Jordon Steele-John (WA, Australian Greens) Share this | Hansard source

I will speak very briefly. Putting aside the usual theatrics that surround the contention that there's been any opposition to or scrutiny of this legislation, it was really disappointing to see so much fuss and fluff made about the creation of an inquiry into this legislation, only to see most of the recommendations made by the experts who gave their time to it thoroughly ignored by the opposition and the government. But let me just pick up this critical point around 'good faith' that has been made in the contributions by the minister and by the opposition and the fact that that offers us a protection in relation to the issues raised in this particular amendment.

I draw your attention to the evidence given by Mr Andrew Ray and Ms Charlotte Michalowski, who explored the issue of good faith further in their evidence to the committee, suggesting that perhaps a higher standard, such as proportionality, may be more appropriate. They outlined in their submission the lack of clarity around what 'good faith' can be interpreted as, stating:

… there are significant concerns regarding the use of the limitation of ‘good faith’ contained in the immunity provision. Good faith has been widely used in immunity provisions, however academic commentators have highlighted that the exact scope of the term is unclear, with few cases having applied the test in relation to immunities. At its widest the immunity may protect anyone who subjectively believes they are acting in good faith. Alternatively, in some cases courts have considered competing policy considerations to weigh up whether an action should fall within a good faith exception. It is unclear which standard would be applied were the application of immunity contained in s 123AA challenged. This leads to the situation where it is unclear when an individual could rely on the immunity, a position that is at odds with the stated justification of the amendment.

So there we have it very clearly from two people who know what they're talking about and have no political vested interest in getting this bill sorted out and done. I think it's worth noting that this is a vagary which is causing the Commonwealth, broadly, many problems. As some of your own members acknowledge, there is a need to define clearly what we mean when we say 'good faith'. Just like the questions around the constitutional head of power that supports many of the activities described in this bill, it would be much better to clarify this issue before leaning on a concept of 'good faith' that is not settled and may prove to be unstable when relied upon.