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Legislative Assembly for the ACT: 1999 Week 1 Hansard (16 February) . . Page.. 128 ..

MR HUMPHRIES (continuing):

However, the concept that we should change the law so as to affect those people who have already enjoyed the benefit or who it was proposed should enjoy the benefit of those particular provisions now in the Occupational Health and Safety Act - to affect their rights, in effect, retrospectively - was a matter about which I, as Attorney-General, had the very gravest concern. As members who have sat in this place for some years will know, the Government has always had a concern - indeed, members of this place have always had a concern - about the nature of adverse retrospectivity in legislation. This Assembly, with the greatest reluctance, has in the past moved to enact laws which have had the effect of removing people's rights, particularly after those rights had accrued.

Mr Speaker, I therefore took the precaution of writing to the Standing Committee on Justice and Community Safety, chaired by Mr Osborne, to seek the committee's view about this proposal. In that two-page letter I pointed out the difficulties inherent in legislating retrospectively, as I saw them, and asked the committee for its view. The committee, in turn, in a rather unusual move, suggested that I should speak to the Leader of the Opposition and shadow Attorney-General about the matter. They seemed to be saying that it would be guided by his view rather than having a view of its own. Fair enough. I then wrote to the shadow Attorney-General in the terms that I had written to the committee and asked Mr Stanhope to indicate his views to me. I went to lengths to explain the difficulty about the retrospective element of the legislation. Mr Stanhope wrote back a relatively short letter in response - he has referred to that letter already - in which he said, "I support the proposal" but went on to discuss only those aspects of the proposal which dealt with prospective legislation, that is, the extent of an extension on the limitation period. He made no attempt in the letter to refer to the nub of my letter, the most important part of my letter, which was retrospectivity and the effect on people's rights.

Bear in mind that I was writing not only to the Leader of the Opposition and shadow Attorney-General but also to the former chairman of the ACT Council of Civil Liberties, and I rather thought he would have something to say about the question of retrospective legislation and how it affects people's rights. No, nothing about that in his letter at all, no comment about that at all. He sidestepped the issue entirely, and rather arrogantly, I think, simply to say, "We support prospective legislation" in the detail of his comments. Not surprisingly, I felt it was appropriate to write back to the shadow Attorney-General and say, "What exactly do you mean?".

Mr Corbell: What part of "yes" do you not understand? It is pretty simple.

MR HUMPHRIES: No, it was very difficult to understand, because I had expected him to make it clear what he thought about retrospectivity and he had not done so. I wrote to him a second time and said, "What exactly do you mean? Are you supporting the retrospectivity or are you not?".

If, as Mr Stanhope now maintains, he always wanted retrospectivity, if he has always been prepared to support that, you would assume he would have written back to me saying, "No, Minister. It is perfectly clear I support everything that is in the proposal for retrospective legislation". But he did not do that. What he did was write back to me and say, "I am not going to tell you what we think about your proposal. You can wait to find out when the proposal is actually put back before the Justice and Community Safety

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