George Brandis has denied misleading the Senate when he said the first personal involvement he could recall in the Bell litigation was on 3 March 2016 despite his Western Australian counterpart alleging an earlier discussion about it.
On Tuesday the attorney general told Senate estimates that Michael Mischin’s recollection of a conversation on 1 February 2016 was “entirely consistent” with his earlier evidence because he did not recall the conversation.
Brandis was prompted to make a statement by Labor, the Greens, the Nick Xenophon Team and Derryn Hinch, who demanded in a letter on Monday that the attorney general resolve the alleged inconsistency.
In November, Brandis told the Senate in a personal explanation that the first “personal involvement” he could recall in the Bell litigation matter was “on 3 March [2016], although my office had been dealing with the matter prior to that time”.
“I confirm the accuracy of that statement and those answers,” Brandis said on Tuesday. “At the time I had no recollection of the exchange to which Mr Mischin refers and I still have no recollection of it.”
The timing of Brandis’s involvement may be relevant to when he became aware if there was a deal between the federal and West Australian governments in 2015 that would have cost the Australian Taxation Office $300m.
Brandis has faced pressure on that point since a report in the West Australian in November alleged that the attorney general instructed the then solicitor general, Justin Gleeson, not to run a particular argument in the high court when a creditor of the collapsed Bell Group and its liquidator challenged the constitutionality of a Western Australian law to take control of the group’s $1.8bn.
On Thursday ABC’s 7.30 reported that Brandis spoke to Mischin about Bell on 1 February 2016.
“I indicated that I wanted to discuss any issues the commonwealth might have with our legislation that would kill off the Bell litigation,” Mischin said on Friday in comments quoted by Brandis in full at the estimates hearing.
“[Brandis] 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.
“I had a further conversation with him I think in early March, where he told me that as far as he was presently advised, he didn’t think the commonwealth had a basis to intervene.
“I spoke to him again later in March, shortly before the high court hearing, where he told me that on the advice that he had received he felt obliged to intervene on behalf of the commonwealth.”
Brandis said he did not dispute Mischin’s account, explaining “I don’t say it didn’t happen, only that I do not recall it”.
Brandis noted that in his November answer he had said his office was dealing with the Bell litigation and said he “would have” told Mischin that in the 1 February conversation.
“It does not, in my view, constitute personal involvement to say that my office is dealing with [a matter] and that I would have to make a decision later.”
Brandis said that in February his adviser James Lambie had told him he was dealing with the matter and a decision would be required in the near future about whether the commonwealth should intervene in a high court case about the Western Australian law to resolve the Bell litigation.
“I don’t consider merely being told that a decision in a matter – then being dealt with by my staff – would be required in the future constituted personal involvement at that stage,” he said.
Brandis again denied directing Gleeson about which arguments to run on behalf of the Australian Tax Office. Brandis said he was initially of the view that the commonwealth should not intervene on a particular point but, after a discussion with Gleeson who was “strongly of the view” it should, he yielded.
“There was no constraint on any argument Mr Gleeson might run.”
Brandis accepted that Mischin and the WA treasurer, Mike Nahan, “felt aggrieved” that the commonwealth joined the Bell creditors but said that the former treasurer Joe Hockey had not bound the commonwealth to stay out of the case.
On Wednesday the shadow attorney general, Mark Dreyfus, described the Senate estimates hearing as “farcical”.
He accused Brandis of “trying to cover up his involvement in the shameful Bell affair” by saying 22 times in the first hour of evidence that he did not recall events before 3 March.
Dreyfus questioned Brandis’s competence if he was unable to remember the discussion with Mischin.
