George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Hansard source

The answer to that question is yes. Conceivably, one can imagine a set of circumstances in which one demonstrated that there was an inability to recoup the losses but nevertheless was able independently, by proof of other facts and circumstances, to demonstrate that one of the proscribed purposes in section 46 was present. Senator Murray, you are dealing with these things in real time too. The recoupment issue is always going to a retrospective issue. It is always going to be an issue that is addressed by courts and barristers with the luxury of looking at what happened retrospectively. But, of course, at the time at which the conduct is engaged in, which is usually either contemporaneous with or post the time at which the relevant purpose was formed, then it may well be that the malefactors, the people who constitute the corporate mind, are not in any sophisticated or systematic way turning their minds to issues of recoupment at all. So I can well imagine a circumstance in which one could demonstrate a section 46 breach even though, looked at with the benefit of hindsight, as courts inevitably do, it could be demonstrated retrospectively that there was in fact no prospect of their purpose being fulfilled at all.

Question put:

That the amendments (Senator Sherry’s) be agreed to.