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Monday, 30 August 2004
Page: 26706

Senator ELLISON (Minister for Justice and Customs) (7:41 PM) —I need to conclude my remarks in relation to the government's position on the Democrat amendment as I was outlining previously the government's rationale for not agreeing to the Democrat amendment. I had reached the part of my remarks where I stated that, in order for a prosecution to succeed, the offender must be aware of a substantial risk that their conduct would be considered by a reasonable person as either menacing, harassing or offensive and that, knowing this to be the case, they unjustifiably continued with their conduct.

As I stated earlier, any consideration by the arbiter of fact, which is usually a jury, of what the reasonable person would think, given all the circumstances in which the conduct occurred, would include some consideration of issues such as whom a particular communication was targeted at and whether it could be accessed by just one person or many. This, nonetheless, does not justify the argument for making a prosecution of the proposed offence entirely dependent on whether a particular individual—thick-skinned or the complete opposite—feels menaced, harassed or offended by the offending conduct. The question of a reasonable person using that as a yardstick is, as I say, nothing unusual in the law. We believe that to depart from that would be to depart from principles behind the offences in the Criminal Code.