Laws with retrospective operation

13.58  Retrospective laws are enacted quite frequently in Australia. Palmer and Sampford identified 99 retrospective laws (that is, either retroactive or retrospective) passed by the Commonwealth Parliament between 1982 and 1990, not including ‘routine revision’ statutes.^[71]

13.59  This chapter will discuss four retroactive criminal laws, which may in fact be the only retroactive criminal laws passed by the Commonwealth.^[72] It will also discuss some retrospective civil laws, chosen either because they have been criticised for having insufficient justification or because they are examples of laws that have relied on the justifications identified above.

Criminal laws

13.60  The Guide to Framing Commonwealth Offences states that ‘an offence should be given retrospective effect only in rare circumstances and with strong justification’. Further, if legislation is amended with retrospective effect, this should generally be ‘accompanied by a caveat that no retrospective criminal liability is thereby created’.^[73]

13.61  However, laws that create criminal offences with retrospective application have occasionally been created by the Australian Parliament. The Guide to Framing Commonwealth Offences states that such exceptions have ‘normally been made only where there has been a strong need to address a gap in existing offences, and moral culpability of those involved means there is no substantive injustice in retrospectivity’.^[74]

War crimes

13.62  Perhaps the most well-known retroactive criminal law is the War Crimes Act 1945 (Cth), which was amended by the War Crimes (Amendment) Act 1988 (Cth). The original Act made provision for the trial and punishment of war crimes committed against anyone who was at any time resident in Australia, or against British subjects or citizens of Britain’s allies.^[75]

13.63  The amending Act repealed almost all of the original Act. It created an offence of committing a war crime in Europe between 1 September 1939 and 8 May 1945.^[76] A person who is an Australian citizen or resident at the time of charge may be liable for the offence.^[77]

13.64  Ivan Polyukhovich, an Australian citizen, was charged with crimes said to have been committed in the Ukraine in 1942 and 1943. At that time, there was no Australian legislation which criminalised the acts that Polukhovich was alleged to have done.^[78] Polyukhovich challenged the constitutional validity of s 9 of the War Crimes Act on the ground that it usurped the judicial power of the Commonwealth by providing that past conduct shall constitute a criminal offence.^[79] The validity of the provision was upheld in Polyukhovich. Dawson J commented that

the ex post facto creation of war crimes may be seen to be justifiable in a way that is not possible with other ex post facto criminal laws, particularly where the conduct proscribed would have been criminal conduct had it occurred within Australia. The wrongful nature of the conduct ought to have been apparent to those who engaged in it even if, because of the circumstances in which the conduct took place, there was no offence against domestic law.^[80]

13.65  This is consistent with art 15.2 of the ICCPR which creates an exception for retrospective laws prohibiting acts which are criminal ‘according to the general principles of law recognised by the community of nations’.^[81] It is also consistent with the Guide to Framing Commonwealth Offences which indicates that retrospective laws may be justified where the ‘moral culpability of those involved means there is no substantive injustice in retrospectivity’.^[82]

Hoaxes using the postal service

13.66  In 2001, following the terrorist acts of 11 September 2001 and anthrax attacks in the United States, s 471.10 of the Criminal Code (Cth), concerning hoaxes using the postal service, was enacted by the Criminal Code Amendment (Anti-Hoax and other Measures) Act 2002 (Cth). The amending legislation was assented to on 4 April 2002, with retroactive operation from 16 October 2001.

13.67  The offences created were said to be in response to a ‘significant number of false alarms involving packages or letters containing apparently hazardous material’ in late 2001.^[83] These had resulted in an announcement by the then Prime Minister on 16 October 2001 that new anti-hoax legislation would be introduced if the Coalition were returned to Government.

13.68  The Explanatory Memorandum stated that it was necessary to ensure that hoaxes using the postal service were ‘adequately deterred in the period before the resumption of Parliament’.^[84] The Prime Minister’s announcement provided this deterrent. While one of the criticisms that can be directed at retrospective criminal legislation is that people will be unaware that their conduct is an offence, the Prime Minister’s announcement was said to be in very clear terms, and received immediate, widespread publicity.^[85] An additional consideration was outlined in the Explanatory Memorandum:

there is no circumstance in which the perpetration of a hoax that a dangerous or harmful thing has been sent could be considered a legitimate activity in which a person was entitled to engage pending these amendments. The amendments do not retrospectively abrogate a legitimate right or entitlement. For all these reasons, the retrospective application of these amendments is not considered to contravene fundamental principles of fairness or due process.^[86]

13.69  Despite these justifications, the Scrutiny of Bills Committee expressed concern about these provisions, saying that ‘declaring something “illegitimate”, and then retrospectively declaring it to be a crime, would seem to establish an unfortunate and undesirable precedent’.^[87]

Offences against Australians overseas

13.70  Sections 115.1 to 115.4 of sch 1 of the Criminal Code Act 1993 (Cth) (Criminal Code)  provide that any person may be prosecuted in Australia for the murder or manslaughter of, or for causing serious harm to, an Australian citizen or resident outside Australia.

13.71  These provisions were enacted in the Criminal Code Amendment (Offences Against Australians) Act 2002 (Cth), assented to on 14 November 2002, with retroactive application from 1 October 2002.

13.72  The Attorney-General’s Department advised the Parliamentary Joint Committee on Human Rights (Human Rights Committee) that the impetus for the introduction of these offences was the Bali bombings, which occurred on 12 October 2002. To allow for the prosecution of the perpetrators of the Bali bombings, the offences were given ‘very limited retrospective operation to commence on 1 October 2002, only 45 days prior to the enactment of the Act’.^[88]

13.73  The Explanatory Memorandum to the Bill explained that retrospective application was justifiable in the circumstances because

the conduct which is being criminalised—causing death or serious injury—is conduct which is universally known to be conduct which is criminal in nature. These types of offences are distinct from regulatory offences which may target conduct not widely perceived as criminal, but the conduct is criminalised to achieve a particular outcome.^[89]

Migration Act s 228B: people smuggling offences

13.74  Sections 233A and 233C of the Migration Act establish a primary people smuggling offence and an aggravated people smuggling offence. Section 233A was introduced in 1999 and s 233C in 2001.^[90]

13.75  Both of these offences are established where another person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry to Australia, of another person who is a non-citizen, and that non-citizen had, or has, ‘no lawful right to come to Australia’.

13.76  The Deterring People Smuggling Act 2011 (Cth) was enacted on 29 November 2011 and inserted s 228B which defined the words ‘no lawful right to come to Australia’, with retroactive effect from 16 December 1999. It was introduced to Parliament at a time when the Victorian Court of Appeal was being asked to consider the meaning of the phrase.

13.77  The Explanatory Memorandum stated that the people smuggling offences ‘have been consistently interpreted since 1999 as applying where a person does not meet the requirements for coming to Australia under domestic law’. The amendments were intended to ‘ensure that the original intent of the Parliament is affirmed’, and

to address doubt that may be raised about convictions that have already been made under sections 233A and 233C of the Migration Act, and previous section 232A of the Migration Act as in force before 1 June 2010.^[91]

13.78  A number of agencies and individuals raised concerns before the Senate Standing Committee on Legal and Constitutional Affairs about the retrospective nature of this provision.^[92] The Human Rights Law Centre  said that this retrospective law is in breach of art 15 of the ICCPR, other human rights instruments, and government policy, and could not (unlike the war crimes legislation) be justified by reference to the seriousness of the offence.^[93] Another submission to the Committee emphasised that it is the function of the courts to interpret legislation, and if that interpretation is not consistent with the ‘existing understanding’ held by the government or prosecutorial agencies, ‘then that understanding is incorrect’.^[94] Adam Fletcher noted:

Unlike the law in question in Polyukhovich, the present Bill does not create any new offence. However, it arguably enlarges an offence retrospectively by removing a potential defence. The law may render an act—namely the unauthorised transportation of asylum-seekers (as opposed to other migrants)—criminal retrospectively and pre-empt findings of the courts in ongoing prosecutions.^[95]

Proceeds of crime

13.79  The Proceeds of Crime Act 2002 (Cth) applies to offences and convictions regardless of whether they occurred before or after the commencement of the Act, with the result that proceeds for forfeiture and recovery of assets may involve consideration of offences that were committed, or are suspected to have been committed, at any time in the past.^[96] The statute is retrospective (but not retroactive).

13.80  The Crimes (Superannuation Benefits) Act 1989 (Cth) and the Australian Federal Police Act 1979 (Cth) pt VA contain similar provisions providing for the forfeiture and recovery of employer funded superannuation benefits of Commonwealth employees who have been convicted of corruption offences and sentenced to more than 12 months imprisonment.

13.81  It has been suggested that proceeds of crime proceedings need to involve consideration of offences that were committed, or are suspected to have been committed, at any time in the past, ‘due to the fact that criminal conduct from which a person may have profited or gained property may continue over several years or may not be discovered immediately’.^[97]

13.82  For example, in determining ‘unexplained wealth amounts’ under the Proceeds of Crime Act,^[98] the amount of wealth a person has is calculated having regard to property owned, effectively controlled, disposed of or consumed by the person, including before the time the law commenced. This is said to be necessary to ensure that

orders are not frustrated by requiring the precise point in time at which certain wealth or property was acquired to be established, as this can be extremely difficult for law enforcement agencies to obtain evidence of and prove.^[99]

13.83  The Explanatory Memorandum for the amending Bill noted that orders under proceeds of crime legislation are ‘civil asset confiscation orders that cannot create any criminal liability, do not result in any finding of criminal guilt and do not expose people to any criminal sanctions’.^[100]

13.84  The Human Rights Committee has argued, however, that the fact that a sanction or proceeding is characterised as civil under Australian law, and has civil rather than criminal consequences, is not determinative of whether a sanction is ‘criminal’ for the purposes of human rights law. In this context, it stated that a ‘punitive and deterrent goal’—as intended by unexplained wealth proceedings—would generally suggest that the measure should be characterised as criminal. ^[101]

Social security law

13.85  A retroactive social security law was passed in response to the decision in Poniatowska v Director of Public Prosecutions (Cth).^[102]Ms Poniatowska was charged with 17 counts of obtaining a financial advantage from the Commonwealth, contrary to s 1325.2 of the Criminal Code. She had failed to declare income from employment to the Department of Human Services while receiving a social security payment. However the Full Court of the Supreme Court of South Australia held that the Social Security (Administration) Act 1999 (Cth) (Administration Act) did not impose any obligation on persons in receipt of social security payments to declare income. Noting the general principle that ‘an omission will attract criminal liability only if the omission is a failure to perform a legal obligation’, the Court set aside the convictions.

13.86  In response to this decision, an amending act inserted s 66A into the Administration Act. This section imposed a duty on social security claimants to inform the Department of a change of circumstances which might affect payments. The amendment received assent on 4 August 2011, and was described as having commenced on 20 March 2000—the date the Administration Act commenced.^[103]

13.87  The Explanatory Memorandum noted that Poniatowska v DPP (Cth) had cast doubt on ‘a large number of past convictions’ for social security fraud.^[104] The intention of Parliament in creating a provision with retrospective application was ‘to ensure that certain criminal convictions … cannot be overturned on the basis that the physical element of the offence, being an omission, was not established’.^[105]

13.88  However, the High Court held that, while s 66A operates with retrospective effect, it does not have the effect of attaching criminal liability to a failure to advise the Department of an event:

A clear statement of legislative intention is required before the courts will find that liability for a serious Commonwealth offence is imposed by means of a statutory fiction.^[106]

Taxation laws

13.89  It is not uncommon for taxation measures to be enacted with retrospective operation. Indeed, budget measures often commence from the date of the budget announcement, rather than the date of enactment. Such legislation does not retrospectively alter the rights and obligations of taxpayers before the date of the announcement—mitigating much of the negative impact that arises from the retrospective application. Indeed, as Fuller noted, taxation legislation is never, strictly speaking, retroactive, because it does not create an obligation to pay tax in the past. Retrospective tax legislation refers to past acts, but imposes an obligation to pay tax in the present.^[107]

13.90  There is wide acceptance that amendments to taxation law may apply retrospectively where the Government has announced, by press release, its intention to introduce such legislation, particularly when the announcement is sufficiently detailed. The situation is common enough for the Australian Taxation Office (ATO) to have issued guidance on its administrative treatment of taxpayers where taxation legislation has retrospective operation.

13.91  One ATO practice note provides that, when legislation has been announced but not yet enacted, taxpayers who exercise reasonable care and follow the existing law will suffer no tax shortfall penalties and nil interest charges up to the date of enactment for the legislative change. Taxpayers will also be given a ‘reasonable time’ to get their affairs in order, post enactment of the measure, without incurring any interest charges.^[108]

13.92  Another practice note provides that, where the ATO changes its view or practices, the Commissioner of Taxation has a general policy of not applying these changed views and practices retrospectively. Typically, retrospective application will only be justified where the ATO has not contributed to the taxpayer adopting a contrary view, where there is fraud or evasion, or where tax avoidance may be involved.^[109] However a taxpayer cannot enforce adherence to a practice statement.^[110]

13.93  The Senate has scrutiny processes intended to minimise periods of retrospectivity. Standing Order 44 provides that where taxation legislation has been announced by press release more than six months before the introduction of the relevant legislation into Parliament (or publication of a draft bill), that legislation will be amended to provide for a commencement date after the date of introduction (or publication).

13.94  In 2004, a Treasury Department review of aspects of income tax self-assessment considered suggestions that Parliament should not pass retrospective tax laws. The review concluded that the commencement date of measures should remain an issue to be ‘examined and determined by Parliament on a measure-by-measure basis’.^[111]

13.95  The review stated that while, ideally, tax measures imposing new obligations should apply prospectively, retrospective commencement dates may be appropriate where a provision:

• corrects an ‘unintended consequence’ of a provision and the ATO or taxpayers have applied the law as intended;

• addresses a tax avoidance issue; or

• might otherwise lead to a significant behavioural change that would create undesirable consequences, for example bringing forward or delaying the acquisition or disposal of assets.^[112]

Bottom of the harbour schemes

13.96  The Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth), which allowed for the recovery of tax avoided under ‘bottom of the harbour’ tax schemes entered into between 1 January 1972 and 4 December 1980,^[113] was highly controversial. It was introduced in response to tax avoidance schemes that the Government described as ‘pre-tax strips of company profits’.^[114] Sampford and Crawford note that the schemes often ‘required links with organised crime and the deliberate flouting of company and tax laws’.^[115]

13.97  When these laws were introduced, the then Treasurer, the Hon John Howard MP, said:

Our normal and general reluctance to introduce legislation having any retrospective element has, on this occasion, been tempered by the competing consideration of overall perceptions as to the equity and fairness of our taxation system and the distribution of the tax burden.^[116]

13.98  The Treasurer also emphasised that the tax to be recovered had been illegally evaded,^[117] and referred to revenue losses of ‘hundreds of millions of dollars’.^[118]

Tax offset for films

13.99  In 2011, the Administrative Appeals Tribunal (AAT) held that Lush House, a television program about household management hosted by ‘domestic guru’ Shannon Lush, was a documentary, and therefore eligible for a tax offset.^[119]

13.100       According to the Government, the definition of ‘documentary’ adopted by the AAT

represents a departure from both the ACMA Guidelines and the long-held understanding of the term in the context of government regulation of, and support for, documentaries.  That has created uncertainty for Government and industry in relation to the film tax offsets.^[120]

13.101       In response, an amendment to the Income Tax Assessment Act 1997 (Cth) was made to alter the definition of ‘documentary’ in s 376-25 and limit the types of films eligible for tax offsets.^[121] The amending Act was assented to on 28 June 2013, but the amendments were stipulated to ‘apply to films that commence principal photography on or after 1 July 2012’.

13.102       The amendments were consistent with the guidelines previously used in offset applications prior to the AAT decision and were seen as restoring an original understanding of the term ‘documentary’ in the taxation context.

Dividend washing

13.103       The Tax and Superannuation Laws Amendment (2014 Measures No 2) Act 2014 (Cth) included provisions intended to close a loophole that allowed sophisticated investors to acquire dividend franking credits disproportionate to their shareholdings, through a process known as ‘dividend washing’. The then Assistant Treasurer, David Bradbury MP, announced the intention to close the loophole on 14 May 2013.^[122] The Act was assented to on 30 June 2014 with application to distributions made on or after 1 July 2013. 

13.104       The retrospective nature of the Bill was justified in the Explanatory Memorandum on the grounds that affected taxpayers would be aware of the change from the date of the announcement and would be unlikely to be affected in an unexpected way. The statement of compatibility with human rights stated that the laws limited ‘the tax benefits that are available in respect of certain financial transactions without any wider impact’.^[123]

13.105       While retrospective legislation may disadvantage individual taxpayers, this may be justified when the overall fairness of taxation laws is considered. The ATO reported that

[w]hile relatively modest amounts of revenue are being lost as a result of this conduct, significant amounts of revenue would be at risk if the practice were to become widespread.^[124]

13.106       The Tax Institute agreed that dividend washing ‘threatens the integrity of the dividend imputation system’.^[125]

Tax avoidance

13.107       In relation to concerns about tax avoidance, the Tax Laws Amendment (Countering Tax Avoidance and Multinational Profit Shifting) Act 2013 (Cth) was enacted on 29 June 2013 with retrospective operation to 16 November 2012—the date on which an exposure draft of the legislation was released.

13.108       The Act inserted new provisions into the Income Tax Assessment Act 1936 (Cth), making changes to the general anti-avoidance provisions of pt IVA, which operate to protect the integrity of the tax law from contrived or artificial arrangements designed to obtain a tax advantage.

13.109       The statement of compatibility with human rights noted that retrospective operation was ‘necessary to ensure that taxpayers are not able to benefit from artificial or contrived tax avoidance schemes entered into in the period between that date and the date of Royal Assent’ and that application from that date does not affect the operation of any criminal law.^[126]

Transfer pricing

13.110       An important example of retrospectivity in taxation law arose in relation to amendments to Australia’s transfer pricing rules. Transfer pricing is the pricing of goods and services provided by one member of a multinational group of companies to another member of the group—for example, the price charged by a parent company for goods purchased by a subsidiary. Transfer pricing creates opportunities for companies to shift profits to lower tax jurisdictions. Australia’s transfer pricing rules ‘seek to ensure that the appropriate return for the contribution made by Australian operations is taxable in Australia for the benefit of the community’.^[127]

13.111       In 1982, transfer pricing rules were introduced into div 13 of the Income Tax Assessment Act 1997 (Cth). They provide that if parties are not dealing with each other at arm’s length with regard to a transfer, consideration equal to arm’s length consideration shall be deemed to have been given.^[128] There was no substantive judicial consideration of these rules until June 2011 when the Full Federal Court decided Commissioner of Taxation v SNF (Australia) Pty Ltd.^[129] In this case, the Commissioner argued that the rules should be interpreted in light of the Organisation for Economic Cooperation and Development’s Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (the OECD Guidelines), but the Court rejected this approach.^[130] 

13.112       Consequently, on 1 November 2011, the Australian Government proposed amendments to confirm that the transfer pricing rules contained in Australia’s tax treaties provide a power, through express incorporation into Australia’s domestic law, to make transfer pricing adjustments independently of div 13. In introducing the legislation, it was explained that this would ‘ensure the Parliament’s view as to the way in which treaty transfer pricing rules operate is effective, that the Australian revenue is not compromised, and that international consistency is maintained with our tax treaty partners’.^[131] Further, the Explanatory Memorandum stated:

There are strong arguments … for concluding that under the current income tax law, treaty transfer pricing rules apply alternatively to Division 13. If this is the case, these amendments constitute a mere rewrite of those rules. To the extent that some deficiency exists in the current law, these amendments ensure the law can operate as the Parliament intended.^[132]

13.113       The amending act commenced on the date of assent, but the provisions apply to income years starting on or after 1 July 2004.^[133] The Explanatory Memorandum observed that the introduction of retrospective taxation is not done lightly and generally only ‘where there is a significant risk to revenue that is inconsistent with the Parliament’s intention’. The arguments for retrospective operation were set out at length in the Explanatory Memorandum. Emphasis is placed on evidence that, since 1982, Parliament has assumed that treaty pricing rules are available as an alternative to div 13, and the Commissioner has also publicly maintained this view.

13.114       This analysis has been criticised. The Law Council, for example, submitted to the Senate Economics Legislation Committee that the provisions of the Bill cannot be regarded as merely ‘clarifying’ the law:

To the contrary, the Bill introduces a new test for interpretation. This test requires taxpayers and the Court to read relevant provisions of the tax treaties ‘consistently’ with OECD guidance, fundamentally changing the interpretation and application of the law.^[134]

13.115       In a submission to this ALRC Inquiry, the Law Council argued that these retrospective laws were not justified for two reasons. First, it could not be said that the amendments merely restored a prior understanding of the law, as differing views and questions had been raised by the courts. Secondly, there was no evidence of avoidance behaviour.^[135]

13.116       There may be significant public interest reasons for these laws—for example, to allow the Commissioner to re-examine past transfer pricing transactions, in light of overseas examples of unacceptable abuse of corporate tax arrangements.^[136] Any disadvantage to taxpayers needs to be balanced against concerns about protection of public revenue and the extent to which major multinational companies are contributing tax in Australia—a matter of concern to Australian governments and the current Senate inquiry into corporate tax avoidance.^[137]

Concerns about retrospective taxation laws

13.117       Concerns about the scope of retrospective taxation laws have been widely expressed. For example, in 2012, the Tax Institute made a submission to Treasury in which it noted an ‘extremely concerning trend in recent months of the Government announcing retrospective changes to the tax law’. It stated that

[c]hanges to reverse consolidation tax laws were preceded by amendments to the Petroleum Resource Rent Tax backdated to 1990; and an overhaul of transfer pricing laws, with effect from 2004. More recently, amendments to the general anti-avoidance law in Part IVA, were announced to apply from the date of announcement in March 2012, despite the community not knowing the detail of those changes and most likely not being able to know the detail for some months hence.^[138]

13.118       The Tax Institute warned that retrospective changes in tax law are likely to ‘interfere with bargains struck between taxpayers who have made every effort to comply with the prevailing law at the time of their agreement’.^[139] Similar concerns were expressed in the Institute’s submission to this ALRC Inquiry.^[140]

13.119       The Tax Institute accepted that retrospective tax laws are justified in the case of

(a) concessional announcements, where it is proposed that a person should have a benefit from a given date but the legislative programme does not allow for immediate enactment; and

(b) strengthening of tax laws, where an issue has come to the attention of the Commissioner requiring prompt attention (subject again to the legislative programme).^[141]

13.120       The Tax Institute stressed that once an announcement has been made, legislation should be introduced promptly.

Migration laws

13.121       Laws with retrospective operation are not uncommon in migration law. As noted in Chapter 2, the enjoyment of common law rights and freedoms is not confined to Australian citizens, and a non-citizen in Australia is entitled to the same protection of the law as a citizen.^[142] It follows that the presumption against retrospective operation of law would apply to laws affecting non-citizens, but of course that presumption can be rebutted by plain words in the statute. Similarly, retrospective laws affecting non-citizens require appropriate justification, as do those affecting citizens. As noted above, the burden of justification for a retrospective civil law is not as high as for criminal laws. In considering whether a retrospective law is justified, the proportionality principle may be relevant—that is, laws should have a legitimate objective, and the means chosen to achieve that objective should be rationally connected with that objective.^[143] Thus, a retrospective law is more likely to be justified if its retrospective nature is necessary to achieve its objective.

13.122       Two retrospective migration laws have been identified by stakeholders as raising concerns.

Migration Act s 45AA: unauthorised maritime arrivals

13.123       Migration Act s 45AA allows an application for one type of visa to be considered as an application for a different type of visa, as specified by regulations.^[144] It was inserted by sch 6 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Regulation 2.08F was then inserted into the Migration Regulations 1994 (Cth) to convert all protection visas into temporary protection visas.^[145] The amendment changes rights and obligations retroactively in that an existing application is taken to have never been a valid application for a permanent protection visa, and always to have been an application for a temporary protection visa.^[146]

13.124       The Explanatory Memorandum to the amending Bill indicated that the measures were intended to ‘make it clear that there will not be permanent protection for those who travel to Australia illegally’. It also said the ‘intention is that those who are found to be in need of protection … will be eligible only for grant of temporary protection visas’.^[147]

13.125       The Explanatory Statement to the regulation emphasised that it was intended to remove the incentive to undertake a dangerous journey:

The conversion of unfinalised PPV applications made by unauthorised arrivals into TPV applications is one of the many key measures for implementing the government’s policy in combating people smuggling.  The conversion ensures that applicants who are found to engage Australia’s protection obligations will only be granted a TPV instead of a PPV, thereby removing an incentive for asylum seekers to use irregular channels including dangerous journey to Australia by sea to seek protection.^[148]

13.126       Stakeholders commented critically on the effect of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act on protection visa applications.^[149] For example, the Refugee Council of Australia claimed that, as a result of these provisions,

thousands of asylum seekers who arrived in Australia without valid visas and whose protections claims have not yet been finally determined are now no longer eligible for permanent Protection Visas. If they are found to be refugees, they will have far fewer rights than was previously the case …^[150]

13.127       The Refugee Council submitted that retrospective reintroduction of temporary protection is unjustified:

The Australian Government maintains that Temporary Protection Visas act as a deterrent to unauthorised arrival. If the Government believes this to be the case, it makes little sense to apply these changes to people who could not possibly have known that they would be eligible for temporary protection only should they arrive without a visa and thus could not possibly have been deterred from seeking to arrive in an authorised manner.^[151]

13.128       The Refugee Advice and Casework Service (RACS) also expressed concern about s 45AA of the Migration Act. RACS considered that these changes destabilised an administrative framework that should be certain, predictable and impartial.^[152] Similarly, the Human Rights Law Centre stated that:

The justification offered by the Government, namely to deter asylum seekers from coming, does not justify retrospectively offering an inferior form of protection to those already here.^[153]

13.129       The Australian National University Migration Law Program observed that the provisions converting visa applications are ‘an attempt to give effect to the government’s policy that no unauthorized maritime arrival will be granted a permanent protection visa’. It submitted that:

This policy position is an inadequate justification for retrospectively removing the accrued rights of those who applied for a permanent protection visa. The retrospective nature of the provision will mean that those found to be genuine refugees [will be] on rolling temporary protection visas, which in our view, may give rise to breaches of fundamental rights, including the right to freedom of movement.^[154]

Migration Act ss 500A(3)(d), 501(6)(aa): the character test

13.130       These sections were inserted by sch 1 of the Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 (Cth). They provide that the Minister may refuse to grant, or may cancel, a person’s safe haven visa on the grounds that the person committed an offence while in immigration detention, while escaping from immigration detention or when having escaped from immigration detention. They also provide that a person does not pass the character test if the person has been convicted of an offence.

13.131       The amending Act received assent on 25 July 2011, and was stated to commence on 26 April 2011 (the date of the announcement of the intention to make the changes). However the changed powers apply regardless of whether the conviction or immigration detention offence concerned occurred before, on or after 26 April 2011.

13.132       The Explanatory Memorandum explained that, on 26 April 2011, the Minister’s announcement ‘put all immigration detainees on notice that the Australian government takes criminal behaviour very seriously and will take appropriate measures to respond to it’.^[155]

13.133       The Law Council submitted that these measures may not be justified in that they impose a penalty—liability to have one’s visa application refused—for an offence that may have occurred before the legislation commenced.^[156] As noted above, there is a question over whether laws that change the present consequences of past acts can be correctly called retrospective.

Other laws

Native title law

13.134       The Native Title Act 1993 (Cth) includes provisions that validate past acts that extinguished native title. These provisions are retroactive because they provide that certain acts are valid and are ‘taken always to have been valid’.^[157]

13.135       These provisions were a response to Mabo v Queensland [No 2], which is an example of a judicial decision that unsettled existing understandings of the law, with extensive retrospective effect.^[158] By making clear that the common law recognises native title, Mabo [No 2] cast doubt on land tenures that had been granted since the passage of the Racial Discrimination Act 1975 (Cth). Grants that purported to extinguish native title may have been invalid because of their inconsistency with the Racial Discrimination Act. They may also have been invalid because they were acquisitions of property other than on just terms, as required by s 51(xxxi) of the Constitution. The Native Title Act validated, or allowed states and territories to validate, certain acts that took place before the commencement of the Act on 1 January 1994, and would otherwise be invalid because of native title.^[159]

Validating acts

13.136       Legislation with retroactive operation may be enacted to validate decisions that have been made, or powers exercised, by government agencies, the validity of which is in doubt. In Statutory Interpretation in Australia, Pearce and Geddes note that such statutes ‘clearly must operate retrospectively and from their very nature refute the applicability of the presumption against retrospectivity’.^[160]

13.137       One example is the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015 (Cth). Schedule 5 validates access by the Australian Federal Police to certain investigatory powers in designated state airports. The stated aim of the legislation was to ‘ensure continuity in policing services at Australia’s major airports, required as a result of an administrative error that led to certain investigatory powers not being available to AFP and special members in those airports for a short period of time’.^[161] The Senate Scrutiny of Bills Committee expressed concerns about this amendment. It noted that coercive powers are only available if expressly authorised by statute, and retrospective validation of such powers should only occur in ‘exceptional circumstances where a compelling need can be demonstrated’. The Committee did not consider that such exceptional circumstances had been demonstrated.^[162]

13.138       A second example is the Environment Legislation Amendment Act 2013 (Cth) which retrospectively validated decisions that were made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). This amendment followed a Federal Court finding that the Minister’s decision to approve a mine was invalid, because it was made in breach of s 139(2) of the EPBC Act, which required the Minister to consider certain conservation advice.^[163] The Explanatory Memorandum indicated that the amendment was ‘to address the implications arising from the Tarkine case’ and would ‘apply retrospectively and prospectively to provide certainty for past and future decisions’.^[164]

Powers to make subordinate legislation

13.139       Subordinate legislation with retrospective operation may be more difficult to justify as these instruments are less visible to the public. Unless the enabling Act specifies to the contrary, a legislative instrument has no effect if it has retrospective operation and, as a result, disadvantages or imposes liabilities on a person.^[165] A range of statutes specifically allow for legislative instruments to have effect before the date on which they are registered:

• Customs Tariff Act 1995 (Cth) s 16A(5), concerning special safeguards for goods originating from Thailand;

• Excise Tariff Act 1921 (Cth) s 6CA(1D), (5), concerning excise duties on condensate;

• Income Tax Assessment Act 1997 (Cth) s 293-115, concerning defined benefit contributions, and s 293-145, concerning constitutionally protected superannuation funds;

• Liquid Fuel Emergency Act 1984 (Cth) ss 9(2), 10(5), 11(6), 12(7), 13(4), 14(5), 14A(5), 17(6), 20(6), 21(5), 21(8), 22(8), 23(8), 24(8), concerning Ministerial directions and determinations regarding fuel emergencies;

• Migration Act 1958 (Cth) s 198AB, concerning the designation of a regional processing country;

• National Rental Affordability Scheme Act 2008 (Cth) s 12, concerning the operation of the scheme;

• Petroleum Excise (Prices) Act 1987 (Cth) s 4(1C), concerning excise on condensate;

• Superannuation Act 1990 (Cth) s 5A, concerning amendments of trust deeds to implement family law interest splitting, and s 45(6), concerning ministerial amendment of trust deed;

• Taxation Administration Act 1953 (Cth) s 133-130, concerning superannuation end benefits; and

• Veterans’ Entitlements Act 1986 (Cth) s 29(11), concerning assessment of rates of veterans’ pensions 45TO(1A), concerning members of pension bonus schemes, and  s 196B(13) concerning the functions of the Repatriation Medical Authority.

13.140       The ALRC has not sought to establish the extent to which these regulation-making powers have actually been exercised in a retrospective manner.

Judicial clarification of uncertain laws

13.141       Professor Jeremy Gans observed that the requirement that laws be sufficiently clear is breached when the scope of an offence is unclear until it has been interpreted by the courts. He gave the example of the offence of ‘market manipulation’ in the Corporations Act 2001 (Cth), which prohibits actions that create or maintain an ‘artificial price’ in financial products’.^[166] This offence came into effect on 11 March 2002, but its scope was not defined until it was considered by the High Court in 2013.^[167] Professor Gans suggested that the ALRC should consider whether ‘current criminal offences are sufficiently certain, precise and accessible to give a reasonably informed lay person fair warning of what conduct is prohibited’.^[168]

13.142       The Law Council raised a related concern about statutes with key terms that are not defined, so that ‘business is unable to gauge the compliance burden and feasibility until after the legislation has commenced’.^[169]

13.143       The clarification by the courts of an uncertain law necessarily imports an element of retrospectivity. Indeed, all judicial decisions about common law, constitutional matters or statutory interpretation are essentially retrospective.^[170] In PGA v The Queen, Heydon J said that to ‘the extent that they may be changed retrospectively, uncertainty is inherent in common law rules’.^[171] Fuller considers that the argument that judicial decisions should be retrospective is very strong.^[172]

13.144       The courts do not state what the law is from the date of a decision, but declare the law as it has always been. Where this declaration is in conflict with the previous understanding, this may be used to justify a statute that reinstates the previous understanding with retrospective effect, as is discussed above with regard to taxation. However there are practical difficulties in reviewing laws on the basis that they are uncertain and require statutory interpretation. This chapter focuses on Commonwealth laws with declared retrospective operation, rather than those that may require clarification.