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Retrospective Legislation in Australia: Looking Back at the 1980s

Published online by Cambridge University Press:  24 January 2025

Andrew Palmer  and
Charles Sampford
Andrew Palmer
Affiliation:
University of Melbourne
Charles Sampford
Affiliation:
Griffith University and National Institute for Law, Ethics and Public Affairs
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Extract

Nothing is more certain to cause explosions of fear and loathing among some lawyers than the mention of the word “retrospectivity”. Few topics can be better guaranteed to produce conflict without resolution, heat without light. The term “retrospectivity” is used in the loosest possible way to refer to just about any change that affects a client's interests, and while debate may seem to resemble philosophical disputation, terms like “human rights”, “justice”, “democracy” and “the rule of law” are used for effect rather than argument. But despite the lack of rigour with which the public debate is conducted, the issues do reflect and exemplify genuine philosophical and theoretical problems.

Type
Research Article
Information
Federal Law Review , Volume 22 , Issue 2 , June 1994 , pp. 217 - 277
Copyright
Copyright © 1994 The Australian National University

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Footnotes

The paper was written during the time when Professor Sampford was Deputy Director of the Centre for Philosophy and Public Issues at Melbourne University and Andrew Palmer was a research fellow at the Centre. Part of it is based on a paper delivered by Professor Sampford to the Law and Society Conference held in Brisbane in December 1990. This work is part of a project funded by the Victoria Law Foundation, whose generous support they wish to acknowledge. The authors also wish to acknowledge the helpful leads to locating retrospective legislation provided by Margaret Allars, Stephen Argument, David Creed, Peter Hanks, Anton Hermann, and Stuart Williamson. They also wish to acknowledge the research assistance provided by Will Barrett and Christine Parker.

References

1 Unfortunately, there is insufficient space to explore this theme in any detail within this article. The theme will be more fully explored in C Sampfor Retrospectivity and the Ride of Law, due for completion during 1995.

2 D C Pearce, Statutory Interpretation in Australia (2nd ed 1981) at 149. It should be noted that this definition was deleted in the third edition.

3 To “grandfather” is to preserve the tax benefits accruing under previous laws by those who have already made investments.

4 For example, G de Q Walker, The Rule of Law (1988).

5 Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth).

6 Sen Deb 1982, Vol 96 at 2599.

7 Most notably that Fuller was not arguing that all retrospective legislation was necessarily bad, but that if all law were retrospective then there would be no law. It was only in an ideal world in which all laws were clear, well publicised, never changing and known in advance that laws would be, and could be required to be, entirely prospective. See L L Fuller, The Morality of Law (Rev ed, 1969).

8 Ibid at 59.

9 The Curran scheme is described below, 254-256.

10 See speeches by Shadow Treasurer Willis, H Reps Deb 1978, Vol 109 at 1902; and by Senator Peter Walsh, Sen Deb 1978, Vol 77 at 2417.

11 E A Driedger, “Statutes: Retroactive Retrospective Reflections” (1978) 56 Canadian Bar Rev 264 at 268-269 and 276.

12 D C Pearce and R S Geddes, Statutory Interpretation in Australia (3rd ed 1988) at 181.

13 E A Driedger, above n 11 at 276.

14 As happened during the first three disastrous years after the 1979 British General Election when high interest rates drove up the British pound despite inflation which at one stage reached 22%. This led to significant reductions in manufacturing output that took until 1987 to return to the pre-inflationary levels (and incidentally trebled unemployment).

15 [1957] 1 WLR 1219.

16 [1980] VR17.

17 D C Pearce and R S Geddes, above n 12 at 182.

18 G de Q Walker, above n 4 at 322 (footnote omitted).

19 J Stone, Legal System and Lawyers' Reasoning (1968) at 165-185.

20 Published as “Definition and Theory in Jurisprudence” (1954) LQR 37.

21 G de Q Walker, above n 4 at 175. The problems with this accusation are dealt with in Sampford's review of Walker in (1989) 17 MULR 174 at 178.

22 The assertion is made as a preliminary to an argument that the Commonwealth Parliament may lack constitutional power to enact retrospective legislation. This argument is, to say the least, a bold one, given its lack of support in both the United States Supreme Court and Australian High Court. Walker naturally did not have the benefit of the argument in Polyukhovich v Commonwealth (1991) 172 CLR 501 (discussed below) in which Deane and Gaudron JJ made a similar argument in relation to criminal retrospective legislation. The rest of the Court did not adopt this argument and no Justice appeared even to contemplate a view as broad as Walker's.

23 H L A Hart, The Concept of Law (1961).

24 It is, in fact, one of those theories that Walker blames for the problems identified in his book (Walker above n 4 in ch 5).

25 H Kelsen, The Pure Theory of Law (1970).

26 O W Holmes, “The Path of the Law” (1897) 10 Harv L Rev 457 at 461.

27 For a very good account of the range of rule types, see A M Honore, “Real Laws” in P Hacker and J Raz (eds), Law, Morality and Society: Essays in Honour of HL A Hart (1977).

28 L L Fuller, above n 7 at 41.

29 Ibid at 39.

30 Ibid at 41.

31 Ibid at 53.

32 And if it is not, then the “undemocratic” objection applies with equal force to all Commonwealth legislation, whether retrospective or not.

33 It would be at least as valid to argue that the Opposition parties' attempt to block the Government's Bills in the Senate was undemocratic.

34 See Eule, J N “Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity” (1987)Google Scholar American Bar Foundation Research Journal 379.

35 Ibid at 455-456.

36 Alternatively it could be seen as a restatement of the argument that people should be discouraged from relying on the rules of non-democratic governments – see below.

37 This does not mean that there are not many good reasons for newly elected governments to retain existing laws. Many of the existing laws might be good or at least only marginally unobjectionable; any change of the law is disruptive and retrospective laws may be more so and there are (admittedly weaker) reliance arguments in favour of retaining laws.

38 J N Eule, above n 34 at 445.

39 The continuation of those consequences to cease, unless endorsed by the next government.

40 “Retrospective legislation against tax avoidance”, press release of 28 April 1983, reprinted in (1983) 17 Taxation in Australia 1006 at 1006-1007. Emphasis added.

41 J N Eule, above n 34 at 387. The point is derived from Jeremy Bentham, and contained in H Larrabee (ed), Handbook of Political Fallacies (1952) at 55.

42 It is notoriously difficult to determine what issues affected what voters.

43 See, for instance, Raz, J “The Rule of Law and its Virtue” (1977)Google Scholar 93 LQR 195 at 198.

44 L L Fuller, above n 7 at 39.

45 We note that with several of the new taxation decisions, some tax practitioners complain that the courts are overturning the interpretation that was commonly held in the tax profession. Although we do not follow the taxation decisions closely, the sorts of decisions never cause us any surprise. We wonder whether someone who continues to read taxation legislation as if it were being interpreted by the Barwick Court is really doing the client good service.

46 J Rawls, A Theory of Justice (1973) S 63 at 407-416.

47 This is our formulation, but it is in line with those of other writers including N J Mclntyre, “Transition Rules: Learning to live with Tax Reform” (1976) Tax Notes 7 at 8-9; A S Novick and RI Petersberger, “Retroactivity in Federal Taxation” (1959) 37 Taxes 499 at 509-530; and W D Slawson, “Constitutional and Legislative Considerations in Retroactive Lawmaking” (1960) 48 California L Rev 216 at 238-242. It is fairly close to the view put forward by G de Q Walker, above n 4 at 322ff.

48 S R Munzer, “A Theory of Retroactive Legislation” (1982) 61 Texas L Rev 425 at 433.

49 Ibid at 430.

50 Munzer refers to situations in which there are more than one set of expectations as “layering”: ibid at 429.

51 Ibid at 432.

52 Ibid at 434.

53 Newell v the Queen (1936) 55 CLR 707.

54 Inverted commas are used to recognise that it is only a future procedure that is being affected.

55 Sen Deb 1979, Vol 82 at 619-620.

56 This argument is advanced by Y Grbich, “Problems of Tax Avoidance in Australia”, in J G Head (ed), Taxation Issues of the 1980s (1983) 413 at 426-427.

57 (1989) 166 CLR 417.

58 (1987) 87 ATC 4,988; 79 ALR 586.

59 (1977) 140 CLR 314.

60 The High Court refused special leave to appeal from the Federal Court's decision. For condemnation of this case see “Editorial” (1988) 17 Australian Tax Rev 1 and A J Myers QC, “The Federal Court Decision in the Gregrhon Investments Pty Ltd Case” (1988)17 Australian Tax Rev 4. The ALJ Revenue Editor, noting Myers QC's outrage, argued that if the decision in Gregrhon was a surprise, it was only because “revenue practice tends to be so confining in its specialisation that its opinion formers may tend to lose touch with reality”: “Revenue” (1988) 62 ALJ 470 at 471. Interestingly, the decision in Gregrhon's case means that Treasurer Howard's initial claimthat the bottom-of-the-harbour legislation was not retrospective because the tax had always remained payable – a claim roundly rejected at the time – wasin fact correct: see, for instance, IC F Spry QC, “Retrospective Legislation for Company Tax” (1982) 11 Australian Tax Rev 152 at 156-157.

61 The last two are chosen to make the point that Rawls's theory of justice could not be fulfilled without taxation. See Rawls's principles of justice, above n 46 at 60.

62 George Hudson Limited v Australian Timber Workers' Union (1923) 32 CLR 413 at 434.

63 This reason was cited by Treasurer Howard in his Second Reading Speech on the Income Tax Assessment Amendment Bill 1978, H Reps Deb 1978, Vol 108 at 1244.

64 See Sampford, C “Taking Rates Seriously: Effective Reductions as the Thirteenth Labour of Hercules?” (1991)Google Scholar 9 Law in Context92 and “Cumulative Effective Tax Rates” (1991) 21 Economic Analysis and Policy 211.

65 However cynical citizens may be of any principles claimed by politicians, this reason was cited by Treasurer Howard in his Second Reading Speech on the Taxation (Unpaid Company Tax) Assessment Bill 1982, H Reps Deb 1982, Vol 129 at 1866, and was repeatedly relied on by the ALP.

66 Dworkin, R, “Hard Cases” in Taking Rights Seriously (1977)Google Scholar 81 at 84.

67 Interview with Professor Sampford, August 1986.

68 The SBC reports to the Senate on Bills which, among other things, “trespass unduly on personal rights and liberties”; it includes in this category legislation which purports to have retrospective effect. Because, however, the SBC does not drawthe Senate's attention to provisions which do not affect personal rights and liberties or obligations in any way, such as corrections of minor drafting errors, or to provisions which retrospectively remove obligations or confer benefits, or to situations where the retrospective imposition of taxes, charges and the like has been authorised by legislation, its reports tend to highlight only the potentially “bad” examples of retrospectivity. For an outline of the SBC's approach to retrospectivity see Senator Michael Tate, The Operation of the Australian Senate Standing Committee for the Scrutiny of Bills, 1981-85 (Parliamentary Paper No 317 of 1985) at 23-25.

69 At the time of writing, the 1990 Commonwealth bound volumes had not been printed, and the Victorian bound volumes only included statutes passed on or before 30 June 1990.

70 It also appears to be a far more prolific enacter of retrospective legislation than the Victorian Parliament, and possibly therefore, State and Territory Parliaments in general.

71 The reason for saying “at least” is because the SBC is unlikely to have reported on all such Bills.

72 The reason for saying “at least” here is because the only source for these statutes was the Acts table of the bound volumes; this means that only those statutes which are retrospective by virtue of their commencement dates have been discovered.

73 Age 22 November 1982.

74 L L Fuller, above n 7 at 53.

75 See S R Munzer, above n 48 at 468-470.

76 Including Community Services and Health Legislation Amendment Act 1989, Customs and Excise Legislation Amendment Act (No 2) 1989, Defence Legislation Amendment Act 1989, Social Security and Veterans' Affairs Legislation Amendment Act 1989, Social Security and Veterans' Affairs Legislation Amendment Act (No 2) 1989, Social Security and Veterans‘ Affairs Legislation Amendment Act (No 3) 1989, Social Security and Veterans’Affairs Legislation Amendment Act (No 4) 1989, Taxation Laws Amendment Act (No 3) 1989 and the Taxation Laws Amendment (Superannuation) Act 1989.

77 Including Accident Compensation (General Amendment) Act 1989, Adoption (Amendment) Act 1989, Agricultural Acts (Miscellaneous Amendments) Act 1989, Conservation, Forests and Lands Acts (Amendment) Act 1989, Crimes Legislation (Miscellaneous Amendments) Act 1989, Education (Work Experience) Act 1989, Extractive Industries (Amendment) Act 1989, Fisheries (Abalone Licence Charges) Amendment Act 1989, National Parks (Amendment) Act 1989, Planning and Environment (Amendment) Act 1989, Racing (Amendment) Act 1989, Transport (Amendment) Act 1989 and the Water Act 1989.

78 For example the Racing (Amendment) Act 1989 (Vic) substituted the word “section” for “secton” in the Principal Act; the Fisheries (Abalone Licence Charges) Amendment Act 1989 (Vic) substituted 5000 for 500 in the very recently enacted Fisheries (Abalone Licence Charges) Act 1989 (Vic); the new charges had been announced before the commencement date of both Acts.

79 For instance, the retrospective alteration of a reference to “Family Benefit” to “Family Allowance”.

80 Such as where an Amending Act substitutes one year for another in the title of an Act referred to in the Principal Act.

81 Similar examples are the Administrative Services Legislation Amendment Act 1989 (Cth), which added work on Parliament House to the definition of “public works” contained in the Public Works Committee Act 1969 (Cth); the Banking Legislation Amendment Act 1989 (Cth), which substituted a new schedule listing banks in the Banking Act 1959 (Cth) and repealed a section of the Commonwealth Banks Act 1959 (Cth) which required that the profits of the Commonwealth Development Bank go to the credit of the Commonwealth Development Bank Reserve Fund; the Health (General Amendment) (Amendment) Act 1989 (Vic), substitution of a new definition of hospital in the Health Act 1958 (Vic); the Cultural and Recreational Lands (Amendment) Act 1990 (Vic), addition of MCG, National Tennis Centre and other sporting facilities to the definition of “cultural and recreational lands” in the Principal Act; and the National Parks (Further Amendment) Act 1990 (Vic), which amended the description of an easement which had been granted to the Commonwealth by the National Parks Act 1975 (Vic).

82 On other occasions changes to legislation may have unintended effects, perhaps creating an anomaly which may take some time to discover, and which might in fact be practically undiscoverable by the person affected. The Customs Tariff Amendment Act 1986 (Cth), for instance, restored duty-free entry to certain parts used in the construction or modification of bountiable vessels; the parts had lost their duty-free status as an unintended result of amendments to some Customs by-laws.

83 A similar example of this is the Bounty (Injection-Moulding Equipment) Amendment Act 1985 (Cth), which continued a bounty scheme from the date on which the previous scheme expired.

84 For example, the Tobacco Charge (No 1) Amendment Act 1986 (Cth), Tobacco Charge (No 2) Amendment Act 1986 (Cth), and Tobacco Charge (No 3) Amendment Act 1986 (Cth), reestablished legal rates of charge from the date on which the previous rates had expired; the new rates were the same as the old.

85 Examples of the retrospective correction of a legislative scheme which proves to have been flawed are provided by Liquefied Petroleum Gas (Grants) Amendment Act 1984 (Cth); Australian Meat and Live-Stock Legislation (Consequential Amendments and Transitional Provisions) Act 1985 (Cth); the Defence Service Homes Amendment Act 1989 (Cth), which amended the Defence Service Homes Act 1988 (Cth) to ensure that home loan approvals could not be given without the Minister's approval (although those whose loans had already been approved were allowed to keep them); the Aged or Disabled Persons Homes Amendment Act 1989 (Cth), which listed the persons to whom capital grants for hostels can be made, this provision having been omitted from an earlier amending Act; the Commonwealth Borrowing Levy Amendment Act 1989 (Cth) and Commonwealth Borrowing Levy Collection Amendment Act 1989 (Cth) which retrospectively freed the Australian Capital Territory Electricity and Water Authority from a requirement to pay the Commonwealth Borrowing Levy from the date of ACT self-government; Industry, Technology and Commerce Legislation Amendment Act 1989 (Cth), “clarification” of a Capital Gains Tax provision; Veterans' Affairs Legislation Amendment Act 1989 (Cth), which restored a right unintentionally lost through previous amendments; Social Security Legislation Amendment Act 1990 (Cth); Taxation Laws Amendment Act (No 5) 1990 (Cth); the Health Acts (Amendment) Act 1989 (Vic); the Health Services (Amendment) Act 1990 (Vic), which retrospectively deemed any decision of the Cancer Institute Board made before the appointment of the Peter McCallum Cancer Institute Board to be a decision of the latter so as to ensure a continuity of authority between the demise of the Cancer Institute and the transfer of its duties to the Peter McCallum Cancer Institute, with similar provisions in relation to the Fairfield Hospital and the Tweddle Baby Hospital.

86 Sometimes the fact that the person's view of the law was erroneous comes to light as a result of a judicial decision; such cases are considered separately below.

87 For example the Customs and Excise Legislation Amendment Act (No 2) 1989 (Cth) retrospectively validated certain regulations which may have been beyond power. The Transport and Communications Legislation Amendment Act 1989 (Cth) allowed for the making of retrospective regulations which were necessary to validate routine telex and zonal changes dating back to 1980; Telecom asserted that most people would have benefited from the changes: see SBC, First to Twenty-first Reports of 1989 (Parliamentary Paper No 466 of 1989) at 73.

88 For example, the Live-Stock Slaughter (Export Inspection Charge) Validation Act 1984 (Cth) validated certain charges which, because the responsible Department had failed to prescribe “abattoirs” as required by the Principal Act, had been collected without statutory warrant for over a year; the Quarantine (Validation of Fees) Act 1985 (Cth) was necessary because the Department had failed to table certain notices in Parliament; and the Food(Validation) Act 1990 (Vic) removed doubts about the validity of the Food Standards Code and the Food Standards Regulations 1987 which had arisen as a result of the failure to table in Parliament certain materials adopted in the Code.

89 For further discussion of this Act, see R Lombardi and Martin, S “Acts without power?” (1991)Google Scholar 65 Law Institute Journal 75. A similar example is provided by the Bank Accounts Debits Tax Legislation Amendment Act 1983 (Cth), which provided a stronger constitutional footing for a potentially unconstitutional but unchallenged method of collecting a tax.

90 There was a similar defect in the Primary Industries and Energy Research Development Act 1989 (Cth), which allowed for the making of regulations pursuant to which the Grains Research and Development Corporation was established. The regulations also purportedto provide that the research component of the Wheat Industry Fund Levy be paid to the Corporation. It transpired that the Act did not permit the latter part of the regulations, with the result that the research component of the levy had to remain in consolidated revenue. The Primary Industries and Energy Legislation Amendment Act 1990 (Cth) retrospectively amended the earlier Act to allow for the making of such regulations, with the result that the research component of the levy could be paid to the Corporation. A similar hole in the law was left by the repeal of the Wheat Marketing Act 1984 (Vic), as the repealing Act failed to direct what was to happen to moneys kept in a certain account. The necessary direction was subsequently provided by the Agricultural Acts (General Amendment) Act 1989 (Vic). Other examples are the Live-Stock Slaughter Levy Collection Amendment Act 1984 (Cth), which validated payments made by the Commonwealth to the Northern Territory out of the National Cattle Disease Eradication Trust Account, from which only payments to States were allowed; the Land (Miscellaneous Matters) Act 1989 (Vic), which retrospectively added a parcel of land to the schedule of lands from which Crown grants and reservations were revoked in order to allow for the widening of Punt Road; the Administrative Appeals Tribunal (Planning) Act 1990 (Vic),which gave retrospective authority to the President of the AAT to delegate his powers under Acts other than the Administrative Appeals Tribunal Act 1984(Vic) (which powers he or she could already delegate), and validated any such delegations which had already been made. Invalid administrative practices were also validated by the Health Legislation Amendment Act (No 2) 1983 (Cth), Social Security and Repatriation Legislation Amendment Act 1984 (Cth), and Veterans' Affairs Legislation Amendment Act 1989 (Cth).

91 This was the second attempt to close this loophole. The first attempt was made with the Social Security and Veterans' Entitlements Amendment Act (No 2) 1987 (Cth); the partial failure of this attempt was exposed by the AAT in Re Tallon and Secretary, DSS (1988) 8 AAR 348. The second attempt was also only partially successful, because the drafters of the 1988 Act apparently failed to realise that the 1987 Act had not been retrospective. In Re Jovanovic and Secretary, DSS (1988) 16 ALD 8 and Re Krzywak and Secretary, DSS (1988) 9 AAR 275, the AAT found various ways to plug the gap. For further details, see P Hanks, “Compensation payment: precluded from pensions” (1988) 43 SSR 544; “Social Security Amendment Act” (1988) 43 SSR 556; “Compensation payments: retrospective amendments and legal creativity” (1988) 45 SSR 573; and “Compensation payment: preclusion” (1988) 45 SSR 580.

92 (1988) 9 AAR 275.

93 A less controversial example related to amendments to the provisions of the Superannuation Act 1976 (Cth) dealing with lump sums payable on the commutation of a pension which came into effect on 1 May 1987; failure to make the necessary consequential amendments at that time meant that a person renouncing an invalidity pension could be paid the amount of accumulated contributions twice. The Superannuation Legislation Amendment Act 1990 (Cth) prevented such a person from receiving this windfall gain.

94 “Law Critics Score a Win on Points”.

95 Another example of the need for the validation of non-governmental actions is provided by the Bayside Project Act 1988 (Vic), which stated that no authority or permit to develop or build on the Bayside Project site could be granted until the Environment Protection Authority (EPA) had declared that contamination had been removed. This created something of a Catch-22 situation, because the effect of the provision was that decontamination work could not be carried out without EPA approval, which approval could not be given until the decontamination work had been completed. The Bayside Project (Amendment) Act 1989 (Vic) provided that no authority was needed to carry out decontamination work, and that a person who had done such work should be taken to have been authorised to do so. The subsequent Act here effectively conferred an immunity from prosecution on those who may have carried out decontamination work without realising that they needed EPA approval to do so.

96 See “Government's action sets dangerous precedent for Tax-payers” (1990) 25 Taxation in Australia 546, and SBC, Seventh Report of 1990 (7 November 1990) at 98-102 and 115-125.

97 Reproduced in SBC, Seventh Report of 1990 (7 November 1990) at 116.

98 Ibid.

99 Graham v Goodcell 282 US 409 at 429-430; 75 Law Ed 415 at 440-441 (1930).

100 Letter to SBC, reproduced above n 97 at 118.

101 Ibid at 124-125.

102 Some other statutes falling into this category have been or will be discussed elsewhere in this article, including the Repatriation Legislation Amendment Act 1985 (Cth), Veterans Entitlements (Transitional Provisions and Consequential Amendments) Act 1985 (Cth), Taxation Administration Amendment (Recovery of Tax Debts) Act 1985 (Cth) and Social Security Amendment Act 1988 (Cth).

103 A typical example is provided by the Superannuation Legislation Amendment Act 1986 (Cth), which gave retrospective validity to the Commissioner for Superannuation's interpretation of a section in the Superannuation Act 1976 allowing the Commissioner to issue a certificate stating that, due to a condition specified in the certificate, a person “is not likely” to continue as an eligible employee until retirement. The purpose of this section is to allow the payment of reduced benefits to an employee who retired on the grounds of invalidity where the Commissioner was of the opinion that the invalidity was caused or substantially contributed to by a condition specified in the certificate. The Commissioner had always interpreted the “is not likely” test as meaning “there is a real risk”. In Re Bewley and Commissioner for Superannuation (1985) 8 ALD 293, however, the AAT held that the test actually meant “more probable than not”. Any AAT decision, made before the date of Assent, to set aside the Commissioner's decision to issue a certificate was saved. Similarly, the Repatriation Act 1920 (Cth) provided that the Repatriation Commission (the Commission) should grant a claim for a pension unless it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The Commission had held it to be so satisfied whenever it failed to accept any evidence that a claimant's incapacity arose out of or was attributable to his or her war service. In Repatriation Commission v O'Brien (1985) 58 ALR 119, the High Court rejected this approach, but the effect of the decision was undone by the Repatriation Legislation Amendment Act 1985 (Cth). The Veteran's Entitlements (Transitional Provisions and Consequential Amendments) Act 1985 (Cth) applied the same amendments to another statute which contained an identical standard of proof provision.

104 (1990) 96 ALR 119.

105 There is no crime or punishment except in accordance with law.

106 Article 11(2).

107 Article 7.

108 L L Fuller, above n 7 at 59.

109 Triggs, “Australia's War Crimes Trials: A Moral Necessity or Legal Minefield” (1987) 16 MULR 382 at 392.

110 For a general examination of the right, see Popple, J “The Right to Protection from Retroactive Criminal Law” (1989)Google Scholar 13 Crim L] 251. Unfortunately one of Popple's main examples of an allegedly retrospective criminal law – the bottom-of-the-harbour legislation – conflates a non-retrospective statute (the Crimes (Taxation Offences) Act 1980 (Cth)) and a non-criminal one (the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth)): see at 259-260.

111 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 688.

112 Ibid at 689.

113 This argument could have been used to justify the Commonwealth Places (Application of Laws) Act 1970 (Cth). In R v Phillips (1970) 125 CLR 93 the accused was charged with an act of gross indecency under Western Australian law, the relevant act being committed on a RAAF base. The High Court held that upon acquisition of a place by the Commonwealth, State laws ceased to apply. This left a legal gap: no general criminal laws covered these places. Section 4(1) of the Act deemed the laws of the State in which a Commonwealth place was located to have applied at all times to such places. The Attorney-General admitted that “the Bill, if enacted, will apply State laws retrospectively in both civil and criminal matters”: H Reps Deb 1970, Vol 70 at 2801. It is extremely unlikely, however, that persons caught by the Act would have been aware of the existence of a legal vacuum which rendered their actions non-criminal.

114 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 643.

115 Reichsgesetzblatt (1935) I Art 1, quoted in S Glueck, The Nuremberg Trial and Aggressive War (1946) at 73.

116 This fact was crucial to Brennan J's determination that the Act could not be supported on the external affairs power conferred by s 51(29) of the Commonwealth Constitution: Polyukhovich v Commonwealth (1991) 172 CLR 501 at 572. All of the other Justices, on the other hand, held that the external affairs power did support the Act simply because the conduct with which the Act was concerned occurred outside Australia.

117 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 691.

118 This is suggested as a deliberate tactic by those who would restore democracy in countries which have suffered coups (see C Sampford, “Coups d'etats and Law” (1990) 13 Bulletin of the Australian Society of Legal Philosophy 253).

119 “No Bill of Attainder or ex post facto law shall be passed” by Congress (Art I, s 9, cl 3), or by the States (Art I, s 10, cl 1). These prohibitions have been construed by the United States Supreme Court as being limited to retrospective criminal laws: Calder v Bull 3 US (3 Dall) 386 (1798).

120 Polyukhovich v Commonwealth (1991) 172 CLR 501; Brennan J did not, however, deny the validity of retrospective criminal laws per se, but held that the War Crimes Amendment Act 1988 (Cth) could not be supported on any Commonwealth head of power. Retrospective criminal laws were also upheld in R v Kidman (1915) 20 CLR 425 and Millner v Raith (1942) 66 CLR 1. Both cases dealt with wartime statutes. R v Kidman upheld the validity of the Crimes Act 1915(Cth), s 2 of which added conspiracies to defraud the Commonwealth to the conspiracies declared by s 86 of Crimes Act 1914 to be indictable offences; s 3 deemed the Act to have been in force since the commencement of the 1914 Act. For an indictment of this Act, see D Gifford, Statutory Interpretation (1990) at 172. Millner v Raith upheld the validity of the Defence Act 1941 (Cth). Section 73C(1) of the Defence Act 1903 made it an offence fraudulently to supply to the Commonwealth for use by the Defence forces any article of food inferior in quality or less in quantity than that specified by contract. Section 3 of the Defence Act 1941 shifted the onus of proving absence of fraud from the Commonwealth to the defendant. Related changes were made by s 4,adding to the Principal Act s 73E which provided that where the person to whom s 73C applied was a body corporate, the directors and managers of the body corporate covered were also guilty of an offence. Section 2 of the Act deemed the amendments made by ss 3 and 4 to have come into operation as from the start of the war.

121 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 536-537 per Mason CJ; see also 646 per Dawson J, 689 per Toohey J and 721 per McHugh J.

122 Ibid at 612 per Deane J; see also at 707-708 per Gaudron J.

123 Such as membership of an organisation. A statute was struck down as an unconstitutional Bill of Attainder by the United States Supreme Court in United States v Brown 381 US 437 (1965), where the characteristic was membership of the Communist Party.

124 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 536 per Mason CJ, 649 per Dawson J, and 721 per McHugh J.

125 The Minister argued that this might actually benefit persons charged by increasing the likelihood that the disciplinary tribunal would choose to impose the deduction penalty, rather than one of the harsher penalties such as deferral of an increment, demotion or dismissal: see Letter to SBC, reproduced in SBC, Twelfth to Twentieth Reports of 1986 (Parliamentary Paper No 445 of 1986) at 155-156.

126 Letter to SBC, reproduced in SBC, Eleventh to Eighteenth Reports of 1987 (Parliamentary Paper No 442 of 1987) at 112.

127 This has received recognition by some academics such as G de Q Walker, above n 4, ch 13.

128 See, for instance, Treasurer Lynch's Budget Speech, H Reps Deb 1977, Vol 106 at 54.

129 See Treasurer Howard's Second Reading Speech on the Income Tax Assessment Amendment Bill 1978, H Reps Deb 1978, Vol 108 at 1244-1245: at the time this speech was described as the dropping of a “bombshell”.

130 Whether the budget blow-out was the cause of the Government eventually taking action is impossible to know, although the ALP certainly claimed that the Government was solely “motivated by concern at the enormity of the prospective loss of revenue”: see Shadow Treasurer Willis, H Reps Deb 1978, Vol 109 at 1901. See also “Recent amendments to the Income Tax Assessment Act 1936; the issue of retrospectivity” (1978) 52 ALJ 299 at 300.

131 “Retrospective Legislation” (1978) 7 Australian Tax Review 165.

132 In Curran's case itself, the taxpayer purchased 200 shares in a private company for $186,000 (the figures have been rounded for convenience). As the principal shareholder he then caused a dividend of $191,000 to be paid in the form of 191,000 bonus shares. These dividends were not assessable as income because of s 44(2) of the Income Tax Assessment Act 1936 (Cth), which gives recognition to the fact that a bonus issue of shares does not constitute a realisation of income but rather a further sub-division of the shareholder's interest, ie before the bonus issue the shareholder had 200 shares worth a total of $186,000 and after the issue he had 191,200 shares worth a total of $186,000. The taxpayer then sold the 191,200 shares for $188,000, meaning that he had made a profit on the entire transaction of $2000. He claimed, however, that in determining his profit or loss figure, he should be allowed to deduct not only the cost of purchasing the original shares, but the par value of the bonus shares, namely $191,000. He claimed, in other words, that the bonus shares which had cost him nothing should for tax purposes be deemed to have cost him $191,000. The High Court (Barwick CJ, Menzies and Gibbs JJ, Stephen J dissenting) agreed. The transaction therefore gave rise to a tax loss of $189,000.

133 (1973) 131 CLR 409.

134 Interestingly, it could therefore be argued that while there was no justification for making the anti-Curran part of the legislation which was eventually introduced retrospective to 1977, there was a justification for making it retrospective to 1974.

135 H Reps Deb 1977, Vol 106 at 54.

136 See Treasurer Howard's Second Reading Speech, H Reps Deb 1978, Vol 108 at 1245.

137 Editorial, (1978) 8 Taxpayer 99.

138 See discussion below.

139 See Freiberg, A “Ripples from the Bottom of the Harbour: Some Social Ramifications of Taxation Fraud” (1988)Google Scholar 12 Crim LJ 136 at 139.

140 Ibid at 143.

141 Ibid at 160.

142 Report of Inspectors P W McCabe and D] Lafranchi Appointed to Investigate the Particular Affairs of Navillus Pty Ltd and 922 Other Companies (1982).

143 The announcement is reprinted in IC F Spry QC, “Retrospective Legislation for Company Tax” (1982) 11 Australian Tax Review 152. The original Bill introduced on 23 September 1983 was withdrawn a month later, to be replaced with a more extensive Bill enabling recovery of unpaid company tax from promoters as well as vendors. The following legislation was eventually enacted: Taxation (Unpaid Company Tax) Assessment Act 1982, Taxation (Unpaid Company Tax – Promoters) Act 1982, Taxation (Unpaid Company Tax – Vendors) Act 1982, Taxation (Unpaid Company Tax) (Consequential Amendments) Act 1982.

144 The second date being the date of commencement of the Crimes (Taxation Offences) Act 1980 (Cth).

145 Finance Minister Dawkins, “Retrospective legislation against tax avoidance”, Press Release of 28 April 1983, reprinted in (1983) 17 Taxation in Australia 1006 at 1006-1007.

146 The logic being that if the profits had been distributed to the shareholders they would have been taxable as income; instead they were distributed in the then non-taxable capital form of consideration for the shares.

147 For a list of the defeated Bills, see A Freiberg, above n 139 at 166. The Australian Financial Review commented that the defeat of the first such Bill introduced by the Government was “a victory for selfishness and a defeat for fair play and social equity”: Editorial, 3 June 1983.

148 The Bill lapsed on the dissolution of Parliament and was re-introduced on 22 February 1985.

149 Further warning was given in Finance Minister Dawkins's statement of 28 April 1983.

150 Sen Deb 1985, Vol 107 at 60.

151 The estimated figures being $9.5M out of $10M: see Treasurer Keating, H Reps Deb 1985, Vol 140 at 961.

152 H Reps Deb 1985, Vol 140 at 961. The Government suffered a similar rebuff with the Income Tax Assessment Amendment Act (No 5) 1984 (Cth), which introduced an anti-avoidance measure with respect to certain employee superannuation funds. The Bill for the Act had an effective date of 1 July 1977, but this was amended in the Senate. Two arguably retrospective taxation statutes were, however, passed in the period examined; neither statute was concerned with avoidance. The Petroleum Resource Rent Tax Assessment Act 1987 (Cth) had, according to the SBC, retrospective effect in that “assessable receipts derived by a person (and eligible expenditure incurred by a person) after [1 July 1984] may be taken into account in determining a person's liability to tax … even though liability will only be imposed on profits of a year of tax, being a financial year commencing on or after 1 July 1986“: SBC, First to Tenth Reports of 1987 (Parliamentary Paper No 171 of 1987) at 57. A similarly backward-looking statute is the Customs Tariff (Stand-By Duty) Act 1985 (Cth), which imposes duty on oil imported by refiners who fail to take up their quota of Australian crude oil under the Crude Oil Marketing Partial Allocation Scheme for a period of three or six consecutive months (depending on the source of the oil). Although no duty would be imposed until the date of assent, the period of three or six consecutive months could start to run three or six months before that date: the potential for the Act to have a retrospective effect therefore only lasted for six months from the date of Assent.

153 while the “mass” tax avoidance industry of the 1970s is clearly dead, reports of the health of the industry are still mixed – and naturally clouded by definitional problems about industry and avoidance.

154 The use of metaphors in answering this question usually casts more light on the beliefs of the writer than it does on the merits of the debate. The use of a military metaphor makes retrospectivity seem eminently reasonable. For example: “For years a battle of manoeuvre has been waged between the legislature and those who are minded to throw the burden of taxation off their shoulders on to those of their fellow subjects. In that battle the legislature has often been worsted by the skill, determination and resourcefulness of its opponents … It would not shock us in the least to find that the legislature has determined to put an end to the struggle by imposing the severest of penalties. It scarcely lies in the mouth of the taxpayer who plays with fire to complain of burnt fingers … The fact that the section has to some extent a retroactive effect appears to us of no importance when it is realised that the legislation is a move in a long and fiercely contested battle with individuals who well understand the rigour of the contest”: Lord Howard de Walden v Inland Revenue Commissioners [1942] 1 KB 389 at 397-398 per Lord Greene MR. Use of a games metaphor, on the other hand, makes a legislature which resorts to retrospectivity sound rather like a cad and a cheat. For example, M[I]t is suggested that there is an important distinction between either or both sides taking advantage of the existing rules, on the one hand, and one side not letting the other know what the rules are, on the other“: HReicher, “Legislation by Press Release” (1978) 7 Australian Tax Review 31 at 32. Just not cricket indeed! The adoption of one or other metaphor, then, prejudges the issue: the importance of winning a war justifies considerable sacrifice, including the sacrifice of certain liberties; the importance of a game lies in the manner in which it is played as much as in the eventual outcome.

155 Bloom, D H “‘Bottom of the harbour’ legislative action” (1982)Google Scholar 56 ALJ 668 at 672; see also I C F Spry QC, above n 143 at 158.

156 H Reps Deb 1978, Vol 108 at 1245.

157 Treasurer Howard, Press Release of 25 July 1982, reprinted in (1982) 11 Australian Tax Review 152 at 154.

158 Ibid at 156.

159 Shadow Treasurer Willis, H Reps Deb 1978, Vol 109 at 1902. He argued that all of the schemes covered by the legislation should be targeted retrospectively.

160 jYiis was how the ALP Opposition characterised the Government's actions, claiming that they were solely “motivated by concern at the enormity of the prospective loss of revenue”: see Shadow Treasurer Willis, H Reps Deb 1978, Vol 109 at 1901.

161 Starting with Calder v Bidl 3 US (3 Dall) 386 (1798).

162 Article I, s 9, cl 3: “No Bill of Attainder or ex post facto law shall be passed” by Congress; art I, s 10, cl 1 places the same restriction on State legislatures.

163 Russell, D “Recent Amendments to Taxation Legislation” (1981)Google Scholar 15 Taxation in Australia 664 at 670.

164 Senator Evans, Sen Deb 1979, Vol 82 at 618.

165 We will not be considering here statutes which are effective from a date on or after the date of the Bill's introduction, but before the date upon which it receives the Royal Assent. Examples of such statutes include the Tobacco Charge (Nos 1 to 3) Amendment Acts 1982 (Cth), Sales Tax Laws Amendment Act (No 3) 1990 (Cth), Conservation, Forests and Lands Acts (Amendment) Act 1989 (Vic), and the Fisheries (Abalone Licence Charges) Act 1990(Vic). The reason for not considering them is that the degree of retrospectivity involved is usually very small, and the unfairness which is arguably involved in forcing people to rely on the inherently less specific terms of a press release is not present when one is forcing them to rely on the terms of a Bill.

166 The reports of the SBC are neither intended for nor particularly suited to the collection of data, but the number of Acts identified by the Committee which fall into this category grew from one in 1982 to six in 1987, and has remained fairly constant since.

167 See, for instance,H Reicher, above n 154; SBC, Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 11-17; Sir Anthony Mason, “The state of the Australian judicature” (1989) Law Institute Journal 974 at 977; Law Council of Australia, “Legislation by Media Release”, Media Release of 18 July 1988; Law Council of Australia, “Submission on Legislation by Media Release”, attachment to Media Release of 18 July 1988; Law Council of Australia, “Views of Taxation Commissioner Condemned”, Media Release of 5 October 1988; G de Q Walker, above n 4 at 320.

168 Advance Australia Logo Protection Act 1984 (Cth).

169 Bounty (Two-Stroke) Engines Act 1984 (Cth) and Bounty and Subsidy Legislation Amendment Act 1988 (Cth). In the latter case all known manufacturers of agricultural tractors in Australia were notified by telex of the removal of the bounty.

170 Export Market Development Grants Amendment Act 1985 (Cth).

171 Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth); in this case it was merely necessary to inform the Northern Territory Government that any such alienation would be of no effect.

172 Foreign Takeovers Amendment Act 1989 (Cth). Here the announcement took the form of “detailed corrigenda to the foreign investment guide-lines” which the Foreign Investment Review Board treated as if they were already law: see SBC, First to Twenty-First Reports of 1989 (Parliamentary Paper No 466 of 1989) at 63.

173 See Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 13-14; see also the Committee's comments on the Taxation Laws Amendment (Company Distribution) Act 1987 (Cth), contained in SBC, First to Tenth Reports of 1987 (Parliamentary Paper No 171 of 1987) at 180-181. It is hard to deny this contention, given the large number of Acts, in addition to the Acts discussed in greater detail in this part, which were enacted in order to give effect to a press release, including the Sales Tax (Exemptions and Classifications) Amendment Act 1984, Taxation Laws Amendment Act (No 2) 1985, Australian Capital Territory Tax (Transfers of Marketable Securities) Act 1986, Income Tax Assessment Amendment (Research and Development) Act 1986, Taxation Laws Amendment Act 1986, Taxation Laws Amendment Act (No 2) 1986, Taxation Laws Amendment Act (No 4) 1986, Taxation Laws Amendment Act (No 3) 1987, Taxation Laws Amendment Act (No 2) 1988, Sales Tax (Exemptions and Classifications) Amendment Act 1989, Taxation Laws Amendment Act (No 4) 1989, and Taxation Laws Amendment (Foreign Income) Act 1990.

174 Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 13. The Law Council of Australia recommended that not only must the legislation be of an anti-avoidance nature, but that the potential revenue loss must be so great and the scheme so blatant, artificial and contrived, that it is imperative that the scheme be terminated at once: “Submission on Legislation by Media Release”, attachment to Media Release of 18 July 1988.

175 Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 13.

176 Excise Act 1901, s 114. The Customs Act 1901 contains a similar provision. Acts falling within this convention include the Bass Strait Freight Adjustment Levy Amendment Act 1985, Customs Tariff Amendment Act 1985, Excise Tariff Amendment Act 1985, Customs Tariff Amendment Act 1986, and the Excise Tariff Amendment Act 1986.

177 Law Council of Australia, “Legislation by Media Release”, Media Release of 18 July 1988. See also SBC, Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 12-13 and Sir Anthony Mason, above n 167 at 977.

178 SeeRaz, J, “The Rule of Law and its Virtue” (1977)Google Scholar 93 LQR 195.

179 SBC, Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 12.

180 In fact the Broadcasting (Ownership and Control) Act 1987 (Cth), eventually substituted a “60% reach rule” for the old rule. This reduction was the result of a deal between the ALP and the National Party to get the Bill through the Senate. This Act was the focus of a major condemnationof the practice in the SBC's Annual Report 1986-87 at 14-17. The Broadcasting (Ownership and Control) Act 1988 (Cth) was condemned by the SBC on the same grounds: see First to Eighteenth Reports of 1988 (Parliamentary Paper No 402 of 1988) at 57.

181 For a description of these events see P Chadwick, Media Mates: Carving up Australia's Media (1989) at xix-xlvii.

182 Except, of course, to avoid Parliamentary debate on its policy.

183 The Advance Australia Logo Protection Act 1984, Export Market Development Grants Amendment Act 1985, and the Aboriginal Land Rights (Northern Territory) Amendment Act 1985 could probably all be justified on this basis, as could most anti-avoidance taxation measures.

184 The latter kind of situation most frequently occurs in the tax area.

185 Sir Anthony Mason, above n 167 at 977. See also SBC, Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 12-13.

186 See Law Council of Australia, “Views of Taxation Commissioner Condemned”, Media Release of 5 October 1988.

187 See, for instance, Sir Anthony Mason, above n 167 at 977; SBC, Annual Report 1986-87 (Parliamentary Paper No 443 of 1987) at 12. Reicher suggests that Governments might deliberately make vague announcements on the assumption that “the threat will be more effective than the deed itself”: see H Reicher, above n 154 at 32. There is no evidence, however, that this has ever been done.

188 Reports on the Sales Tax (Exemptions and Classifications) Amendment Bill (No 2) 1986 and Taxation Laws Amendment Bill (No 5) 1986 (Parliamentary Paper No 137 of 1987) at para 3.13.

189 Ibid at para 3.14.

190 Mr Cohen, H Reps Deb 1987, Vol 155 at 3950. A similar charge was made by the Opposition (but not the SBC) in relation to the announcements foreshadowing the Taxation Laws Amendment (Superannuation) Act 1989 (Cth). It was objected that following the superannuation changes announced in the May 1988 Economic Statement there had been “almost on a monthly basis … constant changes, through press release, to the ball game”: Mr Connolly, H Reps Deb 1989, Vol 166 at 2375. The strength of this charge is difficult to judge, but one can at least say that it did not convince the Australian Democrats who ensured the Bill's passage through the Senate.

191 H Reicher, above n 154 at 38.

192 Senator Walsh, Sen Deb 1988, Vol 129 at 2216.

193 In three other cases, however, the Parliament enacted, without amendment, legislation where the delay between announcement and introduction was as great as, or even greater than, with the Taxation Laws Amendment Act (No 4) 1988. These were the Income Tax Assessment Amendment Act 1984, the Sales Tax Laws Amendment Act 1985 and the Taxation Laws Amendment Act 1985. Each of these Acts implemented announcements made by the former Fraser Government, which may explain their passage through the Senate.

194 SeeDodd, T, “The perils of the press release” Australian Financial Review 29 March 1989Google Scholar.

195 See Gray v Federal Commissioner of Taxation (1989) 20 ATR 649.

196 See comments of Nolan, Mr Brian Second Commissioner of Taxation, quoted by Senator Short, Sen Deb 1987, Vol 121 at 3304.Google Scholar

197 Reports on the Sales Tax (Exemptions and Classifications) Amendment Bill (No 2) 1986 and Taxation Laws Amendment Bill (No 5) 1986 (Parliamentary Paper No 137 of 1987) at para 3.13.

198 The only State with an equivalent provision and committee is New South Wales, with s 39(1) of the Interpretation Act 1987 (NSW) and the Regulation Review Committee of the Parliament of New South Wales, which was established under the Regulation Review Act 1987 (NSW). The Legal and Constitutional Affairs Committee of the Parliament of Victoria also, among other things, scrutinises subordinate legislation. For further information about parliamentary scrutiny of delegated legislation, see M Allars, Introduction to Australian Administrative Law (1990) at 340-345. On the interpretation of potentially retrospective regulations, see D C Pearce, Delegated Legislation in Australia and New Zealand (1977) at paras 641-650.

199 Senate Standing Committee on Regulations and Ordinances, Eighty-Sixth Report (Parliamentary Paper No 93 of 1990) at 1.

200 Other examples of specifically retrospective regulatory powers are provided by the Taxation Laws Amendment (Foreign Income) Act 1990 (Cth), which allowed regulations to be made with effect from or after the date upon which anti-avoidance accruals tax measures were announced; Parliamentary Contributory Superannuation Amendment Act 1983 (Cth); Occupational Superannuation Standards Act 1987 (Cth); and the Foreign States Immunity Act 1985 (Cth), which confers certain immunities from action on foreign states and their representatives, but allows the Governor-General to make regulations restricting these immunities and such regulations may be expressed to apply to proceedings which have already been commenced. This gave effect to a recommendation of the Australian Law Reform Commission, which argued that a purely prospective power would hamper the ability of the Government to negotiate claim settlement agreements with other countries: Law Reform Commission, Foreign State Immunity, (Report No 24,1984) at 162.

201 Senate Standing Committee on Regulations and Ordinances, Eighty-Third Report (1988) at 41.

202 Eighty-Fifth Report (1989) at 30. Emphasis in original.

203 See Eighty-Third Report at 39-41, Eighty-Fifth Report at 29-31 and Eighty-Sixth Report at 26.

204 Eighty-Third Report at 39-40.

205 See D C Pearce and R S Geddes, above n 12, ch 10.

206 Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69; quoted approvingly by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267.

207 (1957) 96 CLR 261.

208 Ibid at 285.

209 Ibid.

210 Ibid, particularly at 286-291 per Fullager J.

211 Maxwell v Murphy (1957) 96 CLR 261 at 278 per Williams J, quoted approvingly by Gibbs J in Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 at 241.

212 1986) 70 ALR 357.

213 It was essentially on this ground that the United States Supreme Court in Graham v Goodcell 282 US 409 at 430; 75 Law Ed 415 at 440 (1930) held thata statute which allowed the collection of tax debts which had become statute-barred was not in breach of the due process clause of the United States Constitution.

214 Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55; 78 ALR 641.

215 See Minister for Home and Territories v Smith (1924) 35 CLR 120, Realty Development & Mortgage Co Ltd v Londish (1967) 87 WN (Pt 1) (NSW) 92, and Re Hassell; ex parte Pride (1984) 52 ALR 181, all of which are summarised in D C Pearce and R S Geddes, above n 12 at 190.

216 See D C Pearce and R S Geddes, above n 12 at 171-172.

217 Another procedural statute is the Bankruptcy Amendment Act 1987 (Cth) which inserted a new Division 4A into the Bankruptcy Act 1966 (Cth), allowing for the making of certain orders in relation to the property of a legal entity controlled by a bankrupt. The new division applies “in relation toa bankrupt in respect of a bankruptcy whenever the date of the bankruptcy occurred”: s 51(2). This would mean that the consequences of a declaration of bankruptcy may have differed from the consequences which were foreseeable at the time of the declaration. It is arguable that this is not a case of retrospectivity at all, however, on the grounds that the future consequences depended not on a prior event – a declaration of bankruptcy – but on a person's status as a bankrupt: see E A Driedger, above n 11 at 272-275.

218 Nor does anyone object when the Commonwealth imposes an adverse effect upon itself or its statutory authorities. One statute which did this was the Commonwealth Borrowing Levy Amendment Act 1989, which retrospectively added Aerospace Technologies of Australia Pty Ltd and the Civil Aviation Authority to the list of bodies liable to pay the borrowing levy under the Commonwealth Borrowing Levy Act 1987.

219 Other examples are the Income Tax Assessment Amendment (No 5) 1982 (Cth), retrospective conferral of a “retention allowance” to private companies in respect of their distributable income; Income Tax Assessment Amendment Act (No 3) 1984 (Cth), widening of an exemption; Customs and Excise Legislation Amendment Act (No 3) Act.1989 (Cth), extension of rebate on diesel fuel to certain activities; Sales Tax Laws Amendment Act (No 3) 1990 (Cth), removal of sales tax from certain computer equipment where purchased by registered manufacturers; Taxation Laws Amendment Act (No 5).1990(Cth), widening of the exemption from Capital Gains Tax for personal homes, retrospective to the introduction of the CGT.

220 Other examples include the Judicial and Statutory Officers Remuneration Legislation Amendment Act 1989 (Cth), which made minor and beneficial amendments to salary provisions; Social Security and Veterans' Affairs Legislation Amendment Act 1989 (Cth); Social Security Legislation Amendment Act 1990 (Cth); and the Veterans' Affairs Legislation Amendment Act 1990 (Cth) which backdated an increase in allowances.

221 Road Safety (Miscellaneous Amendments) Act 1989 (Vic).