It is possible in Australia to break laws that have not yet been created, but there are instances where many would believe this is highly appropriate. The National Anti-Corruption Commission (NACC) may be one of these.
The two main principles that exist in rule of law in Australia are that if the person doing the wrong should have known that what they were doing was wrong, even though not technically illegal at the time, and that retrospective legislation can be backdated to the time that a Prime Minister or State Premier announced that they intended to create a law making something illegal.
In the cases that are likely to be brought before the NACC, it could be argued that many of those to be put under scrutiny would have known what they were doing was wrong, which is further emphasised by the fact that many of these people made laws to legalise what they were doing.
This principle of law was established in 1915 in the case of R v Kidman HCA 58 (1915), when Kidman challenged the validity of the Crimes Act 1915 (Cth) under which he had been found guilty for committing fraud in connection with goods supplied to His Majesty’s armed forces in 1914.
Kidman failed. The High Court held that although the Australian Parliament’s power is limited by the Constitution, the Australian Constitution (unlike its American counterpart) imposes no limitation upon the ability to enact retrospective laws.
While the specifics of this case have fallen into obscurity, the High Court held that he had committed fraud, and the Commonwealth were within their rights to introduce retrospective legislation to indict him. This precedent has not been successfully challenged to date.
A challenge was put forward in the extreme case of Polyukhovich v Commonwealth HCA 32 (1991), where Polyukhovich contended that the Australian Government did not have the right to indict him for war crimes he had committed under the retrospective War Crimes Amendment Act 1988 (Cth).
This Act provided that a person who committed a war crime between 1 September 1939 and 8 May 1945 was guilty of an indictable offence. In other words, the Act created a crime out of conduct that had occurred nearly 50 years before its passing.
In the Polyukhovich case, Justice Deane held that “the wrongful nature of the conduct ought to have been apparent to those who engaged in it.” This finding has also not been successfully challenged to date.
Indeed, there is a strong argument that this principle should hold in cases such as these, where people should have known what they were doing was wrong. It is difficult to believe, for example, that the perpetrators of Robodebt were unaware that what they were doing was illegal, when their own legal advisors told them this was the case.
The same applies for a great deal of other wrongdoings by current and former MPs.
The second principle, the ability to retrospectively apply legislation to when it was first tentatively announced, should be applied to at least December 2018, when Scott Morrison first announced his intention to create a form of the currently proposed NACC.
The rationale behind this principle is that the Prime Minister, at the time of announcing his/her intention, is putting MPs, public servants and others on notice that their conduct is inappropriate, and that they should take action to remedy it.
Few would argue that many to be affected by Morrison’s proposed legislation took any action to stop their questionable conduct, and the fact that the current leader of the opposition supports the legislation now before the parliament would give strength to it being retrospective.
Apart from the War Crimes Act 1945 (Cth), which was amended by the War Crimes (Amendment) Act 1988 (Cth), there is other retrospective legislation which many would support. At the time of the Second World War, there was no Australian legislation which criminalised war crimes committed by Australians in Europe.
Similarly, Sections 115.1 to 115.4 of the Criminal Code provide that any person may be prosecuted in Australia for murder or manslaughter of, or causing serious harm to, an Australian citizen or resident outside Australia. These provisions were enacted in the Criminal Code Amendment (Offences Against Australians) Act 2002 (Cth), assented to on 14 November 2002, with retrospective application from 1 October 2002. They were made in the aftermath of the Bali bombings on October 12, 2002, in which 88 Australians died.
Likewise, s 471.10 of the Criminal Code (Cth), concerning hoaxes using the postal service, was enacted by the Criminal Code Amendment (Anti-Hoax and other Measures) Act 2002 (Cth). The amending legislation was assented to on 4 April 2002, with retrospective operation from 16 October 2001. This was in the aftermath of September 11, when a number of hoaxes purporting to be sending Anthrax through the post were perpetrated by disturbed individuals.
There is also the Proceeds of Crime Act 2002 (Cth), which applies to offences and convictions regardless of whether they occurred before or after the commencement of the Act, with the result that proceeds of crime proceedings, including unexplained wealth proceedings, may involve consideration of offences that were committed, or are suspected to have been committed, at any time in the past. This seems particularly relevant to the NACC, but perhaps the new legislation could strengthen these laws.
The community seems more divided, however, on retrospective laws currently in place about tax avoidance, dividend washing and transfer pricing. These are contentious issues which affect a lot more people, but there are calls from others in the community to widen the laws to specifically target ultra-high income earners who have been avoiding tax for many years.
Another highly contentious piece of retrospective legislation was the amendment to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Regulation 2.08F was inserted into the Migration Regulations 1994 to convert all protection visas into temporary protection visas.
The amendment changes rights and obligations retrospectively in that all existing applications are taken to have never been valid applications for a permanent protection visa, and always to have been an application for a temporary protection visa.
Perhaps this last issue is something that the NACC will also need to look at.