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

Senator Xenophon, I follow your argument that Senator Leyonhjelm's amendment is out of abundant caution. But, Senator Xenophon, it is entirely unnecessary. There is all the difference in the world between a provision in a statute that creates an immunity and a provision in a statute that confers or, as in this case, declares a power. The bill that we are debating is a bill that declares a power. It does not create immunity. Immunity provisions are read down very narrowly by courts so that if the government wished to create an immunity it would be necessary to do so in clear and explicit terms. The fact that there is no immunity provision created here, because to do so effectively it would be necessary to express it in clear and explicit terms, is really the answer to your concern and to Senator Leyonhjelm's concern.

In relation to the question of costs, Senator Xenophon, I think we are getting ahead of ourselves. We do not know how the High Court will resolve the proceedings before it. We do not know, in the event that the Commonwealth were to be successful, on what ground the Commonwealth would succeed. Whether that success would depend upon this bill or depend upon the pre-existing state of the law we just do not know. So it is not appropriate for me to, and I am not in a position to, give you any assurances in relation to the question of costs if the Commonwealth is successful.