Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I just want to address a couple of points there, Attorney. Firstly, we will just have to agree to disagree on the wisdom or otherwise of you, as the country's Attorney-General, offering more prescriptive guidance to the courts. I still maintain the view that it would be appropriate for you to do so, but, nevertheless, you have determined that, in your view, it is not, and that is a matter on which we will simply have to agree to disagree.

With regard to the standard of proof, you have spoken about the high degree of probability in the context of both the civil standard of proof and the criminal standard of proof. Just for clarity, I am not arguing that, if you are going to proceed with legislation of this type, you should be applying a lower standard of proof—that is, the civil standard of proof. I am not arguing that at all. I am actually arguing you ought to be applying a higher standard of proof, which is the criminal standard of proof.

I just need to make the point again that the people to whom this legislation might apply will have been convicted under criminal law using a standard of proof of 'beyond reasonable doubt'. I am just saying this to place it on the record. I know I am not going to convince you to change your view here, Attorney, but I do think it needs to be placed on the record. You are now proposing that the courts can imprison someone because they might commit a crime, and that they can do so using a standard of proof that is significantly lower than the criminal standard of proof. I just think that needs to be placed very clearly on the record.

You have categorised this as an unusual power, and that is a matter on which we completely agree. This is a very unusual power. You have indicated, Attorney, that it is your view that this power will be used sparingly, and I am paraphrasing you here. And can I say that, if I have paraphrased you correctly, that is a matter in which I join you in fervent hope—that it will only be used sparingly. But I do want to place on the record, Attorney, that you cannot make commitments on behalf of future parliaments, future attorneys-general or future holders of statutory offices in this country. You are simply not in a position to make commitments.

History is replete with examples of the misuse of powers that have been previously created. I could take you to those at length, if you wish, but I think that, given where we are on the last day of sitting, I will restrain myself. But I simply want to say that there are plenty of examples through history of parliaments that have created powers for a specific purpose to address a specific perceived issue and then in the future, and sometimes a long way in the future, those powers have been arguably misused. So the Greens still maintain our view here that there is a possibility that these powers would be used more often than sparingly in the future. We acknowledge that there is a sunset clause now attached to this legislation, but our concerns remain, and we remain opposed to this legislation.