Legislative Assembly for the ACT: 1999 Week 4 Hansard (21 April) . . Page.. 1030 ..
MR BERRY (10.52): I move:
Page 2, line 15, clause 4, at the end of proposed new section 35A, add the following subsection:
"(2) Subsection (1) applies in relation to an offence against this Part whether it was committed before or after the commencement of this section.".
Mr Speaker, this amendment arises from some advice I received from the Parliamentary Counsel's Office in relation to a matter which came before the High Court of Australia. That was the matter Rodway v. the Queen, a case in Tasmania which was appealed to the High Court. In the decision of the High Court, the court raised the issue of the application of the retrospective operation of procedural matters. The advice that I received from the Parliamentary Counsel's Office was that it would be prudent to pursue some amendments to ensure that challenges to this retrospective operation of those procedural matters could not be tested in the future and to make clear the intent of the amendments to the legislation which were brought before this chamber.
Mr Speaker, the amendment to the Occupational Health and Safety Act adds a new section 35A to make it clear in the legislation what the intent of this Assembly is so that there can be no argy-bargy in the courts in future in an assessment of its application, if that were to be pursued. That is not to say, Mr Speaker, that the amendments would not stand in the courts if they were left as they are, but this is a prudent measure to make sure that they do stand and that we do not have wasteful court cases in the future in relation to this particular point.
MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (10.55): Mr Speaker, the Government, as we indicated earlier in the debate on a previous occasion, supports the Bill which has just been agreed to in principle by the Assembly but opposes most vehemently the amendment which has been put forward by Mr Berry and the amendment which will be put forward in relation to the Dangerous Goods (Amendment) Bill.
Mr Berry indicated that for a surfeit of caution he was putting forward the amendment to make it clear that this Bill did have retrospective application. I might point out that, although that advice came from Parliamentary Counsel, in fact it originated in my department. My department examined the Bill that he had brought forward to this place and officers in my department contacted Parliamentary Counsel and pressed the point that the Rodway case would make this amendment to the legislation ineffective in a retrospective sense unless it was further amended. That is the origin of the amendment that Mr Berry has brought forward today.