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Legislative Assembly for the ACT: 1997 Week 4 Hansard (8 May) . . Page.. 1141 ..

MR SPEAKER (continuing):

The principle here, which continues to be the committee's argument, is that retrospectivity in delegated legislation that prejudices individuals is absolutely not acceptable. The Government has accepted the Government Solicitor's advice that the determination was, among other things, an administrative instrument and not a subordinate law. In the meantime, a motion of disallowance had been moved in the Assembly and later withdrawn following the introduction of a private members Bill proposing an alternative means of dealing with this problem. Hence, the Assembly will need to consider this report. I urge members to put it aside carefully, for close examination before the next debate.

I again stress the significance of this report and this Assembly's ability to scrutinise delegated legislation. Large sums of money are collected in the Territory under the provisions in delegated legislation and, if this power can be exercised retrospectively to impose legal liability on citizens where none existed before, it could be regarded with concern by citizens in the Territory and by this Assembly. But, if the view accepted by the Government is correct, it means that legal monetary or other burdens can be imposed retrospectively on Territory citizens by delegated legislation made by the Executive, or a member of the Executive, without any prior consideration by the Legislative Assembly. If this kind of retrospectivity is valid, people can have monetary burdens placed on them retrospectively where none existed before.

It is no longer possible for a parliament to make all the law in our complicated society. Thus, parliament confers power on the executive or on other people to make law on behalf of the parliament. As it is law being made in parliament's name, parliament imposes certain restrictions on the making of that delegated legislation. It requires publication of making, tabling, disallowance and, in some instances, consultation with the parliament.

One common and key restriction on the making of delegated legislation is that, to protect citizens, the executive does not have the power to make delegated legislation that imposes liabilities retrospectively on individuals. Benefits can be conferred retrospectively by delegated legislation, but not burdens. If the executive wishes to impose burdens retrospectively, that must be done by the parliament itself and be subject to parliamentary scrutiny, debate and publicity. It is the committee's view that this is a basic principle that must be upheld.

The committee argues that section 7 of the Subordinate Laws Act applies this restriction in the ACT and so ensures that in our delegated legislation members of the public and of this parliament should know in advance what their legal liabilities will be. On the Government's view, it appears that almost all Acts under which fees and charges can be imposed escape the prohibition against prejudicial retrospectivity on individuals and it would be possible to impose prejudicial retrospectivity under any of those Acts. The Assembly can exercise some control over delegated legislation through disallowance, as was attempted in respect of Determination No. 227, though withdrawn with that Bill coming into the Assembly. But it is only partial control and does not answer the principles that I have outlined. And, of course, money would have been collected in what could be an extended period, and those who paid the money would not expect any refunds.

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