Retrospective Laws
Retrospective laws are functional and operative in Australia despite their apparent inconsistency with the Rule of Law and their abrogation of human rights. The Australian Constitution does not prohibit State or Federal Parliaments from enacting laws with retrospective effect. However, there are protections in the Common Law such as the presumption against retrospectivity and the Principle of Legality. Parliamentary scrutiny is also a central practice that safeguards human rights, freedoms and immunities against the enactment of unjustified retrospective laws. The following resource explains the meaning of retrospective effect in law and explores retrospective law examples throughout Australia
Meaning and effect of retrospective laws
Retrospective Laws are laws passed today, that change what was legal or illegal yesterday. In other words, they are made ex post facto – after the fact – to change what people’s rights and responsibilities were in the past.
Changing the legal status of certain actions that occurred in the past is seen as contrary to the Rule of Law. If the criminality of certain actions or activities is subject to change (i.e., they are legal at the time but later become illegal), people cannot, with certainty, act in accordance with the law.
Retrospectivity in Australia
International Perspective
Common Law Perspective
Retrospective Pandemic Laws
Retrospectivity and the Rule of Law
The power to enact retrospective legislation seems inconsistent with key principles of the Rule of Law; specifically, that people can only be punished in accordance with the law and that the law should be known and accessible.
AV Dicey wrote in the nineteenth century that under the Rule of Law:
“No man is punishable or can be lawfully made to suffer in body or goods, except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. In this sense, the Rule of Law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.”
Under the Rule of Law, people can only be punished for a breach of the law and for nothing else.
In PGA v R, Bell J wrote that:
“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.”
The Rule of Law also requires that it be known and accessible to all so that everyone can comply.
Individuals must be free to choose to conduct themselves and order their affairs in a way that is consistent with the stipulations of the law and should expect, with confidence, that those choices will not attract criminal punishment.
As is the case with retrospective laws, however, they are an oxymoron because a person cannot know and comply with a law that does not yet exist.
Retrospective laws breach the expectations of citizens that they hold based on the existing state of the law. Without appropriate checks and balances, retrospective laws subvert the effectiveness of legislation in two key areas.
Firstly, they are unable to guide behaviour because the new law, targeting a particular act did not exist at the time the act was taken. Where such laws are vague, ambiguous or arbitrary it is difficult for citizens to confidently plan their affairs and know with certainty what is lawful and what is not.
Secondly, it establishes an unhelpful precedent that fuels doubt and suspicion, and erodes public confidence in the integrity and reliability of legislation in general. If citizens recognise that all laws may be changed with retrospective operation, then they will be more likely to reject the authority of the law to guide their behaviour as it presently exists, or they will be unwilling to incur liabilities or take actions that may in the future be deemed unlawful.
Retrospectivity in Australia
Checks and balances
Whilst retrospectivity means laws are incapable of being known and complied with, the enactment of retrospective legislation is not completely unheard of in Australia. Indeed, Parliament can and has enacted retrospective laws and the judiciary has, in many cases, upheld the validity of them.
Notably, the Australian Constitution, unlike some other jurisdictions, does not expressly or impliedly prohibit the construction or application of retrospective laws by State or Federal Parliaments.
The absence of a limiting or protection clause in the Constitution does not, however, grant the Parliaments an arbitrary and unlimited power to enact retrospective laws. There are common law protections regarding retrospective legislation and the right to rely upon laws that are both established and known.
Common Law: Presumption against Retrospectivity
Australian courts generally apply a presumption against retrospectivity; however, as the case law illustrates below, it is also accepted by the courts that both State and Commonwealth Parliaments have the authority to enact retrospective laws.
There are a two qualifications and checks that the Legislature needs to employ for these retrospective laws to be valid and upheld – the principle of legality and scrutiny by parliament.
Principle of Legality
Firstly, the legislation must abide by the principle of legality, i.e., retrospective intention must be expressed in clear and unambiguous statutory language.
The principle of legality as a protection against the arbitrary application of retrospective laws was affirmed in the case of Australian Education Union v General Manager of Fair Work Australia (2012). In that case, French CJ, Crennan and Kiefel JJ stated that
“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 falsified, retroactively, existing legal rules upon which the 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.”
Parliamentary Scrutiny
Secondly, as with any law enacted by parliament, it must be subject to thorough scrutiny and consideration before it is adopted. To uphold the rights and liabilities of the people and their confidence in these institutions, the Legislature needs to justify the necessity of retrospectivity and illustrate a detailed and transparent scrutiny process prior to its adoption. Representative democracy, responsible government and parliamentary sovereignty should be paramount considerations during this process.
Parliamentary scrutiny ensures those making retrospective laws do so deliberately and are held accountable for such laws. This is important because when governments arbitrarily apply retrospective laws without proper scrutiny or procedure, the people’s trust in their governments break down.
Whilst most of the scrutiny process should happen within parliament, there are several external avenues for review where the law can be scrutinised. This is also an important element of the Rule of Law, specifically, that the law and its administration is subject to open and free criticism. Some of these bodies include the courts, the ombudsman and the Australian Law Reform Commission. 
It should be noted that the presumption against retrospectivity also applies to civil laws, but retrospective civil laws are not scrutinised by the common law with the same intensity given to retrospective criminal laws.
Retrospectivity, Human Rights and International Law
International law protections against retrospectivity
The presumption against retrospectivity is also a rule of international customary law and is summarised by the maxim: nullem crimen sine lage, meaning: no crime without law.
This maxim has been codified in Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR) which proscribes retrospective criminalisation “on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”
Nonetheless, Article 15(2) of the ICCPR, provides an important qualification for the above provision. Article 15(2) states that where the conduct of any person “at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations,” then the application of a retrospective law is valid and can coexist with the Rule of Law.
It should be noted that despite signing and ratifying the ICCPR, Australia has never incorporated Article 15 into domestic law. Given Australia has a dualist approach to international law obligations, the Government is not legally bound by these provisions.
The development of retrospectivity in Australian Common law
The evolution of Australian case law illustrates a steady acceptance to the application and validity of retrospective laws.
R v Kidman [1915] HCA 58
The validity of a retrospective law was first considered in the case of R v Kidman (1915). In that case, Kidman challenged the validity of certain provisions in the Crimes Act 1915 (Cth) under which he was charged and declared guilty of fraud over actions he took in 1914. Kidman’s challenge failed.
The High Court ruled that whilst the Parliament’s power is limited by the Constitution, the Australian Constitution imposes no limitation upon parliaments ability to enact retrospective laws. Interestingly, Higgins J in the obiter dictum of the judgement recognised that retrospective laws are in most cases inexpedient and unjust.
Polyukhovich v Commonwealth [1991] HCA 32
The case of Polyukhovich v Commonwealth presents a more extreme example. That case considered the validity of S 9 of the War Crimes Amendment Act 1988 (Cth). S 9 stipulated that a person who committed a war crime between 1 September 1939 and 8 May 1945 was guilty of an indictable offence. In other words, the Act created a crime out of conduct that occurred nearly 50 years before its passing.
Like Kidman, Polyukhovich contended that the Parliament did not have the power to pass a retrospective law. However, this case failed too. The High Court affirmed the precedent set by Kidman that the Commonwealth can validly enact retrospective laws.
Despite the judiciary’s acceptance of retrospective legislation, Toohey J did acknowledge that “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 that will attract criminal sanction.”
Though the principles of the case still stand, it is important to note that Polyukhovich was acquitted in 1993 due to insufficient evidence.
DPP v Poniatowska (2011) 282 ALR 200
The Full Court of the South Australian Supreme Court originally found that Ms. Poniatowska, who had been accused of welfare fraud, could not be found guilty of having ‘engaged in conduct’ (failing to notify Centrelink of a change in circumstance) if she was not under any legal duty to notify. The case was appealed to the High Court in 2011. However, anticipating that the High Court would affirm the Supreme Court decision, Parliament enacted a law which imposed such a duty. S 66A of the Social Security Administration Act 1999 (Cth) established a legal duty for all welfare recipients to notify Centrelink of any change in circumstance that could affect their welfare payments. The Act stipulated that S 66A was taken to have been in effect from March 2000, thereby retrospectively imposing a legal obligation on welfare recipients.
DPP v Keating [2013] HCA 20
Keating was charged with several offences relating to her alleged failure to inform Centrelink of variations in her income which affected her parenting payment between 2007 and 2009. The prosecution alleged that she had been sent ‘event notices’ requiring her to inform Centrelink about any changes, but she disputed receiving the notices.
In August 2011 (before the High Court’s decision was handed down in Poniatowska that affirmed the full South Australian Supreme Court decision) the social security legislation was amended to make it a requirement to notify Centrelink of changed circumstances. The amendment stated that it applied to any change of circumstance on or after March 2000. This was intended to catch conduct that occurred before August 2011, by retrospectively imposing a legal duty on Centrelink recipients to notify changes.
The High Court’s decision in Keating criticised the amendment as creating a “statutory fiction.” The Court stated that “the failure to do a thing is not an offence in the absence of a legal duty to do the thing” and that the Commonwealth Criminal Code reflects “an idea fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability.”
This is a clear reminder by the High Court of the presumption against retrospectivity and the need for law to be certain and ascertainable, not arbitrarily changed later to patch up a problem.
NuCoal Resources Limited v New South Wales [2015] HCA 13
NuCoal is an Australian mining company where the vast majority of shareholders are ordinary Australians who sought to make an investment through their superannuation funds for their future.
In 2009, NuCoal acquired Doyles Creek Mining for $94million. In 2013, an ICAC investigation into the issuing of the original exploration licence to Doyles Creek (NOT Nucoal) found 5 people had acted corruptly. In response to the ICAC investigation the NSW State Government passed a new law that cancelled NuCoal’s exploration licence, took away their compensation rights and indemnified the state against any corrupt actions its officers and ministers may have engaged in. For more information go to: https://nucoal.com.au/justice/
In doing so, NuCoal’s shareholders suffered a loss of $250-400 million dollars despite being an innocent party acting fully within the law. Under the normal laws, the Mining Act contains set procedures for instances where the Government is concerned about the way an exploration licence has been granted or operated. In particular, there is a precedent to address the compensation that should be paid which has been applied in recent years by the NSW Liberal Government. Instead, following ICAC suggestions, the State government bypassed the normal laws and procedures and introduced a new law that took away NuCoal’s assets without any consideration or compensation and indemnified the State.
Scrutiny of laws for compatibility with rights and principles is an essential role of those in Parliament. Generally, to enable scrutiny, the legislative process includes three readings and consideration of the bills in both houses of Parliament. However, at the time of NuCoal, the Parliament was also scrutinising and passing the NSW one-punch laws. It is argued, not only by NuCoal, but also by leading academics and legal experts, that inadequate scrutiny was given to the Mining Amendment Act and that it was overlooked in favour of the bigger social issue at the time.
Duncan v ICAC [2015] HCA 32
In this case, Duncan sought to challenge the validity of the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (Validation Act). The Act had been used to retrospectively validate an ICAC finding of corruption against Duncan that had previously been declared invalid earlier in the year by the High Court in ICAC v Cunneen [2015] (Cunneen).
In Cunneen, the High Court held that ICAC lacked the investigative jurisdiction to make findings of corruption where the conduct only impacted the efficacy of public administration. Corruption findings could only be made against conduct that affected the probity of these functions.
The Report’s findings against Duncan did not mention or imply that his conduct had impacted the probity. Thus, the effect of the Court’s judgement in Cunneen was that ICAC had acted beyond its powers – ultra vires. In other words, the High Court had effectively, though unofficially, invalidated the finding of corruption against Duncan.
Duncan thus appealed against the report’s finding of corruption. However, before the appeal’s resolution, the NSW Parliament enacted the Validation Act. The Validation Act was designed to retrospectively validate any investigation prior to the Cunneen decision, which had been invalidated by the narrower definition of corrupt conduct. The Act effectively expanded the definition of corrupt conduct for those past investigations to include conduct that negatively affects the efficacy (but not the probity) of the exercise of official functions.
Duncan then changed his appeal to argue that the Validation Act was invalid, however, the High Court dismissed this argument. The decision in Duncan v ICAC solidified the validity of the Validation Act because of the clear legislative intent expressed by Parliament.
Tax laws
In Australia, taxation laws are often changed with retrospective application. Whilst there is general acceptance of this fact, concerns about its scope and principles have also been raised.
In a report by the Australian Law Reform Commission (ALRC), they noted a submission made by the Tax Institute which discussed the “extremely concerning trend in recent months of the Government announcing retrospective changes to the tax law.” The submissions continued by highlighting that the consistent implementation and operation of retrospective laws “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.”
Nonetheless, these concerns may be mitigated, and justified by the Rule of Law because, for example, they are typically only backdated to the date of an announcement by the Government that the law will be created in the future. As a result, potential perpetrators are put on notice in time to change their behaviour. Some argue that this satisfies the principle that the law must be known and accessible, but that is arguable if the announcement is not clear or is ambiguous.
Human Rights Laws and the Protection against Retrospective Laws
Although there is currently no Australian Bill of Rights or Human Rights Act, some states within Australia have adopted their own Human Rights legislation.
In Victoria, The Charter of Human Rights and Responsibilities Act 2006 was passed to protect the rights, freedoms and responsibilities of Victorians by requiring public authorities to act consistently with the Rights outlined in the Charter.
Section 27 of the Charter states:
(1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.
(2) A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.
(3) If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, that person is eligible for the reduced penalty.
(4) Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.
As outlined on the Human Rights Victoria Website, “If you think your human rights have been breached, you should contact the Victorian Ombudsman.”
Complaints to Ombudsman regarding Victorian Pandemic Laws (2021)
In response to COVID-19, the Victorian government issued Border Crossing Permits that restricted travel between Victoria and NSW. In July 2021, during the pandemic’s height, Victorian residents who travelled to NSW under one set of rules were unable to return home after they were retrospectively changed.
The Victorian Ombudsman received more than 300 complaints from people regarding these exemptions to Victorian laws. The Victorian Ombudsman, Deborah Glass OBE, looked into these complaints and on 7 December 2021 in an Investigation Report titled ‘Investigation into decision-making under the Victorian Border Crossing Permit Directions’ wrote:
“Three days later, on 23 July 2021, red zone permits were reinstated together with the creation of extreme risk zones for which there were no permits. At the same time, all of NSW was determined to be an extreme risk zone retrospectively from 9 July 2021. As a consequence of the extreme risk zone applying retrospectively, anyone who had been in NSW from 9 July 2021 was considered a ‘prohibited person’ and was unable to enter Victoria without an exception or exemption.”
The parliamentary justification as to the retrospective change was the virus’s 14-day incubation period.
The report acknowledged that retrospective laws should be avoided in a society governed by the Rule of Law. The Victorian Scrutiny of Acts and Regulations Committee (SARC) is an oversight body that operates as an accountability safeguard for all Victorian legislative instruments. Under S 25A of the Subordinate Legislation Act, SARC has the authority to report to the Victorian Parliament where it believes that a legislative instrument has unauthorised retrospective effect.
A few months earlier, in January 2021, the Victorian Parliament introduced regulation 26 of the Subordinate Legislation (Legislative Instruments) Amendment Regulations. This regulation was designed to include Directions issued under the Public Health and Wellbeing Act, i.e., those orders made regarding the Pandemic, to the list of instruments not defined as legislative instruments.
Consequently, SARC was not authorised to oversee and scrutinise these directions and could not, therefore, report to parliament on the compatibility of these laws with the human rights outlined in the Victorian Charter.
Following the Ombudsman’s report, the Department of Health contended that in a State of Emergency “the retrospective effect of the declaration of NSW and ACT as ERZs [extreme risk zones] to protect public health was appropriate in the circumstances.” Although the declaration of ERZs were technically lawful, they still created unjust outcomes for Victorians who were trying to travel home.
The Victorian border saga highlights that even where statutory Human Rights protection exists against retrospective legislation, it can, nonetheless, be overridden. Cases such as the Victorian Permit Scheme highlight the significant ways in which human rights can be curtailed when the expected level of appropriate scrutiny is removed with nothing to replace it.
The Ombudsman’s investigation was tabled in Parliament in December 2021. A spokesperson indicated that the recommendations would be considered, however, there have been no further developments.
Analysis of retrospectivity
In an ideal Rule of Law world, no retrospective laws would be made. All citizens would clearly know the laws and would use that knowledge to guide their behaviour to follow the law. However, in the real world, there are emergencies and specific circumstances when retrospective laws are made that have been deemed appropriate.
The Rule of Law principle that the law is known in advance is protected in Australia by common law. The above cases illustrate the importance of the Principle of Legality and parliamentary scrutiny in safeguarding the rights of citizens against the arbitrary enactment of retrospective laws. In each of these cases, when the Court upholds or displaces the presumption against retrospectivity, they always refer to and consider the presence of parliamentary scrutiny and legislative intention.
Retrospective laws should be made sparingly, and if required, with adequate oversight and scrutiny of those processes to justify the displacement of the presumption against retrospectivity.