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Legislative Assembly for the ACT: 1999 Week 3 Hansard (24 March) . . Page.. 763 ..

MR HUMPHRIES (continuing):

a particular sum of money that they believed was owed to them. My recollection, and I stand open to be corrected by Mr Berry on this subject, is that all the other liabilities effected by the Assembly on those few occasions retrospectivity has been considered have been civil in nature only.

Mr Speaker, if this legislation passes as Mr Berry proposes to amend it today, for the first time we will make that step in a criminal sense. If we do that, we will do something that a parliament in the United States would not be able to do. I understand that in the United States there is a constitutional barrier against parliaments removing the rights of citizens after those rights have already accreted to those citizens. So, it would not be possible in the United States, but we are proposing to do it here. That may not be a particularly important argument, but members need to understand the gravity of the step that is being taken here. This is not an everyday piece of legislation. This is big. This is a big piece of legislation. It is highly significant.

Mr Speaker, let me deal first of all with the question which has been raised of whether it is, in fact, retrospective in nature and whether that retrospectivity is adverse. This is admittedly not a case of the legislature creating a liability for the very first time. What we would be actually doing if we passed this amendment would be re-creating a liability which has existed but which has expired by virtue of a limitation period contained in two pieces of legislation; that is, someone had a liability for prosecution but it expired and the liability ended on a particular date in the past. Mr Speaker, I believe that it is clearly retrospective in nature.

Members may have looked at the opinion provided to the Assembly in the scrutiny of Bills report that was tabled when these Bills were commented upon. I must say that the argument was not as clear-cut and as direct as it might have been; but, first of all, the amendments about retrospectivity had not come forward at that stage. So, understandably, it might not have been so clear. The argument about removing a limitation period was addressed very clearly by judges of the High Court in the case of Maxwell v. Murphy in 1957 and is referred to in a comment by the scrutiny of Bills committee. It comments that two judges, Chief Justice Dixon and Justice Williams, regarded such a law as having retrospective operation within the common-law concept of such a law. Sir Owen Dixon regarded it as a law which "destroyed a prescription already acquired". It is pointed out that another judge had a different view. However, the committee went on to say:

The views of Dixon CJ and Williams J probably represent the view an Australian court would take on the matter ...

They make the same comment in respect of the Occupational Health and Safety Bill. Mr Speaker, there is also, very clearly, the view of the ACT Bar Association, which issued a press release on this subject on 23 February.

Mr Berry: Who is the president of the Bar Association?

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