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Wednesday, 13 November 2002
Page: 6178


Senator MURPHY (10:00 AM) —I do not want to take up the time of this chamber with regard to the progress of this bill, but I am curious about something the minister said. She said that the states are waiting for us to put through this parliament the legislation at a Commonwealth level, and they will then proceed to mirror that legislation. If the word `intentionally' were not in there, would it breach any agreement that exists between the states and the Commonwealth with regard to the form the legislation must take? Would it cut across states prosecuting law in relation to their arrangements? As I understand it, they are different in many cases. I am not sure why there seems to be a technical problem with regard to this word. The minister said that the states are waiting for the Commonwealth to pass the law and then the form of the law will be mirrored at a state level.

If there is a reason why the word `intentionally' might from a technical legal point of view cut across the objective or meaning of a law at a state level, I would like to know it—because, if that is the case, I can understand what the minister is saying. But, otherwise, when she says, `We are putting it in there to be prudent,' I accept that you might be putting it in there to be prudent, but I would suggest that it could probably create some very serious arguments within the courts in the longer term. I am sure some very smart lawyers, barristers or QCs will look at this and think, `How do we determine “intentionally”?' I am not a legal practitioner, but I have found that in some of the cases that I have read the excuses that have been used to avoid or get people off a conviction have been very spurious, to my mind. I am loath to put anything in law that would offer an opportunity for that to occur. I am just curious if the word `intentionally' is being put in there to assist the states. If it is not, I do not see the problem.