Subject/s: George Brandis and the Bell Group case
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
MONDAY, 28 NOVEMBER 2016
Subject/s: George Brandis and the Bell Group case
DAVID SPEERS, HOST: The Shadow Attorney-General Mark Dreyfus joins me now. Thank you for your time.
DREYFUS: Thanks for having me David.
SPEERS: You were particularly critical about George Brandis over the weekend. You said that if correct it’s as clear a case of corruption as one could imagine. If what was correct? If evidence could be found of him actually being involved with this arrangement in WA?
DREYFUS: If the story as reported in the West Australian was correct is what I was saying and I absolutely stand by my comment that this is as clear a case of corruption as one could want.
SPEERS: So you’re not satisfied by the statement he gave today in which he specifically says that he strongly – he arrived at the firm conclusion that the ATO should intervene in this case.
DREYFUS: Eventually, it seems. This is an extraordinarily selective statement in which Senator Brandis blames everybody but himself David. It beggars belief that he didn’t know about this until the 3rd of March which is what he’s trying to claim. This was – we have to go back to what this was about. This was an attempt by the West Australian Parliament to dud the Commonwealth taxpayer of $300 million. The idea that a Commonwealth government would stand by – would not immediately leap into a case in the High Court to challenge that – is incomprehensible. The idea that he wavered for a minute is incomprehensible and that’s what shows that he is actually covering up.
SPEERS: Back to the WA legislation, the Bell Act, according to George Brandis, was simply about winding up such long litigation and ensuring appropriate creditors received their benefit.
DREYFUS: Well that’s what the West Australian government says. This has been a long-running piece of litigation – a $1.8 billion or so pot of money – and one of the creditors, a creditor that gets first preference in all windings-up, is the Federal Commissioner of Taxation. For a government that claims to be worrying about our revenue, that claims to be worrying about a credit rating, that they would just give up $300 million that comes to them with a guarantee under the Corporations Act I find extraordinary.
SPEERS: Is there any evidence George Brandis knew about such an arrangement?
DREYFUS: Of course. He said he knew about it from the 3rd March. I find that very difficult to believe. He would have been notified as soon as this Act was passed, he would have been notified that proceedings had been commenced in the High Court of Australia. The Commonwealth gets a notice inviting it to intervene, it can intervene as of right. The whole thing stinks, because it was left to the Australian Tax Office and happily for Australia’s taxpayers, Justin Gleeson the Solicitor-General to pursue this. Again I can say we owe a great debt to Justin Gleeson for holding George Brandis to his duty which he clearly didn’t know.
SPEERS: But again George Brandis says when he became aware of this, and he spells out what happened and who he met and who he spoke to including Kelly O’Dwyer, the Second Commissioner of Taxation, and then Justin Gleeson the-then Solicitor-General. Yes he considered options but then says ‘I should stress that was never a view I arrived at in relation to, one of the options being, that the ATO should not intervene’. And then he says ‘after my discussions I arrived at the firm conclusion that it was desirable the ATO should intervene to protect the interests of the Commonwealth. Notwithstanding the view that had been expressed to me by the West Australians regarding Joe Hockey’s discussions. I was also of the view that it was necessary for the Commonwealth to intervene in addition to the ATO’.
DREYFUS: Eventually. And that’s what the story on the front page of the West Australian was about on Friday. It’s about George Brandis attempting to stop both the ATO and the Commonwealth – through Justin Gleeson, the Solicitor-General, from intervening.
SPEERS: But what evidence is there for that?
DREYFUS: Well that’s what we need to hear properly from George Brandis. Not obfuscating, not attempting to hide behind legal professional privilege.
SPEERS: But you’re saying eventually he arrived at the right decision. How do you know he wasn’t there all along?
DREYFUS: It’s the attempt. And that’s what was reported. And that’s why I very carefully said if this story in the West Australian is correct – and I’ve got no reason to doubt it – the series of events supports it – the West Australian government statement. They thought they had a deal. That supports it too. The fact that the ATO…
SPEERS: But they thought they had a deal with Joe Hockey. Nahan has said that. He said the deal was with Joe Hockey.
DREYFUS: It’s the same government. George Brandis was the Attorney-General in that government as well and it’s after the change of leader, we then get a new Treasurer but the same Attorney-General. And we then get the legislation passed in the West Australian Parliament, immediately then challenged in the High Court of Australia. It’s a dirty deal done by this government, be it the Abbott or Turnbull government because it’s both, that’s when the Act came through, when Turnbull was Prime Minister – to favour their West Australian Liberal Party mates over the Australian taxpayer. We haven’t heard the last of this because George Brandis’s statement does not go to his actual discussion with the Attorney-General and it does not say what it is that he told the Solicitor-General. It’s pretty important David.
SPEERS: And he says this is protected by privilege. Is it protected by privilege? That discussion? Because this is key.
DREYFUS: Generally speaking, discussions between clients and lawyer are protected by privilege. But this client is the Attorney-General of the Commonwealth. He’s accountable to this Parliament, he’s accountable to the Australian people, and that’s why he should be telling us frankly and fully what it was that he first instructed Justin Gleeson to do, what he next instructed Justin Gleeson to do. We know what the outcome was, which was that in the end – dragged kicking and screaming it seems – the Commonwealth came in to back the position first adopted by the Australian Tax Office.
SPEERS: OK but to be clear, legally, is this protected by privilege or not, this conversation?
DREYFUS: As I’ve said to you David the communications between client and lawyer are generally protected by privilege. That doesn’t stand against parliamentary committees and for good reason, and it shouldn’t stand between the Australian people and knowing what George Brandis did in this case.
SPEERS: So that would trump the privilege?
DREYFUS: Well I would say that just as a matter of political accountability, this Attorney-General needs to fess up as to what he said to the Solicitor-General. It’s very important, because the story as reported suggests that he was prepared to put his political mates ahead of his duty to the Commonwealth. That’s why I described it as corrupt activity because that’s what it is. When you put private interest ahead of public duty.
SPEERS: In the end, do you concede that he arrived at the right outcome?
DREYFUS: Well in the end, the formal record discloses that Justin Gleeson was allowed to go into the High Court and argue the inconsistency with the Commonwealth tax law and 7-0, the High Court…
SPEERS: Doesn’t that indicate to you that somewhere along the line, in the worst case scenario, that somewhere along the line he has made the right call?
DREYFUS: Well it means that he wasn’t permitted either by his colleagues or by what he was told by Justin Gleeson, to go forward with the dirty deal that had been done with the WA Liberals which was to let this special Act go through, give up $300 million of taxpayers money, and happily for the Australian taxpayer that didn’t happen. Happily for the budget, that didn’t happen.
SPEERS: OK but there’s still no evidence is there, that Joe Hockey made such a deal? We have what Mike Nahan said on the Hansard in WA Parliament but there’s no smoking gun here that says Joe Hockey agreed to this.
DREYFUS: And that’s because we haven’t had a full and frank account from any of the Commonwealth ministers concerned…
SPEERS: But can you say “dirty deal” without evidence?
DREYFUS: Well we’ve got the letters, that passed between the two governments in April 2015…
SPEERS: But that’s not the smoking gun.
DREYFUS: We’ve got the fact of the legislation going forward, we’ve got Dr Nahan in the West Australian Parliament, we’ve got Michael Mischin the Attorney-General of West Australia who are all saying they had a deal with this federal government and that’s very significant. What we’ve got is omission and evasion from George Brandis today – who keeps saying ‘I made a statement in the Senate’ – well he did make a statement in the Senate but that statement raises more questions than it answers.
SPEERS: You did say at the weekend you would use all mechanisms available in Parliament to pursue this so what can you do now?
DREYFUS: We’ve called on Senator Brandis to make a statement, he’s made a partial statement. We’re now looking at whether or not to go forward with a Senate inquiry.
SPEERS: Right and so you’re talking to the Greens, crossbenchers about a Senate inquiry?
DREYFUS: Of course.
SPEERS: That would specifically look at the conversation between George Brandis and….
DREYFUS: Among other things, and what was the deal done between the Abbott and Turnbull governments and the WA Liberal government, and more precisely, you’ve hit the nail on the head here David – it’s what passed here? What did George Brandis attempt to do which happily in the end he wasn’t able to do? Because the attempt is just as potentially a breach of duty as anything that had actually been consummated. He didn’t get there, that’s a mercy, but we should be pursuing this because the story in the West Australian is incredibly concerning as to what it describes as to the conduct of Senator Brandis as Attorney-General of the Commonwealth.
SPEERS: And without answering the specific questions you’ve laid out there, what is your position on whether George Brandis should stay in the job?
DREYFUS: There is such a long list of missteps and incompetence over the whole period of his Attorney-Generalship. It is extraordinary that he is still there, it shows how weak a leader Malcolm Turnbull is that he is still there. I’m expecting him to go in a reshuffle and in not too long a period at that.
SPEERS: Shadow Attorney-General Mark Dreyfus thanks for joining us this afternoon.
DREYFUS: Thanks very much David.