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Monday, 13 February 2017
Page: 609

Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (13:01): I think we are not all that far apart. One further point I should have made in the observations that I made a few moments ago is that this is subject to a reasonable person test. In section 26WE the test is whether a reasonable person would likely believe that the data breach would cause significant harm. Senator Ludlam, as you know, it is a very commonplace device in the law to subject these kinds of criteria—which cannot be defined on a case-by-case basis, because of the infinite variety of potential circumstances to which they might attach—to a reasonable person test, and that has been done. I think I will stop there. What we are trying to achieve is not very far apart, if not essentially the same. There are various ways of testing this. As a result of quite extensive consultations, the government has landed at adopting the test that I have expressed. That is a test that is workable and can be informed by practice, precedent and the guidelines of the Information Commissioner.