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

Well, it could. It might. As I said to you, Senator McKim, in our exchange last night, ordinarily one would expect the minister to act on the basis of information put before him in a brief from the department. I think it would be tedious to revisit the thorough discussion we had of these issues last night, but the concept that the provision operates upon is the concept of the minister becoming aware of certain facts. 'Becoming aware' is not a lawyer's term of art, so it is given its ordinary or common-speech meaning. The dictionary defines it as 'cognisant or conscious'. It must be more than suspicion or belief. The minister would have to be, in my view, satisfied as to the existence of relevant facts.

As a I said to you last night, I do not think the standard of proof is the appropriate term here because the standard of proof assumes a dialectical process of decision making such as courts engage in. What we are concerned with here is administrative decision making. As you rightly say, Senator McKim—you were a minister yourself—you know that there are certain circumstances in which ministers exercise a discretion and they exercise discretion on the basis of having to be satisfied of the existence of certain facts or jurisdictional preconditions. That is the way this would work.