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Legal and Constitutional Affairs Legislation Committee
14/02/2012
Estimates
ATTORNEY-GENERAL PORTFOLIO
Australian Government Solicitor

Australian Government Solicitor

[11:34]

CHAIR: Good morning, Mr Govey. Do you have an opening statement?

Mr Govey : I do, Madam Chair. It relates to correspondence with Senator Brandis, but I will proceed on the assumption that that is taking care of.

Senator ABETZ: I inform Mr Govey that I am fully aware of that correspondence and I will be handling this bracket of questioning.

CHAIR: All right. Proceed, Mr Govey.

Mr Govey : Senator Brandis was kind enough to give me advance notice, on Friday last week, that he wished to ask AGS some questions about the Fair Work Australia investigations into the Health Services Union. He also asked that AGS lawyers involved in assisting FWA in this matter attend the hearing today. I responded to Senator Brandis yesterday, after consultation with Fair Work Australia and the Attorney-General's Department, to explain AGS's position in relation to this request. On instructions from FWA and consistent with the government policy about what legal advice can be disclosed and who is responsible for this disclosure, there is very little that AGS is able to say about our role in this matter.

The starting position is that we—that is, AGS—cannot say anything at all about our role. This is a matter for FWA. This position is consistent with the longstanding position, as set out by former Attorney-General Daryl Williams AM QC in letters to the then President of the Senate, on 12 May 1999 and again on 17 November 2000. Mr Williams made five main points in this correspondence in relation to the role of AGS in providing advice and assistance to parliamentary committees.

First, the principal function of AGS is to provide legal services to the Commonwealth, its ministers and agencies. Second, AGS is in a solicitor-client relationship with its government clients and has in relation to those clients and the courts essentially the same legal obligations as are owed by private sector lawyers to their clients and the courts. Third, AGS's legal obligations, such as the maintenance of legal professional privilege and avoidance of conflicts of interest, make it appropriate for questions about clients matters to be the responsibility of the relevant client agencies rather than AGS. Fourth, if AGS were required to provide such comments or advice, AGS's solicitor-client relationship and effectiveness as a source of legal advice for the Commonwealth, its ministers and agencies may be compromised. Accordingly—this is the final point in the correspondence—Mr Williams said that AGS's client matters should be addressed directly to the client agency.

This position is supported by more recent correspondence. In May 2008, the Department of the Prime Minister and Cabinet wrote to the Attorney-General's Department setting out the government's position in relation to disclosure of advice. That letter was tabled before this committee on 27 May 2008. In July 2008, the Attorney-General's Department sought confirmation from PM&C that questions about advice should be answered by the agency which had requested the advice. In September 2008, PM&C confirmed that this was the position. One of the key points that was made by then Attorney-General Williams and his correspondence was: 'I am concerned that AGS would be placed in an untenable position if it were required to provide comments or advice to a parliamentary committee on issues such as'—and he listed three points, but the relevant one is the last one, which is 'AGS's conduct or AGS's client's conduct in handling particular client matters'.

FWA has authorised me to explain in general terms our role, but, beyond that, other questions about the legal services AGS has provided should be directed to FWA. I am not suggesting that FWA will necessarily be in a position to answer them, but that is a matter within their ambit of responsibility. FWA's investigations involve serious matters, and comments by AGS about the investigations would have the potential to compromise FWA's role. Because of the sensitivities involved, I want to set out in this opening statement what I can say about our role but also again emphasise that neither I nor anyone else at AGS is in a position to go beyond this explanation.

AGS was first engaged in relation to the HSU matters in April 2009. At that point the engagement was to assist the then Industrial Relations Registrar in two inquiries he was conducting. Since then, the general manager of Fair Work Australia has undertaken two investigations pursuant to section 331 of the Fair Work (Registered Organisations) Act 2009 into the financial affairs of, firstly, the Victorian No. 1 branch and, secondly, the national office of the Health Services Union, HSU. The first of these, the national office investigation, was commenced by FWA on 27 March 2010. This followed on from an inquiry into the financial affairs of the national office of the HSU commenced by the then Industrial Registrar on 6 April 2009, which was continued by the General Manager of FWA under section 330 of the Fair Work (Registered Organisations) Act after 1 July 2009. The 1 July date is important because it followed the enactment of the act I just mentioned with effect from that date and the transfer of the relevant powers of inquiry and investigation to the General Manager of Fair Work Australia under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The second investigation, the Victoria No. 1 branch, was commenced by FWA on 27 April 2010. This one followed on from an inquiry into the financial affairs of the Victoria No.1 branch of HSU, which had been commenced by the then Industrial Registrar on 29 January 2009, which, in turn, was continued by the General Manager of FWA under section 330 of the act, again after 1 July 2009.

AGS was retained in April 2009 to provide legal advice and related services to the Industrial Registrar and then by FWA, and it has continued to do so in both investigations. AGS's work has been led throughout this period by a senior executive lawyer from our dispute resolution group, Mr Craig Rawson. Mr Rawson is from our Melbourne office. He has been assisted at various times by number of other AGS lawyers. I could provide a full list if the committee wishes but, given that many are junior lawyers, my preference would be not to do so.

The general nature of the work performed has included oral and written advice relevant to the investigation. It has also included being present for certain interviews conducted by FWA. Mr Rawson and other colleagues at AGS continue to be closely involved in the matter. In the light of some media reports, I can also make two further comments: firstly, at no time has it been suggested to AGS that it has been retained to shield the inquiry or the investigations from political interference; secondly, AGS is not aware of any political interference into the inquiries undertaken by the Industrial Registrar or the inquiries and investigations undertaken by FWA.

In accordance with the usual practice and the principles I have outlined, FWA has asked that AGS not provide any further information about any advice or other services that we have provided, so I am not in a position to take questions on our role any further. I am, however, happy to refer any questions to FWA and liaise with them in providing a response. I understand that FWA is appearing before their estimates committee tomorrow.

Senator ABETZ: Thank you for that opening statement. I simply ask: why wasn't all this information contained in the letter to Senator Brandis? It would have made things so much easier for us for today's hearing.

Mr Govey : I thought I had set out the brief general principles in the letter. I have to say I was still working on the actual statement and liaising with Mr Rawson pretty much until the time I left the department to come over here.

Senator ABETZ: That is fair enough. I do not put the blame on Senator Brandis because he and I discussed the matter, but the coalition did give relatively short notice, so I accept that explanation. Given what you say, I will ask questions and we will see where we get to. First of all, can I confirm that in your understanding of the Fair Work Act there is a material difference between an inquiry and an investigation.

Mr Govey : That is my understanding.

Senator ABETZ: What is the material difference? When does an inquiry become an investigation under the Fair Work Act?

Mr Govey : I am not in a position to take that point any further, other than, of course, to say that it is a decision for the responsible statutory officer as to whether or not the conditions necessary to move from an inquiry to an investigation are satisfied. But I am not personally aware of the details of the criteria that would apply.

Senator ABETZ: Can you confirm that in fact you were instructed in relation to two separate and distinct inquiries?

Mr Govey : That is right. Initially both the national office inquiry and the Victoria No. 1 branch inquiry were commenced by the industrial relations registrar and then, in both cases, continued from 1 July by FWA. Then in both cases they were converted into an investigation, the national office inquiry being converted on 27 March 2010 and the Victoria No. 1 branch inquiry being converted on 29 April 2010.

Senator ABETZ: I had 27 April. Is 29 April correct?

Mr Govey : Let me double-check. I am sorry, my notes are internally inconsistent. One says 27 and one says 29. I will try to resolve that for you.

Senator ABETZ: At this stage I would not assume that anything material revolves around that date. The inquiry in relation to the HSU Victorian branch started on 29 January 2009.

Mr Govey : That is correct.

Senator ABETZ: And it was about three months later that the national office inquiry started, on 6 April 2009.

Mr Govey : That is right.

Senator ABETZ: Thank you for that. You were retained, you were saying, in April 2009.

Mr Govey : Yes.

Senator ABETZ: Courtesy of freedom of information, Fair Work Australia, albeit very reluctantly, has provided us with certain information. Are you aware of that?

Mr Govey : I am aware of it. I have not looked at it in detail, but I do have copies here.

Senator ABETZ: In relation to the Australian Government Solicitor, when I look at the billings it reminds me why it was a financially unwise thing of me to give up the law and enter politics, but that is a comment for another day. Is it fair to say that you were first instructed, on the basis of the information I have received, on 24 April 2009?

Mr Govey : I might need to check that. I think the actual engagement was a little earlier than that, but the substantive work may well have been done on that date.

Senator ABETZ: All right. What I am seeking is the attendance with Mr Craig Rawson to ascertain background in relation to matter at that stage. If you cannot answer, so be it, but was it matter or matters? What I am trying find out is whether you were being consulted on a regular basis in relation to both inquiries and both investigations at the same time or you were being separately consulted in relation to the Victorian office, if I can describe it as such, and the national office.

Mr Govey : We were engaged in relation to both inquiries and subsequently both investigations. I do not think I can take it beyond that. We were working on them during the whole of this period. I can say that.

Senator ABETZ: We have been provided by Fair Work Australia your billings in re HSU-advice. We are not told that it is HSU-Victoria or HSU-national. Is it therefore open to me to conclude that these billings in fact relate to both matters concurrently?

Mr Govey : Yes, because we were doing work concurrently in relation to both matters.

Senator ABETZ: It stands to reason and is good practice from both Fair Work Australia and the Australian Government Solicitor, if you have two files going at the same time, to consult about both matters at the same time. This is what these billings reflect.

Mr Govey : I do not think I can take what I said any further. We were engaged in relation to both matters, and my understanding is that the bills relate to both matters.

Senator ABETZ: All right. Thank you for that. Have you had any occasion to reconsider the descriptions that you provided in the billing to Fair Work Australia? It is not a trick question; allow me to take you straight to what I am trying to get at. For example, on 6 December 2010, we are told about an item called 'reviewing draft letter 2—deleted—setting out proposed findings'. Tell me if I can ask this. It is Fair Work Australia's role, not the Australian Government Solicitor's role, to make the proposed findings given the terms of the Fair Work Act. Is that correct?

Mr Govey : That is my understanding.

Senator ABETZ: So the role of Fair Work Australia was more in vetting, checking or advising in relation to Fair Work Australia's own determinations as to proposed findings.

Mr Govey : I do not want to comment any further about what we were doing. I appreciate that there are things on the record in terms of the invoices, but they need to speak for themselves.

Senator ABETZ: As you rightly pointed out—I did not need reminding, but you are quite correct—Fair Work Australia will be before the estimates process tomorrow, and some of these matters of course will be canvassed with them again. Are you able to advise us as to the nature of the documents that were served by the Australian Government Solicitor in April 2010? We have had discovered to us an invoice from Wise McGrath. It was a tax invoice for attempted service fee, service fee, loading for personal service et cetera. So it all relates to personal service of a particular document. I do not want to know the person who was served, but are you at liberty to tell us the nature of the document that was so served?

Mr Govey : No.

Senator ABETZ: Was any advice sought in relation to the compelling of witnesses?

Mr Govey : I am not in a position to take that any further either.

Senator ABETZ: All right. Was any advice proffered to Mr Lee not to return phone calls from the fraud squad in New South Wales? Mr Lee is the former manager of Fair Work Australia.

Mr Govey : I am not in a position to comment on that either.

Senator ABETZ: All right. Therefore I dare say you are not in a position to comment on the letter Mr Lee wrote to the Commander of the Fraud and Cybercrime Squad in New South Wales.

Mr Govey : That is correct.

Senator ABETZ: There is an interesting suggestion here that Mr Lee says nothing in the act confers any authority on him to do certain things. For the record, I am referring to Mr Lee's letter of 26 August 2011. It is on the second page about one-third down. 'Nothing in sections'—he quotes the Registered Organisations Act—'confers any authority on me to inquire or investigate about contravention of New South Wales laws et cetera.' The commander's letter was only to discuss certain matters, so how Mr Lee made the quantum jump from a request to discuss certain matters to whether or not his role is to investigate another matter is something with which you are unable to assist us.

Mr Govey : That is correct.

Senator ABETZ: All right. Are you able to tell us whether any advice was offered to Mr Lee about his capacity to cooperate with the New South Wales fraud squad?

Mr Govey : No, I am not.

Senator ABETZ: And that is because of solicitor-client confidentiality. It is not because the Australian Government Solicitor does not know.

Mr Govey : It is for the reasons that I outlined in my opening statement.

Senator ABETZ: Yes. What I do not want to have happen is tomorrow to be told that I should have asked these questions of the Australian Government Solicitor, and that is why I am trying to nail some of these down. I understand the position you are in.

The discovered documents tell us that there were a number of attendances by Mr Lee on the Australian Government Solicitor or by the Australian Government Solicitor on Mr Lee. Are you at liberty to tell us how many attendances he may have had with the Australian Government Solicitor?

Mr Govey : No.

Senator ABETZ: Can I ask whether all of his attendances would as of necessity be recorded in the billings?

Mr Govey : I cannot be sure about that.

Senator ABETZ: All right. Do you have any understanding or appreciation—I know it is not necessarily your sphere—that the Fair Work Act does provide for the manager to delegate his or her powers to an officer? I understand that the Australian Government Solicitor was aware of that and that Mr Terry Nassios was the person to whom Mr Lee delegated his powers. Is that to your understanding?

Mr Govey : I do not think I can help you with that either. It may well be correct, but I am reluctant to—

Senator ABETZ: We have been told as much by Mr Lee at Senate estimates.

Mr Govey : And I think that is the source of my information about it as well.

Senator ABETZ: Right. It just begs the question: if he had delegated his powers, why was Mr Lee still, at least on some occasions, sitting in on these attendances. But by the sounds of it we will never know.

Are you able to tell us whether or not advice was south on a range of issues such as whether or not an immunity should be granted to anybody?

Mr Govey : No, Senator, that would also be covered by the statements I made before.

Senator ABETZ: So, that would also apply in relation to the extension of time given to certain people to respond?

Mr Govey : That is correct, Senator.

Senator ABETZ: Can you confirm to us that advice was sought in relation to potential criminal breaches?

Mr Govey : No, Senator, I am not in a position to take the description of our work any further than is in the invoices and what I said in my opening statement.

Senator ABETZ: Can we have confirmed that on 10 October 2011 a lawyer, whose name I will not put into the record, but one of your officers: 'Researching and preparing note on possible offence under Criminal Code and Workplace Relations Act relating to,' the rest is blotted out?

Mr Govey : If you are reading from our invoices then I can confirm that, because I have no reason to believe that our invoices are anything other than a correct statement.

Senator ABETZ: Thank you, I just wanted to confirm that. Did you provide any advice to Fair Work Australia in the area of their responsibilities under the Freedom of Information Act?

Mr Govey : We have been assisting FWA in relation to their response to the FOI requests.

Senator ABETZ: You can tell that she has been assisting Fair Work Australia in relation to matters of FOI. Why can't you tell us whether or not you assisted Fair Work Australia in relation to the issue of immunities, for example?

Mr Govey : This only happened this morning. I realised that we were acting for FWA in relation to the FOI request, so I sought approval from FWA to be in a position to disclose that fact; nothing more than the fact that we are retained to assist them in relation to their response to the request.

Senator ABETZ: Fair Work Australia has given you permission to tell this committee that you have been engaged to assist in FOI matters. It therefore stands to reason, does it not, that Fair Work Australia has not given you permission to assist this committee in relation to whether or not you have provided advice on matters of immunity?

Mr Govey : If you are talking about immunity in the context of the investigations or the inquiries, then I am not saying one way or another about that because, all I have said of the role that we play in relation to those inquiries and investigations is that we have been retained. I set out that we have provided written and oral advice and some assistance in relation to representations, but that is the scope of the authority that I have been given to disclose our role.

Senator BRANDIS: On that point, Mr Govey, we would give you notice that the opposition will be pursuing questions in the areas that Senator Abetz has been pursuing. You say that you responded to my letter after consultation with FWA and that on instructions from FWA there is very little that the AGS is able to say about our role in this matter. May we take it that your assertion of client privilege and your inability to respond to any significant extent at all to Senator Abetz's questions is an instruction from Fair Work Australia. In other words, when you had the consultation to which you referred in your opening statement following receipt of my letter on Friday, it would have been open to Fair Work Australia to give you authority to waive that objection, and they have obviously declined to do so? Is that right?

Mr Govey : It would have been open to them to tell us that we could disclose further information. I reiterate that to do so would be inconsistent with normal practice going back as far as former Attorney-General Williams.

Senator BRANDIS: That might be so, Mr Govey.

Senator ABETZ: 'Consistent with normal practice'. Then Fair Work Australia specifically instructed you that you could talk about the FOI request?

Mr Govey : I imagine that they shared my view—that I was wanting to be as helpful as I could in the general sense of explaining, in general terms, our role and in a way that did not get into the specifics of the work that we were doing for them.

Senator BRANDIS: Let me finish that point, though. The opposition deliberately and very advertently afforded Fair Work Australia the opportunity of waiving its objection by medium of my letter to you on Friday, in relation to which you then sought instructions. So we must conclude, must we not, that the fact that you were asserting this privilege on behalf of your client, Fair Work Australia, means that Fair Work Australia chose not to waive the privilege and chose not to, as it could have done, put you in a position to respond more fully to Senator Abetz's questions.

Mr Govey : That is certainly true, Senator, but both of us were mindful of the fact that it is their role to answer those questions, not ours, and that they were appearing before Senate estimates tomorrow.

Senator ABETZ: We will see how forthcoming they are in relation to these matters. I hope they are a bit more forthcoming than they have been on matters FOI, where we have had to appeal to the Information Commissioner on two separate occasions and we are getting documents in dribs and drabs. We just got the last lot this morning. So one wonders how many other documents will materialise before tomorrow's hearings. Going back to the Fair Work Act, Mr Govey, to your knowledge is there anything in the Fair Work Act that would prevent the manager of Fair Work Australia from cooperating with a state authority that might be investigating a matter concurrently with Fair Work Australia?

Mr Govey : I do not know the answer to that question.

Senator ABETZ: All right. When were you first engaged to advise in relation to matters FOI?

Mr Govey : I do not have the answer to that question. I would have to take that one on notice.

Senator ABETZ: If you could, please, because my office's initial request for FOI was rejected absolutely. Not a single document was revealed—a list of documents that would not be revealed was not even provided. Simply, they would not cooperate. Mr Govey, in your experience, have you ever advised another department or agency to behave in such a blocking manner in relation to a FOI request, other than possibly the Office of National Assessments, ASIO or the Defence Materiel Organisation?

Mr Govey : Senator, I hope you will understand that I cannot really agree with the premise underlining your question. If it were put in a different way, I would have to say that I am not really in a position to talk about the generality of advice that our FOI lawyers have provided across the board.

Senator ABETZ: Perhaps you could take that on notice. We do not have to know with which department but how often in the last 12 months they have advised a department or an agency to simply not provide anything—and I mean that: anything. Not even a list of documents that they were not prepared to provide; simply a letter responding, in effect saying, 'We aren't going to provide you with anything.' It was only as result of the Information Commissioner's assistance—I will put it politely—that Fair Work Australia then provided us with some documents. A few days later, there were more documents and today there are even more documents. It seems passing strange that that sort of advice would have been given, but we will ask Fair Work Australia tomorrow about the strength of the legal advice and whether they are willing to share that with us. The blanket refusal that we got from Fair Work Australia seems to me quite strange. This has been quite a good little earner for the Australian Government Solicitor. Good luck to the Australian Government Solicitor on that—and I see Mr Wilkins smiling as it undoubtedly helps the bottom line. This is the sad fact that ought to wipe the smile off everybody's face: how much has it cost the Australian taxpayer thus far just in legal bills from the Australian Government Solicitor? Do you have that total?

Mr Govey : I do have a total. It includes our fees and disbursements. It does not include GST which I understand would not ultimately be payable by Fair Work Australia. The amount is $912,562.

Senator ABETZ: Up until what date is that?

Mr Govey : It is at least sometime in January, but I think it might be right now.

Senator ABETZ: Chances are last night's consultations would not be part of it.

Mr Govey : These are amounts that we have rendered invoices for.

Senator ABETZ: Without being too extravagant, one could basically round that up to a $1-million legal bill that will be incurred by the taxpayer if not more, because one assumes you will continue to be briefed in relation to this matter.

Mr Govey : I would not want to go beyond the $912,000 that I have just mentioned, except—

Senator ABETZ: There is no anticipation that the Australian Government Solicitor is going to be sacked from this job.

Mr Govey : to acknowledge that we are continuing to act in this matter.

Senator ABETZ: Unless I get a second wind after asking other questions, that should dispense with the HSU matters. This question relates to the government's commitment, now broken, to Mr Wilkie in relation to poker machine reform. Was the Australian Government Solicitor asked by the government for advice in relation to this issue?

Mr Govey : I think I can say that we have been involved in providing advice on the government's gambling reform proposals, but that is the limit of what I can say.

Senator ABETZ: When were you first asked?

Mr Govey : I do not have that date.

Senator ABETZ: Can you take that on notice?

Mr Govey : Certainly.

Senator ABETZ: Do you have it now? I think Mr Riggs may have provided you with something.

Mr Govey : It does not answer the question of when we were first asked.

Senator ABETZ: What does it tell us?

Mr Govey : It tells us that on 27 January last year, AGS provided legal advice to the Department of Families, Housing, Community Services and Indigenous Affairs about the Commonwealth's power to legislate to address issues associated with problem gambling.

Senator ABETZ: Was that in relation to the constitutional issues? I think that is in the public domain.

Mr Govey : What I can say is that the government had agreed to commission this advice as part of its agreement with Mr Wilkie. The government released the advice on 1 February last year.

Senator ABETZ: So we are talking about the same advice that I thought was public.

Mr Govey : Yes, and it does deal with the Commonwealth's powers to legislate in this area.

Senator ABETZ: Was that the only advice? I do not need to know the material nature of the other advice sought, but was that the only advice that has been sought from the Australian Government Solicitor in relation to gambling changes?

Mr Govey : Beyond saying that AGS has continued to provide advice and assistance relating to the problem gambling reforms and in the development of legislation to implement those reforms, I am not in a position to take that any further.

Senator ABETZ: Are you able to tell us when the last lot of advice was proffered to either FaHCSIA or somebody within government?

Mr Govey : No. That would properly be a question for FaHCSIA.

Senator ABETZ: What about the Department of the Prime Minister and Cabinet?

Mr Govey : I am not in a position to take that any further. I am not sure whether you are asking whether we have provided advice to—

Senator ABETZ: Sorry, if that was not clear. Yes, that is what I was asking.

Mr Govey : I am not in a position to answer that.

Senator ABETZ: Who instructed you in relation to the advice that was made public on 1 February last year. Was that FaHCSIA or the Department of the Prime Minister and Cabinet?

Mr Govey : FaHCSIA.

Senator ABETZ: Are you able to tell us, without going into the actual advice, whether any advice was proffered to the Prime Minister's office or to the Department of the Prime Minister and Cabinet in relation to this issue?

Mr Govey : No, I am not.

Senator ABETZ: Why not?

Mr Govey : For two reasons. Firstly, I do not know and, secondly, because that would be a matter for either PM&C or FaHCSIA.

Senator ABETZ: Were you at any stage asked to advise separately any of the Independent members of the House of Representatives in relation to this matter of gambling reform?

Mr Govey : I am not in a position to answer that question for the reasons that applied to my previous—

Senator ABETZ: Thank you.

Senator BRANDIS: I have a couple of questions arising from a report by Chris Merritt, in the Australian newspaper last Friday, about a discovery application in the litigation between a large number of federal magistrates and the Commonwealth. The AGS acts for the Commonwealth in that litigation, does it not?

Mr Govey : It does.

Senator BRANDIS: Mr Merritt reports that an application was filed last Friday in the Federal Court on behalf of the Commonwealth, asking for the production of information in relation to the personal financial circumstances of those magistrates who are applicants in the proceedings. On what issue in that litigation did that discovery application directly bear?

Mr Govey : I am looking to my colleagues in the department to see whether they want to answer that question, given that they are the instructors and, consistent with everything else that has been said this morning, those questions would be properly directed to them.

Senator BRANDIS: I am not asking you for the advice that you gave to your client; I am simply asking you to identify to the committee the legal issue upon which the discovery application bears. The pleadings are a public document and the discovery application is a public document. But, in any event, I do not mind if the answer comes from the department. I would just like to know.

Mr Wilkins : Since the department of finance is instructing on this, probably I should answer that question. The answer is pretty much that this has got to do with legal tactics and we are not about to disclose in the Senate what our legal tactics might be.

Senator BRANDIS: I am not going to ask you—

Mr Wilkins : You are asking why we did that and what the strategy and tactics might be.

Senator BRANDIS: No, I did not. That is not at all what I asked. I said, 'Upon what issue in the litigation does the discovery application bear?'

Mr Wilkins : That would be disclosing what the train of logic is, the tactics and strategy involved by counsel in this case. We do not want to get into a detailed discussion which, essentially, would disclose what the Commonwealth's position is in relation to it.

Senator BRANDIS: That is not right either, Mr Wilkins, with all due respect. The disclosure obligations are defined by the Federal Court rules as interpreted by judicial decisions and, as we both know, documents are disclosable in proceedings if they bear upon an issue in the litigation. The issues in the litigation are themselves defined by public documents—that is, the pleadings. So I am not asking you about your tactics. I am asking you, carefully, on what issue in the litigation does that application bear?

Mr Wilkins : If it is blatantly public then it is not necessary for me to opine on that. The point—

Senator BRANDIS: The reason I am seeking your opinion, Mr Wilkins, is because I do not think it bears on any issue in the litigation, but perhaps I am missing something so I am inviting you to tell me.

Mr Wilkins : Let me just say that the counsel for the Commonwealth thinks that it bears on the litigation. And I do not think I should be canvassing what the tactics and the strategy of counsel are in the case.

Senator BRANDIS: I do not think, with respect, Mr Wilkins, it is good enough to hide behind the fact that counsel may have an opinion on the matter and say, 'Well, this is really in the nature of legal advice.' I am asking you for your view as the client, who is a lawyer: on what issue in the litigation does the request for the discovery of the federal magistrates' personal financial circumstances bear?

Mr Wilkins : My response again—this is based on legal advice from counsel, and the AGS, for that matter—is I am not prepared to canvass that in a situation where we would prejudice the position of the Commonwealth in a case that is currently before the courts.

Senator BRANDIS: That is why I have asked you the question in a deliberately narrow way. I am not asking you what your tactics or your strategy are.

Mr Wilkins : By implication, I am afraid that is what it goes to.

Senator BRANDIS: Would you agree with me that it is important for the Commonwealth always to act as a model litigant and to observe the model litigant rules?

Mr Wilkins : Yes, I would.

Senator BRANDIS: You are familiar with the rules?

Mr Wilkins : I am, more or less.

Senator BRANDIS: You are familiar with rule 2(d), that the Commonwealth as a litigant must endeavour 'to avoid, prevent and limit the scope of legal proceedings wherever possible'. Given that the issue raised in the federal magistrates' litigation is essentially an issue of constitutional principle, can I suggest to you that for the Commonwealth to make a discovery application in which the applicant magistrates are required to reveal in discovery all of their personal financial circumstances is not only not in conformity with the obligation to limit the scope of the dispute under rule 2(d) but is arguably oppressive.

Mr Wilkins : If I can respond to that, it is not necessarily the case that this is a constitutional matter and it is a matter which the High Court has looked at and has sent back to the Federal Court so, presumably, that matters of fact can be flushed out and the matter decided in the Federal Court. It is not—

Senator BRANDIS: I am sure matters of fact could be flushed out.

Mr Wilkins : Can I finish, Senator? It is not necessarily a matter of constitutional law. That may be the case; it may not be the case. It certainly is open to interpretation, and that is one of the reasons why I do not want to go into questions of fact here that are being contested in the Federal Court because that would go to tactics and interpretation of what the dispute is necessarily about.

Senator BRANDIS: That is why I did not ask you about questions of fact. I asked you specifically and carefully about an issue of law—that is, what is the legal issue in the case upon which the discovery application bears? You felt free to say that the case may involve constitutional issues.

Mr Wilkins : It may.

Senator BRANDIS: If you feel free to comment on what are arguably some of the issues in the case, why, without going into any issue of fact at all, do you feel unable to identify the legal issue, as defined by public documents, on which this discovery application bears?

Mr Wilkins : There are two things. The only reason that I raised the question of possible constitutionality is that you asserted that it was a constitutional matter, so I merely cast doubt on whether that was the case. The second point is that this application will be heard in court, I gather, next Thursday, at which point you are most welcome to see what counsel argues in relation to this matter. I am not sure why I would be pre-empting consideration by the court in the application that is being made where the court can determine that.

Senator BRANDIS: I am interested in another issue. I am not interested in the determination of the issue because, as you rightly say, that is not for a Senate estimates committee; that is for the court. I am interested in knowing what is the Commonwealth's motive here in bringing what, on the face of it, seems to be an extravagant and arguably oppressive application where—so far as I can see from my understanding of the issues in the case—the discovery application has little or no bearing on any issue defined by the pleadings.

Mr Wilkins : I can tell you what the Commonwealth's motive is in general terms: it is to do the best we possibly can for the people of Australia. Therefore, it is based on opinions by counsel where judgment has been that they are the best counsel to represent the best legal advice we have from the AGS and from counsel on the tactics to be deployed. The motivation is to do the best for the taxpayers of Australia.

Senator BRANDIS: If I may say so, Mr Wilkins, I think you have misdirected yourself if you think that is your obligation, because the whole point of the model litigant rules is to impose upon the Commonwealth, as a litigant, certain restraints or constraints that an ordinary litigant does not face.

Mr Wilkins : Certainly. It needs to be read in terms of the model litigant rules. But you asked me what the motivation was. I would have thought the motivation of any good public servant was basically to do the best they can for the taxpayers of Australia, and that includes expectations by the taxpayers, presumably, that we would act as model litigants.

Senator BRANDIS: Your obligation in these proceedings is to defend the proceedings in accordance with the model litigant rules. I put it to you that, in bringing such an extraordinarily wide and arguably oppressive discovery application, you are in fact in breach of rule 2(d).

Mr Govey : There are perhaps two things I can say. One is a blanket statement that we have looked very carefully at what has happened and we are very comfortable that there is no breach of the model litigant principles. In fact, I have to say I think that Mr Merritt's suggestions to the contrary were somewhat spurious. I would also note that, in relation to the issue about the sensitivity of the personal documents that are involved, the Commonwealth has specifically offered on at least two occasions to deal with any personal documents sensitively. I am quoting from the most recent correspondence.

Senator BRANDIS: That does not mean anything, because any client for whom discovery is made is under an implied obligation of confidentiality, so that means nothing.

Mr Govey : Can I indicate what was said in the correspondence, which I would like to think would allay any concerns that this material will be used in a way which discloses information unreasonably. What was said in that most recent correspondence is that it would be handled in a way to ensure that any private information can be sensitively treated so as to secure the privacy of the individual concerned.

Senator BRANDIS: That means absolutely nothing because, as you must know, any litigant is already under a pre-existing obligation to deal with documents discovered to it under strict conditions of confidentiality and for the purposes of the litigation and for no other purpose. So , by uttering these fine words about sensitivity, you are merely self-corroborating an obligation you know you already have. What is the point of saying that?

Mr Govey : The point is simply to rebut any suggestion that there is going to be an unreasonable disclosure of personal information about the individuals concerned.

Senator BRANDIS: There cannot be a disclosure. If there were a disclosure of personal information for a purpose collateral to the litigation, that would be an abuse of the process of the court and plainly in breach of the model litigant rule, so why do you feel the need? What is your sensitivity on this that you feel you have to reaffirm your willingness to adhere to a fundamental obligation that lies upon you in any event?

Mr Govey : It was simply to respond to criticism that the Commonwealth's application for discovery in this matter did not respect the privacy of the applicant federal magistrates.

Senator BRANDIS: I must say, Mr Govey, that the fact that you feel it necessary to make that gratuitous offer in a letter is itself revealing.

Senator HUMPHRIES: What is the extent of the effect of the efficiency dividend increase from 1½ to four per cent on your budget bottom line?

Mr Govey : AGS is not budget funded. We receive no budget allocations and so the efficiency dividend does not apply to us directly.

Senator HUMPHRIES: You are activity funded.

Mr Govey : That is right.

Senator HUMPHRIES: Thank you.

Proceedings suspended from 12:31 to 13:37