Justifications for encroachments

9.110   Are retrospective laws necessarily unjust? In George Hudson Limited v Australian Timber Workers’ Union, Isaacs J said that ‘[u]pon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation’.[127] He then said:

That is the universal touchstone for the Court to apply to any given case. But its application is not sure unless the whole circumstances are considered, that is to say, the whole of the circumstances which the Legislature may be assumed to have had before it. What may seem unjust when regarded from the standpoint of one person affected may be absolutely just when a broad view is taken of all who are affected. There is no remedial Act which does not affect some vested right, but, when contemplated in its total effect, justice may be overwhelmingly on the other side.[128]

9.111   After quoting this passage, Pearce and Geddes write that while ‘a legislative instrument may take away some rights it may confer others and the overall aggregate justice may indicate that retrospectivity was intended’.[129] It may also suggest that the retrospective law was justified. But are there more specific principles that might help determine whether a retrospective law is justified?

Legitimate reasons for retrospective laws

9.112   Creating retrospective criminal offences may be more difficult to justify than other retrospective laws. Article 4 of the ICCPR provides that some rights may be derogated from in ‘times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’—but this expressly excludes art 15, which concerns the creation of retrospective criminal offences. Article 15(2) itself contains one specific limitation, in that:

Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

9.113   For example, retrospective provisions criminalising war crimes (as in Polyukhovich, discussed earlier) might fall within the permissible limitation in art 15(2), if drafted appropriately.

9.114   Laws retrospectively criminalising marital rape might also fall within the limitation. Australian Lawyers for Human Rights observed that as marital rape is ‘a gross breach of human rights’, but has been ‘historically protected or not prosecuted’, retrospective liability may be justified.[130] Laws regarding marital rape are a state or territory responsibility and are not explored in this Inquiry.

9.115   The RACS agreed that in ‘extreme circumstances, retrospective laws may be justified in order to prevent particularly grave injustices’.[131]

9.116   A review of the literature has revealed that retrospective laws in the civil arena have not been as energetically condemned as have those in the criminal sphere. Justifications offered for retrospective laws in the civil arena, as noted above, include that:

  • the law operates retrospectively only from the date upon which it was announced by the Government that it intended to legislate, thereby ameliorating some of the problems with retrospective laws;

  • the retrospective law operates to restore the understanding of the law that existed before a court decision unsettled that understanding (sometimes known as ‘declaratory statutes’);

  • the retrospective law operates to address the consequences of a court decision that unsettled previous understandings of the law;

  • the retrospective law operates to validate decisions that have been subsequently found to be invalid, in the interests of certainty; and

  • the law addresses tax avoidance behaviour that was not foreseen and that poses a significant threat to revenue.

9.117   Whether these justifications are considered acceptable and sufficient by those affected by the retrospective law will depend upon the particular circumstances. For example, as the Tax Institute indicated, if the Government announces an intention to legislate, and then legislates promptly, with retrospective operation to the date of the announcement, this will be more acceptable than if the legislation is delayed. A retrospective law that operates to restore a prior understanding will be more acceptable if that prior understanding was widely held and uncontested.