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Legislative Assembly for the ACT: 2007 Week 1 Hansard (28 February) . . Page.. 109..


MR SESELJA (continuing):

Brand Depot Pty Ltd—sought under section 276 of the act to have that decision reviewed by the Administrative Appeals Tribunal.

Upon a challenge to the jurisdiction of the AAT to entertain the appeal, CPP and the other companies sought from the Supreme Court a declaration that certain laws were invalid. The Supreme Court granted one of the declarations sought. The citation is Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority [2006], per Gray J. The result was that the AAT could proceed to entertain the appeal by CPP, subject to any appeal from the decision of Gray J. It appears that an appeal to the Court of Appeal is on foot. The purposes of this appeal is to change the law, with retrospective effect, so that any body, including the Supreme Court or the AAT, would be obliged to find that the AAT no longer had jurisdiction to entertain the appeal by CPP.

It is clear that this particular piece of legislation is designed to address the issue or to go after one particular appellant, broadly the Capital Airport Group. It is essentially around the EpiCentre. Even though it is not designed specifically in those terms, that is what has prompted it and that is what it is targeted at. In fact, if there were any doubt about that, one would need only to read the minister's press release on the subject, which specifically identifies the Capital Airport Group.

We have a number of levels of concern. The scrutiny of bills committee has looked at this matter and raised a number of issues. One is generally the issue of retrospectivity, and it is retrospectivity which adversely impacts upon people's rights. The general principle at law is that a person should know what the law is at any given time and that retrospective laws should only be used where there is overwhelming public interest. It is in very rare circumstances that retrospective legislation which affects adversely people's rights is acceptable. It is clear that we are talking here about the erection of a shopping centre. That is not a sufficient overwhelming public interest that would justify such significant derogation from the usual principle, which is that laws apply prospectively.

Mr Speaker, in scrutiny report 12 of the Sixth Assembly, concerning the Children and Young People Amendment Bill, the committee said:

The essential idea of a legal system is that current law should govern current activities. ... Retrospective legislation "is contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the existing law".

That statement points to one way in which retrospective law is unfair; that is, that it disappoints the expectations of those who assumed that the quality of their past acts would be assessed on the basis of the law as it then stood. There have been all sorts of analyses of it. Tim O'Dwyer, in Queensland Lawyers Weekly, described it thus:

The New South Wales Bar Association describes retrospective legislation as almost always unfair per se. The ACT Law Society says that in general it is opposed to retrospective legislation.


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