Senator WONG (South Australia—Leader of the Opposition in the Senate) (12:24): I move: That the Senate take note of the statement. That was a very lengthy and detailed statement. One does wonder why it took a front page of The West Australian before the Attorney-General and the government fronted up on this. Why did it take the front page of the papers before the Attorney-General came into this chamber and told the truth about what happened in relation to the Bell litigation? Let us recall that this is not the first time that this matter has been raised in this parliament. There were questions in question time and questions before the legal and constitutional affairs committee about these matters and yet it took a weekend, the front page of the papers and, frankly, a lot of media concern about what has occurred to have the Attorney-General come in here. I also make the point that the Attorney-General declined to comment over the weekend in response to the allegations, telling everybody, 'We don't comment on matters to which the Commonwealth is a party.' Well, he has certainly commented at length today. I wish a few more of his colleagues were in here to listen to his statement today, commenting at length on the litigation. The one thing you can say about that statement is it throws Joe Hockey under a bus. How convenient that you go after the bloke who cannot defend himself. How convenient that somehow it was all the bloke who has left. It was all him. All of this constitutional advice and this kerfuffle that Senator Brandis was involved in—all the discussions with lawyers and the Attorney-General from Western Australia—was actually all Joe's fault. It is very convenient. I suppose the first question is: are you going to recall him? Are you going to recall him from our most important ally? He is the ambassador to the United States, our most important ally. That is our most important security and defence relationship. If you do not have confidence in him because he did a dirty deal, are you going to recall him? We wait to hear. How convenient. Senator Cormann interjecting— Senator WONG: I will take that interjection from Senator Cormann. He said that we have not got much to say. Do not worry, we will be going through this statement very carefully and comparing it with what has been said in the Western Australian parliament because, as always with Senator Brandis, you have to look at what he does not say. You have to look at what he does not say. You have to look at all the careful things he says and does not say. There were a couple of things he did not tell us about. One of them was why he put in place the direction to the Solicitor-General. If you look at the sequence of events—and I am sure my colleague Senator Watt will go to this—it is very interesting that it appears we have this dispute between ministers. There is discussion about how you put in place this political fix for a few hundred million dollars. What are a few hundred million dollars between friends anyway? It is very interesting that out of that appears the direction that requires Mr Justin Gleeson to get this bloke's permission before he acts for people, before he provides advice. Where was that in the statement? It was all of a sudden. Did it just come out of the ether? The second point I want to make is in relation to the GST. We do not know yet what relevance the GST debate had to this political fix. Senator Brandis: None. Senator WONG: I will take the interjection from Senator Brandis. He said— Senator Brandis: There is no evidence. Senator WONG: Senator Brandis says there is no evidence of that. Don't you love it? He is always a lawyer. He said there is no evidence, but he could answer the allegation, couldn't he? Others are very clear that the GST payments to Western Australia were a political issue for the government. We know that. We know that from questions in here— Senator Cormann interjecting— Senator WONG: I will take the interjection from Senator Cormann. He said, 'We dealt with it.' How did you deal with it? Was this part of the deal? Government senators interjecting— Senator WONG: Oh, the infrastructure. Let us remember what Mr Nahan—I am not sure how one says it— Senator Brandis: Dr Nahan. Senator WONG: Thank you for correcting me again, Senator Brandis. I am always pleased to be corrected by you. It is Dr Nahan I am told. Dr Nahan said: The understanding was that the commonwealth would not use the powers under the Corporations Act with the regulations null and void and it would not take an action to the High Court on the ATO and tax issues. In the end the ATO and the commonwealth Solicitor-General did join the action and they were successful in throwing the issue out. I think the question here, which no doubt will be considered in detail in the coming weeks and days, is about the difference between what we have just had in the statement and what we know from the parliament of Western Australia, because it is quite clear from what the Western Australians have said that they had a very different understanding of this deal. I think what Senator Brandis is asking the Senate to accept is that somehow they were stupid. They got the wrong end of the stick. They were incompetent. It was never actually something that they were going to agree with. Let us understand: we have the Treasurer and the Attorney-General of the state proceeding on the basis that they had an agreement. I want to make this point also. The Attorney-General says that he was happy for the Commonwealth to intervene—I am sorry; I am paraphrasing—'It was fine; we didn't have to intervene initially, because the ATO was there, and then I decided, after Mr Gleeson set me straight, that we did actually have to intervene.' I make the point that we are talking about the Constitution. We are talking about a law that sought to override a federal law, and we know that because that is what the High Court decided. I think one of the principles that we ought recall here is this: you do not get to ignore the Constitution just because there is a complex problem. As the first law officer of the country, you do not get to ignore the Constitution just because there is a political problem with one litigation that is before the High Court. The Attorney-General, in his opening to his statement, spent a lot of time explaining to us why the Bell litigation was a problem. Just because it was a political problem, it does not mean that the Commonwealth gets to cut a deal on legislation that is clearly unconstitutional—that is not my opinion; that is the judgement of the High Court. Can I also make this point in relation to that statement, and, as I said, I think all of us will certainly be going through this in great detail, because it is the first time that Senator Brandis has broken his silence on this issue— Senator Brandis: It's the first time I've been asked about it. Senator WONG: He says it is the first time he has been asked about it. That is not true. We actually asked you in question time about it, and, as usual, you avoided the question. I will provide you with the transcript of that— Senator Watt interjecting— Senator WONG: I suspect Senator Watt probably asked Mr Gleeson about it in the Legal and Constitutional Affairs References Committee. You were also asked about it, Senator Brandis, by the media on Friday, when this matter broke, and your spokesperson said the Commonwealth does not comment on litigation matters to which it is a party—a blatantly false statement. So do not come in here and tell us, 'I've never been asked.' You are only doing this because you knew you had to, probably because Mr Turnbull finally asked you to. That is the only reason you are doing this. You are not doing this because you thought it was the right thing to do; you are doing it because you have been forced to do so, dragged kicking and screaming. Government senators interjecting— The ACTING DEPUTY PRESIDENT ( Senator Whish-Wilson ): Order! Senator Wong has the right to be heard in silence. Senator WONG: I want to go through a couple more matters in relation to what has been said publicly about this. First, Premier Barnett has responded to the report in The West Australian. Let us remember that that is a pretty damning report. The report, which ran on Friday of last week, said: Despite Senator Brandis’ instruction, the ATO's written submission to the High Court — authored by Mr Gleeson — used the precise legal argument that the Attorney-General had assured his State counterpart Michael Mischin would be avoided by the Commonwealth. There are two ways of understanding that. One is that Senator Brandis has done one of those deals he walks away from. That is always possible. The other is that Mr Mischin got the wrong end of the stick, which, I think, is Senator Brandis's proposition. The point is: that is clearly on the record, and I do not believe it has been answered properly by the statement the Attorney just gave. The Western Australian government's position is very clearly that they had been assured by this minister, this Attorney-General, that that argument would be avoided: Mr Mischin was infuriated by the ATO's move, not only because its argument in the High Court was on a basis the Commonwealth had promised not to advance, but because he thought the tone of the agency’s submission professed WA's ignorance of the Constitution. In fact, the Commonwealth was kept well abreast of the State’s intentions, with WA openly discussing the constitutional issues concerning its legislation and even sharing early drafts. It is not like this is a new thing—they cannot have had an exchange of papers, an early draft here, an early draft there, checking out if this is okay—but Senator Brandis wants us to believe he was not part of it at all; he knew nothing about it; it is all that pesky Mr Hockey's fault. Bring him back from Washington and let him explain to everybody what happened. Then: WA Treasurer Mike Nahan had received personal and written assurances early last year from then Federal counterpart Joe Hockey that the Commonwealth would not oppose the State Governments move. … … … … five days after the High Court had heard the case, Mr Mischin and Senator Brandis had what witnesses say was a ''blazing row'' when the two attorneys-general met in Perth. Mr Mischin told Senator Brandis he was unhappy that the Commonwealth intervened in the case on the grounds pursued in court. Let us remember also the sequence here. This is all happening in March and April, and then: On May 4, Senator Brandis issued a directive that any department or agency seeking legal opinion from the Solicitor-General must first get Attorney-General approval. Senator O'Neill: Locking the gate after the horse has bolted. Senator WONG: Senator O'Neill says, 'locking the gate after the horse has bolted'—I think that is true, but now he wants us to believe, as I infer from his statement— Senator O'NEILL: There's no link. Senator WONG: there was no link, like it was just happenstance. Senator Pratt: A happy coincidence. Senator WONG: It was apparently just a happy coincidence that there was this flaming row. Mr Gleeson did what he should have done, which was to unpick it under constitutional law. He gave advice about that. How dare he actually do his job! Then magically the Attorney-General gave him a direction which said, 'You have to get my permission before you do that again.' There was nothing in the statement today about that, was there, Senator Brandis? There was nothing at all. In fact, this Attorney-General has never given an adequate explanation for why he sought to muzzle the Solicitor-General in the way he did. We know he was not able to proceed with that because this Senate had the numbers to disallow that direction. Senator Brandis beat a hasty retreat when he realised he did not have the numbers to defend the direction. And then we disallowed it in any event to prevent him making the same direction in six months. Senator Ian Macdonald: What about a bit of fact? Senator WONG: I will take the interjection on 'a bit of fact'. A fact is that a direction was made. A fact is that the Attorney-General never explained adequately why the direction was made. A fact is that this direction came shortly after a big blazing row with Western Australia involving the actions of Mr Gleeson. Senator Ian Macdonald interjecting— Senator WONG: Those are all facts, Senator Macdonald. They might be inconvenient facts to you, but they are the facts. They are also the reason— The ACTING DEPUTY PRESIDENT: Senator Wong, please address your comments to the chair. Senator WONG: I am happy to do that, but Senator Macdonald is yelling at me, so I have to yell back, you know? I expect I was raising my voice! I said that— The ACTING DEPUTY PRESIDENT: I ask Senator Macdonald to cease his interjections. Senator WONG: If he would cease interjecting, that would be very helpful. Senator Ian Macdonald interjecting— Senator WONG: I do not think he is listening, Mr Acting Deputy President. The ACTING DEPUTY PRESIDENT: I will ask you again, Senator Macdonald: please do not interject. Senator WONG: I am very happy to address the chair. There is a gaping hole in the statement that has been provided. Why is it that shortly after these events the Attorney-General moved to muzzle Mr Justin Gleeson? Senator Brandis: There is no relationship— Senator WONG: He now says there is no relationship! This is the problem, isn't it? You treat people like mugs, Senator Brandis. You really do. You really treat people like mugs. You expect everyone to believe that the Solicitor-General essentially telling you, 'This political deal contravenes the Constitution and the Commonwealth ought to intervene to uphold the law and the Constitution'—as is your duty— Senator Brandis interjecting— Senator WONG: Yes, you followed his advice, but only after it was required. Before that point you were happy to go along with the deal, Senator Brandis, won't you? You were happy to go along with the deal. The reality is that Senator Brandis is asking everyone—all of this chamber and all of the public—to believe that his direction to Mr Gleeson had nothing to do with this. It just beggar's belief. The time frame just beggars belief. So he just woke up one morning and magically thought, 'I am going to muzzle the Solicitor-General. That is a good idea. I'm going to do that today. Let's muzzle the Solicitor-General today.' He says it has nothing to do with this obviously problematic political circumstance which was arrived at in great part because Mr Gleeson stood up for a proper application of the law and for the right constitutional reading. I am sure that Senator Brandis was aware that the opposition and the crossbench had sufficient numbers to suspend standing orders this morning in order to move the motion I moved today. I am sure that Senator Brandis knew that he would have to give a statement, not because he wanted to. We all know from observing him in this chamber that he is not someone who likes coming in here to explain himself. He is not someone who likes answering questions. He is not someone who likes to have to give an account of his behaviour. He has been forced to do so because he did not have the numbers in the Senate. I suggest this. I would be happy if he stands up and says I am wrong. I suspect the Prime Minister phoned him and said, 'You've got to do something about this.' I suspect Mr Turnbull finally found a backbone when it came to dealing with Senator Brandis and said, 'You've had a bad week, George. You have called your colleagues "very, very mediocre". You've had a bad week. But you really need to get into the chamber— Senator Brandis interjecting— Senator WONG: I am not surprised you are interjecting, Senator Brandis. I suggest the Prime Minister said, 'Get into the chamber and explain yourself.' I do not think this comment of, 'We do not comment on matters to which we have been a party,' is going to cut it. It does not cut it. We know from the statement that there remain many questions unanswered. We know from the statement that this government is seeking to throw Mr Hockey under a bus. This was a deal which involved Commonwealth taxpayers basically being deprived of money for the Commonwealth budget because it suited a political deal with their mates in Western Australia. We know that that occurred. We know that Mr Hockey was involved. But what is clear is that all the responsibility for that is now being sheeted home to the person who is now the Australian Ambassador to the United States. There are many more questions to answer. If it is the case that the rest of this government were somehow magically unaware of this, you would have to ask, 'What were they doing?' If hundreds of millions of dollars were to be provided to the Western Australian government under a political deal, a deal that was contrary to the Constitution, how was it possible that the cabinet was not informed? How was it possible that the Minister for Finance did not know, because it affects the budget he has responsibility for? How is it possible that the Assistant Treasurer did not know until later, because the ATO is her or his agency, depending on who it was at the time? And how is it possible that the Attorney-General did not know that there was some arrangement about how this matter was to be dealt with before the High Court? The reality is that there was a political deal to seek to circumvent the Constitution, and the Attorney-General's statement today does little to throw any light on the matter. What it does do is seek to blame Mr Hockey for this agreement. It is quite clear what the tactic is, and I look forward to the ambassador making his views clear about this issue.