Page 4813 - Week 13 - Thursday, 28 November 2019
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The amendments that I am moving today are very simple and very straightforward, so I will keep my remarks brief. Mr Gentleman suggested, using Mr Ramsay’s words, that he does not believe that we need to seek endorsement of the entire industry for changes like this, and I would completely agree with Mr Ramsay. But it is one thing to say that we do not need the endorsement of the entire industry; it is quite another to absolutely and completely ignore the very stakeholders who are fighting for their reputations. Most of them, as Mr Gentleman has pointed out, are doing a fine job. I think that is an absurd position.
These amendments seek to make it abundantly clear that these provisions will not apply retrospectively. Generally speaking, not allowing these new laws to apply retrospectively is a common legal principle. I know that Mr Gentleman has covered this, but I am not entirely satisfied that the bill as it stands at the moment gives enough protection in this space. Amendments 1 to 4 simply add that the section applies to offences, rectification orders and construction services after the commencement of these amendments.
It is unfair and harsh to convey personal liabilities of offences or rectification orders that may have been committed or served prior to this bill passing in the Assembly or even prior to when the current directors of a company may have held that position. The bill, as it currently stands, certainly according to advice that I have seen from people who are more legally qualified than the minister, is unclear about the intention of these measures.
My amendments today seek to ensure that it is crystal clear that these measures cannot be applied retrospectively. I refer briefly to legal advice which was circulated to a number of members from the master builders association, which states:
It is our view that the purpose of the Bill could be clarified and more readily achieved by the making of certain modifications to the Bill. If it was intended to be retrospective, it should state in expressly. The merits of that decision could then be debated accordingly. If it was not intended to be retrospective, that should be stated expressly. The worst of all worlds is to leave the matter open to doubt.
I have a funny feeling that my crossbench colleagues, or at least one of them, agree pretty comprehensively with that, but I think we are just going to march on. The other suggestion was:
Clarity around the retrospective operation of the amendments could only serve to foreshorten or avoid court proceedings in the future. Amendments to the current draft of the Bill should be made to make plain whether or not it is intended to apply retrospectively. For the reasons stated above, it may not apply retrospectively in legal form but it will in practical effect.
Amendment Nos 5 and 6 seek to ensure that all avenues to enforce and retrieve payment of fines from a corporation have been exhausted before making directors personally liable. Madam Speaker, quite frankly, that is not made clear in the bill. It is not made clear at all. If you take the bill exactly the way that it is written, at the point
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