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Legislative Assembly for the ACT: 1999 Week 7 Hansard (30 June) . . Page.. 1802 ..

MR STEFANIAK (continuing):

Watson and Purnell go on at page 22:

Unless a statute clearly or by implication rules out mens rea a man -

we can read that as a woman now -

should not be convicted unless he -

or she -

has a guilty intent.

Page 23 reads:

It is a general rule that a person who does an act under a reasonable misapprehension of fact is not criminally responsible for it even if the facts which he believed did not exist.

Again, read "she" for that. That, Mr Speaker, is the criminal law.

It is interesting, looking at the editorial in the Canberra Times today, to see their point of view. The editorial is headed "Carnell should not be ousted". In dealing with the issue of the Financial Management Act, the editorial summarises the position very succinctly in the second full paragraph in the second column:

In doing so, it -

that is, the Government -

engaged in the processes laid down in the old Audit Act for investment. Those sorts of investments do not need parliamentary approval. However, a new Financial Management Act had since been passed to provide more flexibility and accountability. It required investment guidelines to be issued by the Treasurer before investments could be made. A guideline to carry the Bruce investment had not been issued. So the Bruce investment did not comply with the Financial Management Act. But it would have been only a formality to make it comply. There are no criminal penalties in the Act. It is a procedural requirement, not a criminal offence.

So much for the criminal definition of "intent". An interesting definition of "intent" in terms of the civil law can be found in a judgment by Lord Devlin - Devlin J, as he then was - in 1957 in St John Shipping Corporation v. Joseph Rank Ltd, (1957) 1 Queen's Bench, 267 at page 288. His Honour said:

Caution in this respect is, I think, especially necessary in these times when so much of commercial life is governed by regulations of one sort or another, which may easily be broken without wicked intent.

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