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

I wish to ask the Attorney some questions that I flagged in my contribution to the second reading debate—which he did respond to, to be fair to him, in his summary on the second reading. But I want to indicate that his responses have raised further issues in the minds of the Australian Greens. Firstly, I just want to reject the categorisation of the Australian Greens as a left-wing authoritarian party--although it is reassuring to me that you believe that, Attorney, because it says to me that you do no understand what drives the Australian Greens, and while you do not understand what drives us you will never defeat us. So, it is reassuring to me that you have miscategorised the Australian Greens so egregiously.

With regard to the standard of proof, you have referred the Senate to the Briginshaw standard. I mentioned the Briginshaw standard, not by name but by effect, in my second reading contribution when I mentioned the term 'comfortable satisfaction'. Now, you said in your summary on the second reading that the standard of proof that this legislation creates, which is 'a high degree of probability', falls between the civil standard of 'balance of probability' and the criminal standard of 'beyond reasonable doubt'. You then referred us to the Briginshaw standard of 'comfortable satisfaction'.

So, Attorney, I have a couple of questions for you. Firstly, if it is your intent that the courts interpret a standard of high degree of probability as the Briginshaw standard of comfortable satisfaction, why did you not use those words—'comfortable satisfaction'—in this legislation? Secondly, can you please confirm that it is your intent that the courts interpret 'high degree of probability' as 'comfortable satisfaction'? I do think it is important that you place it on the record, because the courts may well come back to this debate in order to assist them in interpreting the legislation. Thirdly, I want to remind you that I have asked you whether there is any other legislation in any Australian jurisdiction that establishes a standard of proof of high degree of probability or comfortable satisfaction. That is a question specifically in regard to legislation, not to jurisprudence and previous decisions of any court in this country. Finally, could you also, if you are able, point the Senate to any other legislation, anywhere in the world, that uses the Briginshaw standard or the term 'high degree of probability' in establishing a standard of proof?