Justifications for encroachments

7.18       Are retrospective laws necessarily unjust? In George Hudson Limited v Australian Timber Workers’ Union (1923) Isaacs J quoted the principle in Maxwell on Statutes, 6th ed, that ‘Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation’ and 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.’[31]

7.19       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’.[32] 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?

7.20       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. However, art 15(2) itself contains one specific limitation:

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.

7.21       Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.[33]

7.22       Some Australian laws that operate retrospectively may be justified. The ALRC invites submissions identifying those that are not justified, and explaining why they are not justified.