13.1     At common law, a statute will be presumed not to have retrospective operation. In the case of criminal laws, this presumption is based on a firm disapproval of laws that impose a penalty for an action that was lawful when it was done. Such laws make it difficult or impossible for individuals to choose to avoid conduct that will attract criminal sanction.

13.2     In the case of civil laws, there is a presumption that a civil law is not intended to have retrospective operation. However the common law does not condemn retrospective civil laws with the vigour reserved for retrospective criminal laws.

13.3     This chapter discusses concerns about laws with retrospective or retroactive operation. It identifies retrospective laws in a wide range of areas, including criminal, taxation, and migration laws, and the justifications that have been put forward for those laws.

13.4     Retrospective criminal laws may be justified where the law in question prohibits behaviour that could never have been considered innocent, legitimate or moral. The Australian Parliament has rarely made retrospective criminal laws, and those that have been made—including legislation prohibiting war crimes, hoaxes using the postal service, and offences against Australians overseas—would largely fall within this justification.

13.5     Retrospective civil laws—that is, those that retrospectively change rights and obligations—are reasonably common. Retrospective civil laws may create uncertainty for individuals and may disappoint legitimate expectations. Where they operate retrospectively only from the date of a government announcement of an intention to legislate, they do not generally disappoint legitimate expectations. They are not an effective way of deterring behaviour, but they may have other objectives, such as restoring a previous understanding of the law that has been unsettled by a court, validating decisions that have been found to be invalid, or protecting public revenue. Retrospective laws may also operate to extend a benefit to an individual who would not otherwise have been entitled to it.

13.6     Taxation law provides numerous examples of laws with retrospective operation. Taxation measures are often enacted with some retrospective operation and it is a ‘constant fact that a change to tax law is announced and applied to transactions that took place before the relevant legislation commences’.[1] There is widespread acceptance of retrospective taxation laws that commence from the date of the announcement, where the period of retrospectivity is short and the announcement is clear.

13.7     However, laws with a significant period of retrospectivity may be harder to justify. For example, the Tax Laws Amendment (Cross-Border Transfer Pricing) Act (No 1) 2012 (Cth) made changes to the Income Tax Assessment Act 1997 (Cth) with retrospective operation from 1 July 2004. The extent to which these changes merely confirmed previous understandings of the law, or introduce a new test, is contested. They were said to be necessary to avoid ‘a significant risk to revenue’.[2] Taxation laws that provide for lengthy periods of retrospectivity might be reviewed to ensure that their retrospective nature has been adequately justified.

13.8     There are concerns that the retrospective operation of some of Australia’s migration laws has not been sufficiently justified. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) inserted reg 2.08F into the Migration Regulations 1994 (Cth). Reg 2.08Fconverted all applications for protection visas into applications for temporary protection visas. The regulation commenced on 16 December 2014 and applied to visa applications made before that date. This change had very significant consequences for the people affected. The regulation was said to remove ‘an incentive for asylum seekers to use irregular channels including dangerous journeys to Australia by sea’. It is not clear that retrospective operation is necessary to achieve the objectives of the legislation.

13.9     There have been people smuggling offences in the Migration Act 1958 (Cth) since 1999.  In 2011, there was a question before the courts as to whether an asylum-seeker had a ‘lawful right to come to Australia’—if this was the case, then it would not be an offence to assist that person. The Deterring People Smuggling Act 2011 (Cth) amended the people smuggling offences with retrospective effect, so that it had always been an offence to assist the entry of an asylum-seeker into Australia. The amendment may have retrospectively enlarged the scope of the criminal offence, criminalising behaviour that was not unlawful when it occurred. The stated intention of the retrospective aspect of the law was to ‘address doubt that may be raised about convictions that have already been made’.[3]

13.10  The retrospective operation of these migration laws could be considered in the broader review of migration laws discussed in Chapter 1.