Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

Now we are debating government amendment (1) with the note that I mentioned where we state whether a reasonable person in those circumstances would fear or be apprehensive about his personal wellbeing or safety. The question of a reasonable person in those circumstances fearing for their safety is not something which is inappropriate, because we are talking in the particular circumstances which would necessarily address the set of facts that Senator Siewert has outlined. It would not be one which is just taken at face value where people would say: ‘You got the card. Isn’t that nice?’ The note that we are adding to our definition requires further inquiry as to the particular circumstances. That means surrounding events and occurrences could be looked at, which is exactly what Senator Siewert has mentioned.

We do not believe in a totally subjective approach, because that would mean that anybody could make an allegation and be taken as having some substance without even having to go any further. Even at law in crime and civil jurisdictions we talk of a prima facie case in crime and we talk of the average reasonable person—the ‘reasonable man’ test—in terms of what is negligence. I think you have to have a balance between subjectivity and objectivity if the administration of justice is to be accommodated.