A Judicial Fiction? Retrospectivity and the Role of Parliament
journal contributionposted on 04.03.2020 by Lorraine Finlay
Any type of content formally published in an academic journal, usually following a peer-review process.
While a presumption against retrospectivity is applied by Australian courts, it is accepted that Australian Parliaments do have the power to enact retrospective laws. Pursuant to the principle of legality, the requirement is simply that retrospectivity be expressed in clear and unambiguous statutory language. Underpinning this is the idea that any retrospective law will be subject to parliamentary consideration and scrutiny before being adopted. This paper will consider whether the parliamentary scrutiny supposedly underpinning the principle of legality actually operates in practice, or whether it is more of a judicial fiction. The particular examples that will be considered are delegated legislation, claims of parliamentary consultation, legislation by press release, and examples of legal uncertainty requiring judicial clarification. These examples highlight the significant disparity between the parliamentary scrutiny referred to by the courts when applying the presumption against retrospectivity, and the reality of the parliamentary process. The paper concludes that the diminished role played by Parliaments in the Australian political system creates a very real risk of retrospective laws that are ill-considered and that potentially undermine the rule of law.