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Tuesday, 10 August 2004
Page: 26030

Senator COONAN (Minister for Communications, Information Technology and the Arts) (4:44 PM) —Senator Brown, I am certainly not being obtuse or attempting not to deal with the question, but the way in which these treaty clauses operate has this intent. It is impossible to rule out the possibility that in some cases a non-discriminatory measure could constitute expropriation. That is not to say that I am able to speculate here about what that possibility might be. It is a saving clause that enables such a possibility to arise even if there is not one contemplated. Obviously, it has to be looked at on a case by case basis. That is what the courts do now—and I can vouch for that from experience—and the agreement will not change that. So I am not able, nor do I think it appropriate that I try, to conjure up some hypothetical situation. What I am telling the chamber in trying to be responsive to your questions, Senator Brown, is that this is a fairly standard way in which to have a saving clause so that you do not rule out the possibility that there may be cases, and we do not know what they might be, where a non-discriminatory measure could constitute expropriation. It is not something that is unusual. Whilst it is difficult to drill down and give concrete examples, because we are looking at a possibility, a hypothetical, it is not altered by the approach that the court takes to these particular matters now. Certainly the agreement will not change this.