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Monday, 30 August 2004
Page: 26632

Senator ELLISON (Minister for Justice and Customs) (1:57 PM) —Firstly, the government does not support this proposed amendment, as I indicated. The government believes that it is unnecessary and that it would operate against one of the principles behind the offences in the Criminal Code in that, by requiring another person to in fact be menaced, harassed or offended by the offending use of a carriage service, a subjective standard would be introduced into that offence. By a subjective standard we are talking about the state of mind of that other person. This would have the effect that, where a person uses a carriage service in a way that any reasonable person would consider to be menacing, harassing or offensive, that person could not be prosecuted unless a person was willing to testify that they had in fact been menaced, harassed or offended by the conduct.

This outcome would be determined by how sensitive to such conduct the particular person is who comes across the material on the Internet or who receives such an email. The proposed section is an updated version of section 85ZE of the Crimes Act 1914. In amending this offence the government has purposely tried to move away from the subjective aspects by introducing the objective standard of the reasonable person for all three elements of the offence—namely, menacing, harassing or causing offence. The reasonable person formula is not something that is strange to our law. That formula allows community standards and commonsense to be imported into any decision on whether particular conduct is in fact menacing, harassing or offensive. The fault element that applies to the requirement of the offence that a reasonable person considers the conduct to be in all circumstances menacing, harassing or offensive is recklessness. This means that, for a prosecution to proceed, the offender must be aware of a substantial risk that their conduct would be considered by a reasonable person as being menacing, harassing or offensive and that, knowing this to be the case, they unjustifiably continued their conduct. Any consideration by the arbiter of what a reasonable person would think, usually a jury, given all the circumstances in which the offence occurred, would include some consideration of the issues.

Progress reported.