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Monday, 13 February 2017
Page: 609

Senator LUDLAM (Western AustraliaCo-Deputy Leader of the Australian Greens) (13:02): If I do not have the numbers in this chamber to carry this amendment, I am not going to detain us for too much longer; we will wait until we hear from Senator Wong and then we will put this one to rest. I believe we are fairly close in what we are trying to do and I have no problem with the reasonable person test or with their reasonableness—that is a longstanding practice—but the test that this abstract reasonable person would be applying is not between whether nontrivial or nonharmful and trivial or harmful conduct has occurred; the distinction that they would be asked to draw is whether or not serious harm has been done. That is where I have a problem. As the Privacy Foundation and other submitters suggested, an entity would be able to draw the conclusion that it had caused harm to people and yet still not be subject to the operation of this bill. That is certainly, Senator Brandis, not how you have been describing it. You have been describing it in the way that I would hope the law would operate. Under this bill, an entity would be able to draw the conclusion that it had caused harm to its users but that, because it was not serious harm, it did not need to disclose it. I think that is completely unacceptable. That is all we are trying to fix this morning.