Legislative Assembly for the ACT: 2002 Week 3 Hansard (5 March) . . Page.. 575 ..
MR STANHOPE (continuing):
provisions have been included in laws that we have made. Nevertheless, I think that, as a rule, retrospectivity in relation to the criminal law should be avoided. I do not believe this is a circumstance where we should ignore that basic principle.
I am not sure how actively the police are continuing to investigate the particular events that were of concern last year. I would be surprised if those issues are still being actively investigated. I believe it is hardly likely, at this stage, that the offenders will be discovered. I think that, in terms of the force and purpose of the law we are debating today, we should look at it prospectively. We need to accept that extremely antisocial acts have been done in the past that did deserve a higher penalty than they would have attracted, had the perpetrators been discovered.
The government will not support a retrospective provision in this instance.
MR HUMPHRIES (Leader of the Opposition) (4.10): Mr Speaker, I want to support Mr Stefaniak in his amendment on this matter. It is true that retrospectivity is rarely incorporated in legislation, particularly in respect of criminal matters; yet there must be some circumstances where it is warranted. I would have thought that, given the enormous problems occasioned to this community following the incidence of the September 11 attacks, this is a case where one would contemplate the appropriateness of using this kind of power.
A clear indication was given to the community, in widely publicised terms, from 16 and 17 October-not just in the ACT but, I understand, in every jurisdiction in Australia-by the governments of every jurisdiction of Australia, that there was a need to amend legislation in these terms.
The fact that nobody in the ACT has been charged with this offence does not preclude the real possibility that a person may, at some future point, be arrested for an offence committed before today.
Of course, they cannot be arrested for an offence committed before today because, if we do not retrospectively apply the law to 16 or to 17 October, the legislation will not be capable of bringing a charge against a person who has committed an offence between then and today-or between then and whenever this legislation is actually gazetted. That would be unfortunate, because that appears to be the period during which the bulk of these offences have been committed.
I wonder how consistent the government's position here is with that of Labor governments elsewhere in Australia and the Labor opposition in the federal parliament. I am happy to be corrected on this, but my impression was that the Labor opposition in the federal parliament was happy to support the legislation applying from 16 October. Maybe that is also the case with the state Labor governments. I will check on that.
It would be ironic if this was the only jurisdiction in Australia where it did not apply from the date from which Australian governments uniformly decided that this legislation should be effective.