George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

There are two main problems here and Senator Xenophon has addressed one of them. The inadvertence is on the part of the government, with respect. What you have done, presumably inadvertently, is to mix up the repeal of the statutory guidance to the courts in applying the Birdsville amendment with the notion of recoupment. The Birdsville amendment and the issue of whether market share should be a test for entry into section 46, and should be the criteria that guide courts in applying that test, is one issue. Recoupment is a different issue. What you have done, by the way in which you have gone about the proposed new section 46(1AB), is to run the two things together in a manner that is confusing. Senator Xenophon, you are absolutely right in your apprehension that by voting for section 46(1AB) you would defeat the effect of what the opposition is trying to do to preserve the Birdsville amendment.

The second issue, which is the issue Senator Joyce alluded to, is that by introducing into section 46—even if it were not inadvertently mixed up with the substantial market share issue—this notion of recoupment expressed in this way as negative guidance to a court, you are creating, as I said before, an exception to a non-existent issue. It is an issue that does not arise on the face of the act at the moment and may very well have the unintended consequences, opposite to the expressed intention of the government, of which Senator Joyce has quite rightly warned.