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

Thank you, Attorney-General, for your response. I will check the other state legislation to which you have referred. The reason I was looking doubtfully at you is that the advice you have just provided to the Senate is not consistent with the advice I have, but I am happy to double-check that. I do not seek to challenge you on that today. My advice is that some of the statutes at a state level actually do require a standard of proof beyond reasonable doubt, not a high degree of probability. But I will check that and, if necessary, we can resume the conversation a later date.

I wanted to now go to your view that an interpretation of where 'high degree of probability' sits in relation to the Briginshaw standard of 'comfortable satisfaction' is best left courts. I think the view that that is best left to the courts reflects to a degree, if I might say, your legal background here. As you know, I do not have a formal legal background and would regard myself more as parliamentarian than a lawyer, if I can put it in those terms. I will just respectfully say that I do not agree with you. I think it is the parliament's job to be clear with the courts about how they ought to interpret legislation. It remains my view the you ought offer some guidance to the courts in this debate in regards to how they ought to interpret the term 'high degree of probability' in relation to or in comparison to the Briginshaw standard of 'comfortable satisfaction'.

But I wanted to ask you a further question, which goes to the policy intent of this legislation. It is very simple one: why have you decided to make the standard of proof 'high degree of probability' rather than 'beyond reasonable doubt', which is obviously the criminal standard? I might add, that is standard those who the legislation applies to will have been convicted using.