Retrospective legislation is almost always undesirable. It was undesirable when the previous ACT Government sought to remove rights under victims’ compensation laws in 1999. The law changed the rights of people who had already put claims in or who had sustained injuries before the legislation was passed. It was unfair and the Government should not have put such legislation to the Assembly. Instead it should have curtailed only claims arising out of injuries sustained from the date of the legislation.
Some of the victims appealed to the courts arguing that the law was invalid. The Supreme Court accepted their argument and the Full Federal Court upheld an appeal last week. The main grounds of the appeal were that the law offended the Constitution’s requirement that property not be acquired by government except with just compensation and that the law also offended the ACT provision that mirrored the constitutional provision.
The case has had the judiciary in disagreement, one of three judges in the Supreme Court and two of five judges in the Federal Court thought the legislation valid. There are important questions of legal and constitutional principle at stake. And there are important rights of injured people. The task for Chief Minister Jon Stanhope is to deal with both. It can be done. Mr Stanhope has quite rightly said that his Government will honour the claims struck out retrospectively by the legislation. But he has said he will do this by not appealing the Federal Court decision.
That might cause future ACT Governments difficulty. There are circumstances when retrospective legislation is warranted, particularly in tax cases where an unforeseen loophole needs to be closed immediately, but legislation cannot be got through the Parliament before the tax dodgers have rearranged their affairs. Other cases might also arise. The ACT and Commonwealth Parliaments need the power to take away things created in legislation, occasionally retrospectively. If rights granted under legislation are to be treated as property rights, it will hamstring future governments.
The matter should be settled by the High Court. The ACT should enact special legislation to deal with the compensation cases the subject of the case on a fair basis, and then join the Commonwealth in an appeal against last week’s ruling.