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

There is a very clear reason for proposed section 187K of the bill being structured in the way that it is, and that is because it provides the flexibility to grant exemptions on a class basis or on a case-by-case basis. Exceptions can either be provided by category or on a case-by-case basis to individual service providers. And I am a little taken aback, frankly, Senator Ludlam, by your critique, because I thought one of the points you were at pains to agitate in this debate was that there should be particular concern for the interests of the small ISPs—which the government agrees with. But the nature of the needs and the persuasiveness of the case put by an individual ISP for an exemption will depend upon that ISP's particular characteristics. I think it is quite wrong—I think it is from a methodological or even a logical point of view wrong—to say that, where one is considering whether exemptions ought to be granted, one ought to be limited only to granting exemptions to an entire class, although that class may contain quite a degree of variability within it; rather than to look at each individual, where appropriate, on a case-by-case basis. Proposed section 187K, as currently drafted, does both. Where there is a sufficient degree of uniformity among a particular class of like ISPs or service providers, then a class exemption can be granted of which all of them may be the beneficiary. But where there is a particular ISP which has unique features, so that it is appropriate to look at it and to look at its profile on an individuated basis, than the draft allows for that to happen too. And your amendment, Senator Ludlam, were it to be carried, would entirely remove the capacity to deal with an individual ISP with an individual or unique profile on an individuated basis. For that reason, the government frankly does not see the utility, even from the point of view of the argument you advance, Senator Ludlam, of your amendments and we do not support them.