Nick Xenophon (SA, Independent) Share this | Hansard source

He loves the courts. The government may well be confident that its legislation will stand up to any challenge, but the government was also confident about its Malaysia solution.

Just a few months ago I had the pleasure of speaking and giving awards at the annual Tim McCoy Memorial Dinner in Melbourne, commemorating a brilliant young community legal service lawyer who died far too young. As part of that night I gave out awards to David Manne and his team from a community legal service that took on the federal government on the Malaysian solution. I spoke to them after the awards. I think it was about 35 days from the time they got a call from asylum seekers on Christmas Island to the time of the High Court's decision, and they worked around the clock. Now if a dedicated bunch of community legal service lawyers and barristers can overturn legislation that the government was very confident about, I dread to think what Mr Palmer, with his seemingly limitless resources, can do in challenging this legislation.

That is why I think there ought to be some transparency in the legal advice. It is important that we are reassured by the government with, at the very least, a substantial precis of the government's legal advice concerning the robustness of this legislation. After all, if this matter does end up in court, presumably that legal advice will form the basis of arguments that will be put to the judges of the High Court, and in that case I can see no prejudice for the government to outline its arguments in terms of any potential challenge to this legislation.

Senator Cormann is right, it cannot be the subject of a challenge in our system until after the legislation has been passed. Unlike other countries we do not have a system in which you can have a construction summons whereby before legislation is passed, before it is implemented, it can be the subject of judicial review or challenge on the grounds of constitutionality. I think the government will end up with more than egg on its face if Clive Palmer is right and the government is wrong on the legal position.

I would also like to hear from the government about the impact of the tax on small miners, particularly those emerging miners, and future investment. What modelling has been done? Does the government consider that there is not necessarily competitive neutrality in the basis of this tax? We can see that in the opportunity the bigger mining companies have to depreciate the significant market value of relevant project assets over a period of up to 25 years. This can be seen to give them a significant advantage.

I have reservations about this tax and a whole range of measures associated with it and its potential constitutionality. I hope that it does withstand a constitutional challenge because I think it is important that we derive the revenue from the mining boom for the public good. But I am also concerned about unintended consequences that could crimp investment in the mining sector, particularly among smaller miners. But, on balance, it is important that we harness some of this mining boom for the broader public good. It is important that it be monitored on a regular basis to ensure that unintended consequences are dealt with expeditiously. I hope that this bill will deliver the benefits to Australians that it is intended to and that Australia continues to remain the lucky country, despite the obvious flaws in the structure of this bill. I believe that the perfect should not be the enemy of the good. While this bill is far from perfect, I believe it ought to be passed.