A common law principle

Criminal law

13.11  The common law’s disapproval of retrospective criminal laws has deep roots and a long history.

13.12  In Leviathan, Thomas Hobbes wrote that ‘harm inflicted for a fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before the law, there is no transgression of the law’.[4] William Blackstone wrote in his Commentaries on the Laws of England:

[h]ere it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement.[5]

13.13  This approach has become part of the common law of Australia. In Polyukhovich, Deane J said:

The basic tenet of our penal jurisprudence is that every citizen is ‘ruled by the law, and by the law alone’. The citizen ‘may with us be punished for a breach of law, but he can be punished for nothing else’. Thus, more than two hundred years ago, Blackstone taught  that it is of the nature of law that it be ‘a rule prescribed’ and that, in the criminal area, an enactment which proscribes otherwise lawful conduct as criminal will not be such a rule unless it applies only to future conduct.[6]

13.14  In PGA v R, Bell J indicated that the rule of law was an important rationale for the common law’s disapproval of retroactive criminal offences.

The rule of law holds that a person may be punished for a breach of the law and for nothing else. It is abhorrent to impose criminal liability on a person for an act or omission which, at the time it was done or omitted to be done, did not subject the person to criminal punishment. Underlying the principle is the idea that the law should be known and accessible, so that those who are subject to it may conduct themselves with a view to avoiding criminal punishment if they choose.[7]

13.15  Retrospective criminal laws are commonly considered inconsistent with the rule of law, which requires all members to be subject to publicly disclosed laws. In The Rule of Law, Lord Bingham wrote:

Difficult questions can sometimes arise on the retrospective effect of new statutes, but on this point the law is and has long been clear: you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence.[8]

13.16  In Director of Public Prosecutions (Cth) v Keating, the High Court of Australia emphasised the common law principle that the criminal law ‘should be certain and its reach ascertainable by those who are subject to it’.[9] This idea is ‘fundamental to criminal responsibility’ and ‘underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability’.[10]

13.17  In Polyukhovich v Commonwealth (Polyukhovich), Toohey J said:

All these general objections to retroactively applied criminal liability have their source in a fundamental notion of justice and fairness. They refer to the desire to ensure that individuals are reasonably free to maintain control of their lives by choosing to avoid conduct which will attract criminal sanction; a choice made impossible if conduct is assessed by rules made in the future.[11]

Civil law

13.18  The common law does not condemn retrospective civil laws with the vigour reserved for retrospective criminal laws. Perhaps the strongest statement of the principle is found in Maxwell on Statutes, as cited by Isaacs J in the High Court in 1923:

Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation.[12]

13.19  However Isaacs J went on to say that, when the whole circumstances are considered, a retrospective law may be ‘absolutely just’.[13]

13.20  Dixon CJ’s formulation is often cited, but it is a statement of the common law’s approach to statutory interpretation, rather than a statement of disapproval:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[14]

13.21  In Polyukhovich, Dawson J indicated that retrospective civil laws do not raise the same concerns as retrospective criminal laws:

Ex post facto laws may be either civil or criminal, but the description is frequently used to refer only to criminal laws, perhaps because the creation of crimes ex post facto is, for good reason, generally considered a great deal more objectionable than retrospective civil legislation … [15]

13.22  He also noted that the ‘resistance of the law to retrospectivity’ is found in the presumption against retrospective operation of civil laws, but that ‘justice may lay almost wholly upon the side of giving remedial legislation a retrospective operation’, in which case the presumption must ‘at best, be a weak presumption’.[16]

13.23  Retrospective civil laws are looked upon with disfavour by some legal commentators. Friedrich Hayek said that the rule of law means that

the government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s affairs on the basis of this knowledge.[17]

13.24  As French CJ, Crennan and Kiefel JJ noted, rule of law principles underpin the common law presumption against retrospective operation of a statute:

In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality … [18]

13.25  Concerns have been raised about the efficacy of retrospective civil laws. If a person does not know or is uncertain about the law, it is difficult for the person to comply with it. The law does not, in this circumstance, guide behaviour. As the Law Council of Australia (Law Council) submitted:

If such laws cannot be known ahead of time, individuals and businesses may not be able to arrange their affairs to comply with them. It potentially exposes individuals and businesses to sanctions for non-compliance and despite the high societal cost, such retrospective laws cannot guide action and so are unlikely to achieve their ‘behaviour modification’ policy objectives in any event.[19]

13.26  Similarly, the Tax Institute emphasised that laws need to be certain and prospective for the proper functioning of the tax system, particularly to allow:

(a) taxpayers to self-regulate behaviour in order to minimise tax risk;

(b) the fostering of voluntary and informed compliance with tax laws;

(c) taxpayers to make investment decisions and strike commercial bargains with certainty as to the tax cost resulting from the relevant transaction;

(d) corporate taxpayers to make informed dividend policy decisions; and

(e) listed companies to produce timely financial statements that accurately reflect their tax expense.[20]

13.27  The Law Council observed that retrospective laws can cause a ‘number of practical difficulties for business, and the wider economy’, including: actual and reputational damage to the market (sovereign risk); disruption to business planning processes resulting in high compliance costs; and unintended consequences from increased regulatory complexity.[21]

13.28  In relation to commercial and corporate laws, the Law Council stated that it is possible for laws to be ‘effectively retrospective’. That is, where laws are introduced so abruptly that they do not give businesses sufficient time to adjust their practices; or capture activities that will occur after the law has commenced but which are the result of arrangements entered into before the law commenced.[22]

Retrospective or retroactive?

13.29  A useful distinction may be made between retrospective and retroactive laws. The High Court has noted that retrospectivity is ‘a word that is not always used with the constant meaning’.[23] Associate Professor Andrew Palmer and Professor Charles Sampford note that ‘a range of definitions is on offer’.[24] This Inquiry uses Professor Elmer Driedger’s distinction:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted.[25]

13.30  For example, the Criminal Code Amendment (Offences Against Australians) Act 2002 (Cth) created an offence of causing the death of an Australian overseas. It was assented to on 14 November 2002, but commenced on 1 October 2002.[26] It was retroactive, because it operates before the date of assent, although only for 45 days. 

13.31  The Native Title Act 1993 (Cth) is an example of a retroactive civil law. It commenced on 1 July 1994, but validated certain ‘past acts’ that occurred before that date and may have been invalid because of native title.[27] Section 14 provides that the past act is ‘valid, and is taken always to have been valid’.

13.32  According to Driedger, retrospective (but not retroactive) laws change present legal rights and obligations with reference to past events or statuses. For example, a law that changes the maximum penalty, or non-parole period, for a crime that occurred in the past is retrospective, because it refers to a past event, but not retroactive, because the sentencing takes place in the present.[28] This definition is not universally accepted. For example, Pearce and Geddes, authors of Statutory Interpretation in Australia, consider that a law is only retrospective ‘if it provides that rights and obligations are changed with effect prior to the commencement of the legislation’.[29] On this approach, retrospective is synonymous with retroactive. This approach to the definition is certainly well founded, as the High Court has said that ‘interference with existing rights does not make a statute retrospective’.[30]

13.33  Laws that introduce legal consequences based on a person’s history are retrospective (in Driedger’s sense), but not retroactive. Re a Solicitor’s clerk concerned a law that allowed an order to be made prohibiting a person convicted of larceny from being employed as a solicitor’s clerk. The Lord Chief Justice held that the law was not retrospective as the prohibition was for the future only, even though it allowed the prohibition of a person because of a larceny conviction prior to the commencement of the law.[31] Such an approach has been taken in Australia, with the Victorian Supreme Court noting that where a statute relies upon past history as an indicator of present fitness, then the presumption against retrospectivity has no application.[32] However, it has been argued that laws that impose civil deprivations based on past behaviour—for example, the exclusion of communists from labour organisations—amounts to the infliction of punishment without a trial, thus eliding the civil-criminal distinction.[33]

13.34  The Senate Standing Committee on the Scrutiny of Bills (Scrutiny of Bills Committee) considers that a law has ‘retrospective effect when it makes a law applicable to an act or omission that took place before the legislation was enacted’—it is concerned with both retroactive and retrospective laws.[34] This chapter uses ‘retrospective’ to refer generally to both types of laws, and ‘retroactive’ to refer specifically to a law that takes effect at a time prior to its enactment.

[4]             Thomas Hobbes, Leviathan, (Oxford University Press, first published 1651, 1996 ed) 207.

[5]             William Blackstone, Commentaries on the Laws of England, (Clarendon Press reprinted by Legal Classics Library, first published 1765–1769, 1983 ed) vol 1, Introduction, section 2, 46.

[6]             Polyukhovich v Commonwealth (1991) 172 CLR 501, [27].

[7]             PGA v The Queen (2012) 245 CLR 355, 245.

[8]             Tom Bingham, The Rule of Law (Penguin UK, 2011). The analogous principle regarding increased punishment is embodied in the ICCPR art 15(1), and in Crimes Act 1914 (Cth) s 4F. It has not been addressed in this chapter, as the Terms of Reference direct the Inquiry to consider the creation of offences with retrospective application.   

[9]             DPP (Cth) v Keating (2013) 248 CLR 459, 479 [48] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[10]           Ibid [48].

[11]           Polyukhovich v Commonwealth (1991) 172 CLR 501, 608 (Toohey J).

[12]           George Hudson Limited v Australian Timber Workers’ Union (1923) 32 CLR 413, 434.

[13]           George Hudson Limited v Australian Timber Workers’ Union (1923) 32 CLR 413. Justifications for retrospective laws are discussed further below.

[14]           Maxwell v Murphy (1957) 96 CLR 261, 637–8. See also Coleman v Shell Co of Australia Ltd 45 SR NSW 27, 30.

[15]           Polyukhovich v Commonwealth (1991) 172 CLR 501, 642.

[16]           Ibid 642–3.

[17]           Friedrich Hayek, The Road to Serfdom (1944). See also HLA Hart, The Concept of Law (Clarendon Press, 2nd ed, 1994).

[18]           Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, [30].

[19]           Law Council of Australia, Submission 75.

[20]           The Tax Institute, Submission 68.

[21]           Law Council of Australia, Submission 75.

[22]           Ibid.

[23]           Chang v Laidley Shire Council 234 CLR 1, [111].

[24]           Andrew Palmer and Charles Sampford, ‘Retrospective Legislation in Australia—Looking Back at the 1980s’ (1994) 22 Federal Law Review 217, 220; Jeremy Waldron, ‘Retroactive Law: How Dodgy Was Duynhoven?’ (2004) 10 Otago Law Review 631, 632.

[25]           EA Driedger, ‘Statutes: Retroactive Retrospective Reflections’ (1978) 56 Canadian Bar Review 264, 268–269.

[26]           The amendment was introduced in response to the Bali Bombings which occurred on 12 October: Department of Parliamentary Services (Cth), Bills Digest, No 67 of 2002–03, 25 November 2002.

[27]           After 1975, grants of land that were incompatible with native title rights may have been invalid because of the Racial Discrimination Act 1975 (Cth). See further Ch 18.

[28]           Waldron, above n 24, 634.

[29]           DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [10.3] relying on Dixon J in Maxwell v Murphy (1957) 96 CLR 261.

[30]           Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, [26].

[31]           Re a Solicitor’s Clerk [1957] 1 WLR 1219.

[32]           Nicholas v Commissioner for Corporate Affairs [1987] 1988 VR 289.

[33]           Suri Ratnapala, ‘Reason and Reach of the Objection to Ex Post Facto Law’ [2007] The Indian Journal of Constitutional Law 140, 157.

[34]           Senate Standing Committee on Scrutiny of Bills, ‘The Work of the Committee in 2014’ (Parliament of Australia) 39.