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Wednesday, 9 November 2016
Page: 2270

Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (10:43): This is a compliance obligation, Senator; it is an obligation to comply with the order of a court. And one of the golden rules of orders of courts that burden people is that they be as specific as possible about the obligations imposed by them—and that is done in fairness to the person the subject of the order of the court. We could have an argument about whether four hours is too short or long a period of time once you become aware that the device is not working. But the answer to your question is that it is like when a civil court issues an injunction: it is an absolute golden rule that if you are going to impose obligations on a person—particularly unusual obligations, such as here—there has to be the greatest clarity as to what their obligations are. It cannot be left to a matter of judgement, because then they would never know whether they were in breach or not. That is why, in orders imposing obligations upon a person, it is always bad practice to express it in vague terms like, 'as soon as reasonable' or, 'as soon as practicable'. The person has a right to be aware of the specific obligation they lie under.

You posit a case where, say, the person did not notify for 4½ hours—I think if we are getting down to that level of refinement, a little common sense is necessary here. There is a public document—available on the website of the Commonwealth Director of Public Prosecutions—called the Prosecution Policy of the Commonwealth and there are public guidelines published as to the principles that will guide the DPP before instituting a prosecution. In the case of a trivial breach of the kind you posit, of an order of this kind, it would be inconceivable that there would be a prosecution.