10 am immediately. You rang me beforehand saying that you intended to.

Senator Brandis: That is right.

Senator WONG: I wrote to you and I gave notice in that letter that we would move to suspend standing orders should you not avail yourself of the opportunity—

Senator Brandis: And the point I made was the suspension was unnecessary.

Senator WONG: And you did, that is true, because you also knew we had the numbers. But that is not the point.

Senator Brandis: No, no. That is not the reason either—

Senator WONG: Well, that is not the point. That is not my question.

Senator Brandis: because you have attributed a motive to me, Senator Wong.

CHAIR: Order!

Senator WONG: Okay. I withdraw it.

CHAIR: Order! This is not a debate.

Senator WONG: I withdraw that, Chair.

CHAIR: Can you ask the question.

Senator WONG: We can have that discussion. I am trying to ask questions. So you said you will take on notice when you started preparing that statement.

Senator Brandis: Yes.

Senator WONG: You say it was sometime before. Now, you have very regularly told us that you like very precise use of language.

Senator Brandis: Well, I try, Senator.

Senator WONG: Right. I assume, therefore, you did take some effort when preparing this statement to check various records to ensure that the statement that you were about to give the parliament was correct.

Senator Brandis: Well, you should not assume that. The first part of what you have put to me is right: it was a prepared statement and I did take care with it, but it is not right to say that I had access to, to use the phrase, 'various records'. I did not, for example—

Senator WONG: Okay.

Senator Brandis: No, let me explain. I did not, for example, have access to departmental files, because—

Senator WONG: I did not ask that.

Senator Brandis: Well, you said 'various records'.

Senator WONG: Okay, let me—

Senator Brandis: No, no—

Senator WONG: Did you first undertake any searches in your office for diary entries in order to help prepare the statement?

Senator Brandis: Well, I do recall looking at some documents that were in my office, though which particular documents I would not be in a position to tell you. But the point I was going to make to you before is that, because the statement came on on Monday morning, and it certainly had not been prepared the previous week, for example, I did not have access to departmental files. So the statement could have been a lot fuller and a lot longer, but I was satisfied that the statement that I had prepared—and I remain satisfied that the statement I prepared—was of the appropriate substance and length to meet the occasion.

Senator WONG: Did you check your diary in the course of preparing the statement to ensure the dates were correct?

Senator Brandis: Well, look, I am going to take that on notice and reflect on it. I think the answer is yes, because we did establish the date of my meeting with Mr Porter, and that could only have been done by reference to the diary, and we did establish the date of my teleconference with Mr Mischin and Dr Nahan. Now, I independently remembered that that was the day after my meeting with Mr Porter, but in any event we established that by reference to the diary too. So at least in relation to what I have always said, and continue to say, it was the pivotal meeting—the meeting from which I date my first personal involvement, the meeting with Mr Porter. That date was established by reference to a diary entry.

Senator WONG: I would really appreciate it if you could just answer the question I am asking. Did you consult your diary to confirm this sentence:

My first conversation with Mr Mischin, which also involved Dr Nahan, was at about midday eastern time the following day, Friday 4 March.

Senator Brandis: I think I have just answered that. I did consult my diary to establish the date of the meeting with Mr Porter, and the subsequent teleconference with Mr Mischin and Dr Nahan the following day. As I pointed out in answer to the earlier question, the sentence you quote must be read in the context of the sentence that introduces the paragraph in which that sentence sits—

Senator WONG: It is not in that paragraph; it is three paragraphs prior.

Senator Brandis: Well, it is, in my statement, Senator.

Senator WONG: Well, that is nice.

Senator Brandis: It is in my statement—

Senator WONG: Can I keep asking questions?

Senator Brandis: and I am the author of my own statements.

Senator WONG: Hansard is the legal record. Can I keep asking questions, or are you just going to—

Senator Brandis: I am sorry, are you going to say that because Hansard arbitrarily puts in a paragraph break that does not appear in the text that I read in the chamber that that is a significant fact? The fact is that the sentence on which you rely—

Senator WONG: Senator Brandis, I have questions. You are wasting our time.

Senator Brandis: is introduced by the words:

The first personal involvement I recall …

Senator WONG: The sentence is:

My first conversation with Mr Mischin, which also involved Dr Nahan, was at about midday eastern time the following day, Friday 4 March.

Now, if we assume that what you have said is correct, and you did consult your diary to ascertain that date, can I ask you on what basis you told the Senate that that was your first conversation?

Senator Brandis: Because that was my own recollection.

Senator WONG: Right. Did you look at your diary to check whether, in any of the weeks prior to 4 March, you had had any conversations with Mr Mischin?

Senator Brandis: Not at the time, because that was the first conversation I recall.

Senator WONG: Have you subsequently?

Senator Brandis: Yes.

Senator WONG: And have you found anything?

Senator Brandis: Yes, I have. There is no reference in my diary to a conversation with Mr Mischin at an earlier time.

Senator WONG: Is there any reference in any document that you have cited, or been advised about, of a conversation prior to 4 March with Mr Mischin?

Senator Brandis: I will take that on notice, because I—

Senator WONG: You cannot tell us?

Senator Brandis: I will take it on notice.

Senator WONG: Have you spoken to your staff about this?

Senator Brandis: I will ask my staff. That is why I am taking it on notice.

Senator WONG: Have you spoken to your staff about these matters?

Senator Brandis: I have spoken to my staff about the Bell matter very often.

Senator WONG: I am sure. Have any of your staff advised you of their knowledge of a phone call prior to 4 March with Mr Mischin?

Senator Brandis: I will make that inquiry—

Senator WONG: You have not asked them?

Senator Brandis: and I will take the question on notice.

Senator WONG: Have you checked your phone records?

Senator Brandis: No.

Senator WONG: So when you said—just so we are clear—

Senator Brandis: Let us be clear—

Senator WONG: Well, I am asking a question.

Senator Brandis: I have checked my diary to find—

Senator WONG: You gave an incorrect statement to the Senate—

Senator Brandis: That is not correct.

Senator WONG: Well, it is:

My first conversation with Mr Mischin …

Senator Brandis: 'That I recall'.

Senator WONG: No, you are interpolating that.

Senator Brandis: The first personal involvement I recall …

Senator WONG: You are reading from a different paragraph!

Senator Brandis: The introductory sentence of the paragraph!

CHAIR: Order! Order! Order!

Senator WONG: I am asking you whether any of your staff—

Senator Brandis: I will table the statement which I read—

CHAIR: Senator Wong and Senator Brandis, can we just stop for a moment? Let's have a question and then listen quietly to the answer.

Senator WONG: Well, I am happy to ask a question.

Senator Brandis: I would like to table my statement.

Senator WONG: Well, I will table the Hansard. Fine, we can table the Hansard and we can see three paragraphs between 'I recall' and that statement of fact—

CHAIR: Order! Order!

Senator WONG: I am tabling the Hansard, Chair.

Senator Brandis: You do not need to table the Hansard; it is a public document—

Senator WONG: I am going to, because this is ridiculous.

Senator Brandis: but I will table my statement where it will be apparent—

CHAIR: All right, Senator Brandis. You have tabled your statement.

Senator Brandis: Senator Wong seems to think the fact—

Senator WONG: Chair, can I ask a question?

CHAIR: Yes, you can.

Senator WONG: Thank you, I would really appreciate that.

Senator Brandis: Excuse me, Mr Chairman, may I finish what I was saying?

CHAIR: No, Senator Brandis. You have tabled a statement. Senator Wong will ask a question, and you can answer that.

Senator Brandis: But I have not finished answering the previous question.

Senator WONG: I am asking: to your knowledge, do any of your staff have any knowledge of a conversation prior to 4 March between yourself and Mr Mischin?

Senator Brandis: And I have taken that on notice so I can inquire.

Senator WONG: All right. So I am clear: Mr Mischin says, 'My recollection, based on the notes I have, is that in early February I spoke to him by phone. He'd only recently returned from leave.' I just want to confirm: when was your leave?

Senator Brandis: Well, it was in January.

Senator WONG: So that is consistent with Mr Mischin's statement.

Senator Brandis: I am sorry—has that statement of mine been tabled, Chair?

CHAIR: Yes, it has. You wanted it tabled, and I accepted it.

Senator Brandis: Well, can I please explain why it is important?

Senator WONG: Chair, I have not asked this.

Senator Brandis: Chair, perhaps you would be kind enough to allow me to explain.

Senator WONG: Can I have my 15 minutes, and then he can?

CHAIR: I will come back to you to do that, Senator Brandis, but Senator Wong is halfway through her question, and if she can ask it you can answer it. Then I will come to you, Senator Brandis, and you can table your—

Senator WONG: Mr Mischin's statement—or transcript—is: 'My recollection, based on the notes I have, is that in early February I spoke to him by phone. He'd only recently returned from leave.'

Senator Brandis: That is right.

Senator WONG: That is consistent with you having recently returned from leave at the end January. Correct?

Senator Brandis: I think that is right. I was on leave in January.

Senator WONG: Thank you. Are you saying to us that neither you nor anyone in your office, even now, after Mr Mischin's statement has been made public, has any recollection of a conversation between you and the Attorney-General of Western Australia regarding a matter that was worth in the order of, was it, $300 million to the Commonwealth?

Senator Brandis: I am sorry—the tendentious way you have put that completely misrepresents the occasion. Mr Mischin—

Senator WONG: Well, is—

Senator Brandis: Let me say—

Senator WONG: Do they know or not?

CHAIR: Senator Wong, you have asked the question. Let the witness answer it.

Senator WONG: Do you recall or not?

CHAIR: Senator Wong, let the witness answer.

Senator WONG: Okay.

CHAIR: Senator Brandis.

Senator Brandis: Let me say for the umpteenth time that I do not recall the exchange to which Mr Mischin refers.

Senator WONG: Do any of your staff?

CHAIR: Senator Wong, please.

Senator Brandis: I have not finished my answer.

CHAIR: Please continue, Senator Brandis.

Senator Brandis: I did say in my statement to this committee tonight:

Of course I do speak to Mr Mischin from time to time. Early last year, I had a telephone conversation with him, at his request, for the purpose of discussing the appointment of a judge to the Family Court of Western Australia. It may be, though this is only conjecture on my part, that Mr Mischin said something to me about Bell at the end of that conversation—though, as I say, if he did, I do not recall it.

So this is an exchange that I do not recall of something being raised with me that, on Mr Mischin's own account, did not result in a discussion, because, as Mr Mischin says, I said to him, 'I can't discuss this with you, because I don't know anything about it,' or words to that effect. Now, I have checked my diary, and there is no record in my diary of a discussion with Mr Mischin in 2016 prior to 4 March. I would not necessarily expect there to be, because it is not my normal habit to diarise telephone conversations. I have Mr Mischin's mobile number in my phone; he has mine in his phone. But the 4 March conversation was actually set up by my office as a teleconference because it involved not only Mr Mischin but Dr Nahan and it was a serious business matter; it was not a brief phone call.

CHAIR: Thank you for that. We will come back to you for five minutes, Senator Wong.

Senator WONG: Thank you. I appreciate that.

CHAIR: Senator Brandis, you wanted to table this statement, which I said we would come back to you on, and you wanted to explain the tabling.

Senator Brandis: Yes, Chair. Let me explain why I do want to table. That is the reading copy of my speech to the Senate, and I know we are kind of getting into, 'How many angels can dance on the head of a pin?' territory here, but Senator Wong seems to think that there is something significant about the fact that the words, 'My first conversation with Mr Mischin' appear in a different paragraph from the words, 'My first personal involvement that I can recall'. The point I make, and the point that is made by tabling the reading copy of the statement, is that they actually appear in the same paragraph. The words, 'The first personal involvement I recall' are the introductory sentence to the paragraph in which the sentence upon which Senator Wong places so much reliance also appears—

CHAIR: Senator—

Senator Brandis: If I may finish, please, Mr Chairman. On any reasonable reading of the English language, the introductory words of the paragraph qualify all that follows.

CHAIR: You have explained that a number of times, which I understood the first time.

Senator WONG: I understand it too; it is just not believable.

CHAIR: Just for clarity: which is the paragraph you are talking about? On page—?

Senator Brandis: I think it is about—can you hand it to me, Mr Chairman?

Senator WATT: It is such a shame the formatting wasn't done right, isn't it—that would clear up everything! It is just absent paragraphing!

Senator WONG: Can I finish this off, chair?

Senator Brandis: Perhaps if the secretariat will pass it back, I will mark it. It is on page 4 and it is the paragraph beginning two thirds of the way down the page which, as I said, is the introductory words of the paragraph containing the sentence upon which Senator Wong's entire case seems to have been.

Senator WONG: Just so we are clear, to summarise: Mr Mischin tells us that he spoke to you on 3 February. Your statement to the Senate, prepared with some care, says very clearly, 'My first conversation with Mr Mischin was on Friday, 4 March.' Your assertion is that the Senate and the public should infer from a sentence much earlier in your statement—

Senator Brandis: No, eight sentences earlier.

Senator WONG: Much earlier in your statement.

Senator Brandis: No, eight sentences earlier, in a 20-minute statement.

Senator WONG: May I finish?

Senator Brandis: You have just misinterpreted things again—

Senator WONG: We should infer that a statement much earlier in the statement—when you said, 'The first personal involvement I can recall'—means that 'I recall' appears throughout the remainder of your statement. This beggars belief. Do you reckon you would get away with that as a legal argument in the court? You are the QC; tell me if that works.

CHAIR: Senator Brandis, if that is a question, you can answer it.

Senator Brandis: Thank you.

Senator WONG: Do you think that really is a credible argument?

CHAIR: You have asked a question—well, you have framed it as a question. I doubt it is, but if it is, Senator Brandis, would you like to answer it?

Senator WONG: How can you tell us that is a credible argument, Senator Brandis?

CHAIR: I suspect this will be for the 15th time.

Senator Brandis: I will answer it for the umpteenth time. As is now clear to you, from the reading copy of the statement which I tabled—

Senator WONG: Things would be much easier if you just told the truth, you know; you would not have to construct this farrago of lies. Really, you are the first law officer and you just construct a farrago of lies—and it catches up with you.

CHAIR: Senator Wong, please behave and exercise some courtesy and manners.

Senator WONG: Yes, I will. I will try to stop giggling like a schoolgirl!

CHAIR: Senator Brandis, you have the call.

Senator Brandis: Thank you. As will be now apparent from the reading copy of the statement which I have tabled, the sentence upon which Senator Wong's entire case seems to depend falls within a paragraph introduced with the words, 'The first personal involvement I recall'. Contrary to her assertion that those words are distantly separated from the other—

Senator WONG: The plain English is, 'My first conversation.'

CHAIR: Senator Wong, please behave.

Senator WONG: He is just making stuff up!

Senator WATT: Are there any other paragraphs that are in the wrong place?

CHAIR: Senator Watt, please do not follow your leader. Can you behave as well.

Senator WATT: Is the first paragraph in the right spot? Is the third?

CHAIR: Do you want us to call this hearing off?

Senator WATT: It is just a joke.

Senator RHIANNON: Can I have my time?

CHAIR: Yes, you can. I am allowing Senator Brandis to finish. Senator Wong asked for one question, which I, out of the goodness of my heart—I never know why—allowed her to ask beyond her time on the basis that it was one question and that Senator Brandis would have the opportunity of answering it without interruption. We are trying to get to that point, and then, Senator Rhiannon, I will go to you for what was to be 15 minutes, which will now be the last 15 minutes. Senator Brandis, could you complete your answer.

Senator Brandis: Thank you, Mr Chairman. As will now be apparent from the reading copy of my statement, which I have tabled, the sentence upon which Senator Wong's entire case appears to rely appears in the same paragraph introduced by the introductory words, 'The first personal involvement'—

Senator Watt interjecting

CHAIR: Senator Watt, you really are not only childish but also discourteous. Would you please keep quiet.

Senator WATT: What does that make Senator Brandis?

CHAIR: Would you please keep quiet!

Senator Brandis: As will be apparent from the reading copy of my statement, which I have tabled, the sentence upon which Senator Wong's entire case depends appears in the middle of a paragraph introduced by the opening words, 'The first personal involvement I recall'. Contrary to what Senator Wong has asserted, the sentence on which she relies is not distant from that sentence in the text of the speech but, in fact, falls within the same paragraph about eight short sentences later. On any reading of the English language, it is perfectly clear—

CHAIR: It is perfectly clear to me, and you have said that now 15 times.

Senator Brandis: that the words in the paragraph—

Senator WONG: Ignore plain English and just add some words!

Senator Brandis: are qualified by the introductory sentence of the paragraph.

CHAIR: Thank you very much, Senator Brandis. It is perfectly clear. That is the 15th time you have answered it. I understand it, and most fair-minded people will understand exactly the point you make. It is not for me to say, but thank you for that. Senator Rhiannon, you now have, thanks to those interruptions, 14 minutes—13 minutes.

Senator RHIANNON: In estimates on Monday of this week, Senator Brandis, you argued that Senate order 20C, for rolling disclosure of meetings with former ministers, is potentially invalid on the basis of advice from the Clerk of the House of Representatives. The Greens have obtained today advice from the Acting Clerk of the Senate, Mr Richard Pye, which confirms that the order is valid.

Senator Brandis: That does not surprise me, Senator Rhiannon.

Senator RHIANNON: I would like to table the letter, please, Chair. Could I table that letter?

Senator Brandis: Senator Rhiannon, I am not at all surprised—

Senator RHIANNON: Minister, I am still asking for—

Senator Brandis: I am sorry, but I am not at all surprised.

CHAIR: Senator Brandis, please let Senator Rhiannon complete her—

Senator RHIANNON: I seek leave to table it.

CHAIR: Just explain what this is, please, Senator Rhiannon.

Senator RHIANNON: It is a letter from the Acting Clerk of the Senate dated today under the subject line 'Senate order on former ministers and lobbying meetings'.

CHAIR: Yes, the committee agrees to that being tabled. What is your question?

Senator RHIANNON: I am seeking leave to table this document.

CHAIR: Yes, leave is granted.

Senator RHIANNON: He has done it? Okay. I did not hear. Thank you. The order seeks to bind ministers in the Senate in their capacity as representing ministers in the House. Will you commit to comply with the basic transparency now that the reach of the order has been clarified, Minister?

Senator Brandis: No because—

CHAIR: Sorry, have you got a copy of this, Senator Brandis?

Senator Brandis: It has just been handed to me.

CHAIR: Have you read it?

Senator Brandis: No, I have not.

CHAIR: If you are being asked about it, perhaps you should read it.

Senator Brandis: I can answer the question, Mr Chairman. The answer to your question, Senator Rhiannon, is no for these reasons: firstly, I have not read the advice from Mr Pye and I want to look at it carefully and, secondly, I am told, though I have not read it, that there is contrary advice from the Clerk of the House of Representatives. I see you smiling like a crocodile, Senator Macdonald. As those like Senator Macdonald, the Father of the Senate, who have been around for a long time will know, the history of conflicting advice between the Clerk of the Senate and the Clerk of the House of Representatives is, I suspect, as old as federation itself. Surprise, surprise—the Clerk of the Senate always takes a view that is defensive of the rights and prerogatives of the Senate and the Clerk of the House of Representatives invariably takes a view that is protective and defensive of the rights and prerogatives of members of the House of Representatives. I do not know who is right. All I knew yesterday when I was answering those questions is that there was advice to the effect I expressed by the Clerk of the House of Representatives. I now know, because you have shown it to me, that there is advice to the contrary effect from the Clerk of the Senate. So what I would like do is read the advice from the Clerk of the House of Representatives, read the advice from the Acting Clerk of the Senate and make my own mind up.

Senator RHIANNON: The first sentence of the third paragraph reads:

… the order requires Senate ministers to provide information about their own portfolios …

That is in the first instance. Do you dispute that?

Senator Brandis: Do I dispute what—that it says that?

Senator RHIANNON: What I just read out.

Senator Brandis: Sorry—are you asking me whether I dispute that that is what it says?

Senator RHIANNON: Are you disputing that you will not follow that order?

Senator Brandis: I have just told you. The answer to your question is no, at least until, having examined the advice of the Clerk of the House of Representatives and having examined this advice, I arrive at my own view as to what I think is the correct position.

Senator RHIANNON: Why has the government failed to act to clarify the effect of order 20C for three months when it took us 24 hours to get this advice from our clerk?

Senator Brandis: Because the issue has only in the context of these estimates.

Senator RHIANNON: You are contradicting the evidence that you gave in an earlier estimates—

Senator Brandis: Really, how am I doing that?

Senator RHIANNON: when you said that you knew about this before these estimates—

Senator Brandis: Yes, that is true.

Senator RHIANNON: when you said you had been informed—

Senator Brandis: That is correct.

Senator RHIANNON: Thank you.

Senator Brandis: Well, how is that contradictory?

Senator RHIANNON: Could you now give your correct version that you will stick by?

Senator Brandis: I am sorry. I am lost to understand the contradiction. I said that I knew about it. Well, I did. I also said that the issue does not arise until these estimates are convened. That is also the case.

Senator RHIANNON: But you say it had not arisen until the estimates, but in estimates you told us how you already knew about it. You twist—

Senator Brandis: I am sorry, Senator Rhiannon, I did know about it, but the issue did not present itself until these estimates arose. I just do not follow what you are saying, I am sorry.

Senator RHIANNON: Which is, again, the classic that you use in every estimates. When you are facing a difficult question you say—

CHAIR: Senator Rhiannon, if you have questions, ask them. If you just want to chastise the minister or abuse him, that is not parliamentary.

Senator Brandis: Do not worry. I am used to it. Senator Rhiannon, I am sorry—I make no apology for being unable to follow your train of thought, on occasions.

Senator RHIANNON: No, it is not about what I am saying. There is a clear order that the Senate has passed. So the question that now arises is: will you instruct your department to comply with the order from now on?

Senator Brandis: Well, that is not the question that arises, with respect.

Senator RHIANNON: Well, it is a question I am asking.

Senator Brandis: The question that arises is as to the validity of the order, and there are contrary views about it, and I have not arrived at my own view. But, when I arrive at my own view, I will give some advice to the government.

Senator RHIANNON: So is that how you act on everything that comes before the Senate? It is up to you interpreting and providing your own view, rather than going on—

Senator Brandis: You are asking me about whether or not a particular order of the Senate should be complied with, which depends upon its validity. And, for reasons that I explained to you—or explained to another Senate committee, I should say, yesterday—an issue has arisen about its validity. Now, you have produced in the last few minutes some advice from the Acting Clerk of the Senate that upholds the validity. So there is dispute between the two clerks, apparently. That is nothing unusual. It is nothing unusual that two people might have different views about a particular order of the Senate or of the House of Representatives, for that matter, but I will consider both and arrive at my own view.

Senator RHIANNON: Mr Moraitis, what role have you had in ensuring this code is followed?

Mr Moraitis : I have not been aware of this issue till you brought it to our attention now. We will look into that.

Senator Brandis: I am not sure that it is really an issue for the Public Service, because this is a question of the privileges of the parliament. It may be, Senator Rhiannon, that Mr Pye is right and the House of Representatives Clerk is wrong. I do not have a view of that fact yet, because I have not thought about it carefully. But I am just flagging to you that, evidently, there is a difference between the two and, therefore, it is perfectly—I hope you would accept—reasonable for the government not to take steps until it has arrived at its own view as to which of those different points of view is correct.

Senator RHIANNON: Further to some of your comments yesterday, Minister, I put your view—and these were your words: '"Lobby, advocate or have business meetings" in the Statement of Ministerial Standards mean the same thing as the Lobbying Code of Conduct, which defines lobbyists only as'—

Senator Brandis: Well, I did not say that, actually.

Senator RHIANNON: No, you repeated it many—

Senator Brandis: Excuse me, Senator, I did not say it means the same thing.

Senator RHIANNON: Minister, you are interrupting me every time I try and ask a question, and I think you should listen to the whole question.

Senator Brandis: Well, you are just misquoting me.

CHAIR: Sorry, I was distracted. Can you start your question again, Senator Rhiannon, and I will listen intently. Senator Rhiannon?

Senator Brandis: I am a bit fussy about language, as you are aware—

Senator RHIANNON: Yesterday the minister, the first time that we discussed this matter, put his view, and these were his words, '"Lobby, advocate or have business meetings" in the Statement of Ministerial Standards mean the same thing as the Lobbying Code of Conduct, which defines "lobbyists" only as third-party lobbyists, rather than, for instance, industry associations like the Business Council of Australia or the Queensland Resources Council.'

Senator Brandis: What document—

CHAIR: Senator Brandis, I have not heard the question yet—

Senator RHIANNON: I am now coming to my question. Your contention was that, because of the narrow definition of 'lobbyist' in the Lobbying Code of Conduct, the Statement of Ministerial Standards does not apply in Mr Macfarlane's situation. Is that still your view?

Senator Brandis: Before I answer that, you are attributing some words to me—from what document are you quoting?

Senator RHIANNON: I really think that it is fair that you answer—

Senator Brandis: No, I think that it is fair to me that if you are going to attribute words to me you tell me what your source it.

Senator RHIANNON: It continues on from a very clear conversation we had yesterday and you are using classic tactics when you do not answer the question.

Senator Brandis: No, I do want to answer the question. I will answer the question, but, before I do, I want to know whether you are quoting me in direct speech or merely your interpretation or paraphrase, or some third-party's paraphrase, of what I said. Which is it?

Senator RHIANNON: You put the view—

Senator Brandis: What document are you quoting from?

Senator RHIANNON: They were my words. You put your view that the words—and the words are from the Statement of Ministerial Standards—'lobby, advocate or have business meetings' mean the same thing. You made that comparison a number of times, trying to dilute the argument by comparing it to lobbyists, which has got nothing to do with it.

Senator Brandis: Why won't you tell me what document you are quoting from?

Senator RHIANNON: I am relaying the conversation we had yesterday.

Senator Brandis: So you are not quoting from a document.

Senator RHIANNON: Chair, I would like to move on to another question to try and get some answers.

Senator Brandis: I am sorry, Senator Rhiannon, if you are not quoting from a document, you should not have attributed words to me which are now revealed to be your recollection of what I said. If you are reading from Hansard—there is only one official record of this—

Senator RHIANNON: The Hansard was not out when I came to it. It is quite an accurate representation.

Senator Brandis: Okay, that is fine. So what you said is not strictly correct; however, let me say again what I said last night. In interpreting those words in the Statement of Ministerial Standards, in my view, one would look in the first instance to the definition of 'lobbying' in the lobbyists code. Now, that is not quite what you said.

CHAIR: Senator Rhiannon, if you want to be more specific, would you like to put a question on notice about that and refer Senator Brandis to where he said those words?

Senator RHIANNON: I will certainly come back to it, because—

Senator Brandis: I think it is a narrow difference, particularly given the absurdity of—

Senator RHIANNON: Thank you—it is good that you have come to a 'narrow difference'—

Senator Brandis: It is a narrow difference, Senator Rhiannon, given the absurdity of the last two hours.

CHAIR: Senator Brandis, that will do. Senator Rhiannon wanted to ask one other question on a different matter.

Senator RHIANNON: With regard to, effectively, what has now played out, you are avoiding dealing with a substantive issue, which is about Mr Macfarlane's—

Senator Brandis: How am I avoiding it?

CHAIR: It is not a different question, but let the senator finish the question, and then you can give your answer, Senator Brandis. It will be the last question and answer for the night.

Senator RHIANNON: It is about Mr Macfarlane's involvement in making representations on behalf of—

Senator Brandis: Queensland Resources Council.

Senator RHIANNON: his new employers to ministers in the government.

Senator Brandis: What is your question?

Senator RHIANNON: My question is: do you acknowledge that has happened?

Senator Brandis: That what has happened—that he has made representations?

Senator RHIANNON: Yes.

Senator Brandis: I know he has made representations.

Senator RHIANNON: And you are basing that on your direct knowledge—

Senator Brandis: Yes.

Senator RHIANNON: or on that statement?

Senator Brandis: On my direct knowledge.

Senator RHIANNON: He has made representations. What form have those representations taken?

Senator Brandis: Well, the issue on which I know that Mr Macfarlane has made representations is in relation to amendments to the Native Title Act.

Senator RHIANNON: Right. So, how many meetings has he had with you about that?

Senator Brandis: Meetings? None.

Senator RHIANNON: How many conversations has he had with you about that?

Senator Brandis: Several.

Senator RHIANNON: And he has put a case for the changes going ahead?

CHAIR: Well, I am not sure that he would be willing to answer that.

Senator Brandis: I am comfortable answering that, because what Mr Macfarlane has said to me in telephone conversations is nothing different from what he has said on the public record and in media statements, and that is that he urged the government to move legislatively to correct for the McGlade decision and then congratulated the government on its promptness in doing so.

Senator RHIANNON: Do the comments coming from the Townsville Bulletin about Mr Macfarlane saying that he would talk to his 'good mates in Canberra', along the lines of 'in order to make sure our native title laws are amended in the wake of a Federal Court decision which threatens the Adani coalmine' sum up the essence of how he has approached you and other ministers?

Senator Brandis: No, for two reasons in my particular case. First of all, I do not know that Mr Macfarlane would call me a good mate of his, but I do have a cordial relationship with him. Secondly, although Mr Macfarlane was of that view, as he has said both publicly and privately, independently of Mr Macfarlane, I was also of that view, and others, even before Mr Macfarlane—including Dr Lynham, the Queensland Labor minister for mines—had urged that view upon me. So I agree with Mr Macfarlane, or, perhaps, Mr Macfarlane agrees with me; we agree with one another. But any decision I may have made and any recommendation I may have made to the government was not influenced by Mr Macfarlane, because it was a view I already held. But, that having been said, I do not want to be ungracious. I welcome his input.

Senator RHIANNON: Coming back to Mr Macfarlane: if you accept order 20C, wouldn't you then agree—considering the cooling-off period still stands—that Mr Macfarlane's actions are inconsistent with order 20C?

Senator Brandis: Well, I do not think that is right, because Mr Macfarlane was not acting, in my view, as a lobbyist, for the reasons I explained yesterday, because, in my view—and this is consistent with the lobbyist code of conduct—to be a lobbyist, you have to be a paid third party—

Senator RHIANNON: Point of order, Chair. This is where you keep muddying the waters. It is not about the lobbyist code of conduct. It is about post-ministerial employment, 2.24, and that is not about that lobbyist code that you keep quoting.

Senator Brandis: But you are the one who referred to it.

Senator RHIANNON: No, I was referring to it to show your inconsistency. You know what 20C is, and there is post-ministerial employment. That was what my question addressed. Isn't that where he has been—

Senator Brandis: If that is the footing on which you are putting this to me, in nothing Mr Macfarlane said to me—which is no different, by the way, from anything he has said on the public record—was he drawing upon information which he had received in his capacity as a minister.

Senator RHIANNON: To remind you of those words:

Senator Brandis: Senator, could I finish the point.

Senator RHIANNON: It reads:

Ministers are required to undertake that, for an eighteen month period after ceasing to be a Minister, they will not lobby, advocate or have business meetings with members of the government, parliament, public service or defence force on any matters on which they have had official dealings as Minister in their last eighteen months in office.

That describes Mr Macfarlane and his actions with you.

CHAIR: Senator Rhiannon, order! If this is a question about the Ministerial Code of Conduct, I suggest that this is not the estimates committees to deal with it. But, in any case, your time is five minutes over the allotted 15 minutes.

Senator Brandis: May I answer the question, please?

Senator RHIANNON: Yes.

Senator Brandis: There are two reasons why there has been no breach, in my opinion, by Mr Macfarlane: first of all, because he was not a lobbyist, for the reasons I explained yesterday: because he was not a paid third-party advocate; he was representing his own industry association, which represents the stakeholders. That is not what 'lobbying' means. Secondly, there is nothing that Mr Macfarlane said to me that relied upon anything that had to do with his responsibilities as a minister. The Native Title Act is an act administered by the Attorney-General's Department. The occasion for the conversation arose from a legal issue created by a decision of the Full Court of the Federal Court. It is perfectly clear to me that, when Mr Macfarlane was a minister in government, this was not an issue that was within his portfolio.

CHAIR: Thank you very much, Senator Brandis. The hearing is now terminated.

Senator Pratt interjecting

CHAIR: No, that is a private matter for the committee which will be dealt with at the next committee private meeting. Thank you to Hansard for their assistance today. Thank you to the department, all the witnesses and the minister. Thank you to the secretariat staff, and thank you to my colleagues. We will see you at the next estimates.

Committee adjourned at 23 : 05