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Legislative Assembly for the ACT: 1999 Week 3 Hansard (24 March) . . Page.. 776 ..
MR STANHOPE (continuing):
The scrutiny of Bills committee report goes on that we can look at this issue in terms of two approaches which have been taken by the courts, and the courts have set out the need for us to look at the two different kinds of situations. The report goes on:
The first is where, in relation to a particular case, the time for prosecution under the "old" law (here, being within two years after the Act or omission alleged to constitute the offence ...) had expired at the time the "new" law commenced to operate. In this situation, it has been a matter of debate among the judges as to whether the new law should be regarded as a law having a retrospective operation. In Maxwell v. Murphy ... there was a difference of opinion between the High Court judges. Two judges - Dixon CJ and Williams J - regarded such a law as having retrospective operation ... Sir Owen Dixon regarded it as a law which "destroyed a prescription ...
And Williams had a view. The report goes on:
But Fullagar J regarded the law as merely affecting the procedure for prosecution of the existing offence, and thus did not, in terms of the common law, have a retrospective operation ...
The contrasting situation is where, in relation to a particular case, the time for prosecution under the "old" law had not expired at the time the "new" law came into effect. Here courts would regard the new law as having only a procedural effect on the operation of the old law -
see Maxwell v. Murphy -
and would not thus attempt to construe the new law in such a way as to not have a retrospective operation.
The scrutiny of Bills committee's report goes on:
A court faced with a provision such as is proposed by clause 4 of this Bill would in the first place accept that the Legislative Assembly had power to enact the law irrespective of whether it was seen as having any retrospective effect.
We can do it. All this talk about what the Yanks do is really quite irrelevant. Here in Australia we have the power and we can do it. The report goes on and on.
Mr Humphries: Hang on. Read what the majority view is.
MR STANHOPE
: I concede that it is debatable. It is not the black-and-white scenario that you have painted, Attorney. It is not the situation you have painted that this is the end of the world as we know it, that this is the end of the common law, that this is the end of justice in the Western system. "We have never done this since the start.
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