ETROSPECTIVE OPERATION OF LAW:

In Maxwell on the Interpretation of Statutes, 12th Edn. the statement of law in this regard is stated
thus:

"Perhaps no rule of construction is more firmly established than thus - that a retrospective
operation is not to be given to a statute so as to impair an existing right or obligation, otherwise
than as regards matters of procedure, unless that effect cannot be avoided without doing violence
to the language of the enactment. If the enactment is expressed in language which is fairly
capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact,
two aspects, for it, "involves another and subordinate rule, to the effect that a statute is not to be
construed so as to have a greater retrospective operation than its language renders necessary. "

In Francis Bennion's Statutory Interpretation, 2nd Edn, the statement of law is stated as follows :

"The essential idea of legal system is that current law should govern current activities.
Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the
general body of law to the circumambient air. Clumsy though these images are, they show the
inappropriateness of retrospective laws. If we do something today, we feel that the law applying
to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we
believe, is the nature of law. Dislike of ex-post facto law is enshrined in the United States
Constitution and in the Constitution of many American States, which forbid it. The true principle
is that lex prospicit non respicit (law looks forward not back). As Willes, J. said 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 transaction carried on upon the faith of the then existing law."

In Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 the SC observed as thus : (Para
25 of AIR) "The golden rule of construction is that, in the absence of anything in the enactment to
show that it is to have retrospective operation, it cannot be so construed as to have the effect of
altering the law applicable to a claim in litigation at the time when the Act was passed."

In Smt. Dayawati v. Inderjit (AIR 1966 SC 1423, in Para 10, it is held thus :

"Now as a general proposition, it, may be admitted that ordinarily a Court of appeal cannot take
into account a new law, brought into existence after the judgment appealed from has been
rendered, because the rights of the litigants in an appeal are determined under the law in force
at the date of the suit. Even before the days of Coke whose maxim - a new law ought to be
prospective, not retrospective in its operation - is off-quoted, Courts have looked with dis-favour
upon laws which take away vested rights or affect pending cases. Matters of procedure are,
however, different and the law affecting procedure is always retrospective. But it does not mean
that there is an absolute rule of inviolability of substantive rights. If the new law speaks in
language, which, expressly or by clear intendment, takes in even pending matters, the Court of
trial as well as the Court of appeal must have regard to an intention so expressed, and the Court
of appeal may give effect to such a law even after the judgment of the Court of first instance."

In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : (1994 AIR SCW 3699 :
AIR 1994 SC 2623 : 1995 Cri LJ 517) this Court laid down the ambit and scope of an amending
Act and its retrospective operation as follows :

"(i) A statute which affects substantive rights is presumed to be prospective in operation unless
made retrospective, either expressly or by necessary intendment, whereas a statute which
merely affects procedure, unless such a construction is textually impossible, is presumed to be
retrospective in its application, should not be given an extended meaning and should be strictly
confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of
action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the
result would be to create new disabilities or obligations or to impose new duties in respect of
transactions already accomplished:

(v) A statute which not only changes the procedure but also creates new rights and liabilities
shall be construed to be prospective in Operation unless otherwise provided, either expressly or
by necessary implication."

In K. S. Paripoornan v. State of Kerala (1994) 5 SCC 593 @ p. 636 : (1995 AIR SCW 1004 : AIR
1995 SC 1012), this Court while considering the effect of amendment in the Land Acquisition Act
in pending proceedings held thus in Para 47 thereof as:

‘‘...In the instant case we are concerned with the application of the provisions of Sub-sec. (1-A)
of S.23 as introduced by the Amending Act to acquisition proceedings which were pending on
the date of commencement of the Amending Act. In relation pending proceedings, the approach
of the Courts in England is that the same are unaffected by the changes in the law so far as
they relate to the determination of the substantive rights and in the absence of a clear indication
of a contrary intention in an amending enactment, the substantive rights of the parties to an
action fall to be determined by the law as it existed when the fiction was commenced and this is
so whether the law is change before the hearing of the case at the first instance or while an
appeal is pending ( Halsbury's Laws if England, 4th Edn. Vol. 44, para 922)."

In State of M.P. and another, vs.. G.S. Dall & Flour Mills, AIR 1991 SC 772, The Apex Court in
Para 21 of the judgment the Apex Court has observed that

"the notification of 3/71187 amending the 1981 notification with retrospective effect so as to
exclude what may be described in brief as 'traditional industries' though, like Rule 14 of the
deferment rules, the exclusion extends' even to certain other non-traditional units operating in
certain situations. Though this notification purports to be retrospective, it cannot be given such
effect for a simple reason. We have held that the 1981 notification clearly envisages no
exclusion of any industry which fulfils the terms of the notification from availing of the exemption
granted under it. In view of this interpretation, the 1987 amendment has the effect of rescinding
the exemption granted by the 1981 notification in respect of the industries mentioned by it. S. 12
is clear that, while a notification under it can be prospective or retrospective, only prospective
operation can be given to a notification rescinding an exemption granted earlier. In the
interpretation we have placed on the notification, the 31, 7 87 notification cannot be treated as
one merely clarifying an ambiguity in the earlier one and hence capable of being retrospective; it
enacts the rescission of the earlier exemption and, hence, can operate only prospectively. It
cannot take away the exemption conferred by the earlier notification".

In the case of Mithilesh Kumari and another, vs. Prem Behari Khare, AIR 1989 SC 1247, the Apex
Court in Para 21 of its judgment as:

"A retrospective operation is not to be given to a statute so as to impair existing right or

obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided
without doing violence to the language of the enactment. Before applying a statute
retrospectively the Court has to be satisfied that the statute is in fact retrospective. The
presumption against retrospective operation is strong in cases in which the statute, if operated
retrospectively, would prejudicially affect vested rights or the illegality of past transaction, or
impair contracts, or impose new duty or attach new disability in respect of past transactions or
considerations already passed, However, a statute is not properly called a retrospective statute
because a part of the requisites for its action is drawn from a time antecedent to its passing. The
general scope and purview of the statute and the remedy sought to be applied must be looked
into and what was the former state of law and what the legislation contemplated has to be
considered. Every law that impairs or takes away rights vested agreeably to existing laws is
retrospective, and is generally unjust and may be oppressive. But laws made justly and for the
benefit of individuals and the community as a whole may relate to a time antecedent to their
commencement. The presumption against retrospectivity may in such cases be rebutted by
necessary implications from the language employed in the statute. It cannot be said to be an
invariable rule that a statute could not be retrospective unless so expressed in the very terms of
the section which had to be construed. The question is whether on a proper construction the
legislature may be said to have so expressed its intention".

In the case of Hukam Chand etc. vs.. Union of India and others, AIR 1972 SC 2472 the Apex
court had occasion to deal with the following aspects of the subject under context and held:

In the Displaced Persons (Compensation and Rehabilitation) Act (44 of 1954), S.40 & 49 of it.
There is nothing in S. 40 from which power of the Central Government to make retrospective
rules may be inferred. In the absence of any such power, the Central Government acted in
excess of its power in so far as it gave retrospective effect to the Explanation to Rule 49. The
Explanation could not operate retrospectively and would be effective for the future from the date
it was added. - Paras 5, 6, 7, 10 of the judgment.

The fact that the rules framed under the Act have to be laid before each House of Parliament
would not confer validity on a rule if it is made not in conformity with S. 40 of the Act. The laying
referred to in S. 40 (3) is of the category of 'laying subject to negative resolution' because the
above sub-section contemplates that the rule would have effect unless modified or annulled by
the House of Parliament. The act of the Central Government in laying the rules before each
House of Parliament would not, however, prevent the courts from scrutinizing the validity of the
rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the
rule making power of the Central Government. - Para 11 of the judgment.

CONSTITUTIONAL PROVISO:

Constitution of India, Art.245 - Subordinate legislation - Extent of power - Rule making authority
has to act within limits of power delegated to it. Unlike Sovereign Legislature which has power to
enact laws with retrospective operation, authority vested with the power of making subordinate
legislation has to act within the limits of its power and cannot transgress the same. The initial
difference between subordinate legislation and the statute laws lies in the fact that a subordinate
law making body is bound by the terms of its delegated or derived authority and that court of law,
as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions
precedent to the validity of the rules have been fulfilled. Further, retrospective effect cannot be
given to a subordinate legislation unless it is authorized by the parent statute or a validating

statute.

THE CONCEPT OF ULTRA VIRES: In India, when the Legislature delegates legislative power to
an administrative authority without offering any guide lines, the validity of the relevant statute may
be attacked on following grounds, viz;
a. The statute offends against Arts. 14 & 19 of the Constitution on the ground of unreasonable or
arbitrary on the part of the legislature to confer uncontrolled discretionary power upon an
administrative authority.
b. That the statute is invalid because of excessive delegation of abdication of legislative power by
the legislature.
c. retrospective effect cannot be given to a subordinate legislation unless it is authorized by the
parent statute or a validating statute

CONCLUSION:

It is crystal clear that the Statutes dealing with substantive rights - is prim facie / generally
prospective unless it is expressly or by necessary implications made to have retrospective
operation. But the rule in general is applicable where the object of the statute is to affect the
vested rights or impose new burdens or to impair existing obligations. Statutes dealing with
procedure - In contrast to statutes dealing with substantive rights, statutes dealing with merely
matters of procedure are presumed to retrospective unless such a construction is textually
inadmissible. According to Lord Dennig:

"The rule that an Act of Parliament is not be given retrospective effect applies only to statutes
which affect vested rights. It does not apply to statutes which only alter the form of procedure or
the admissibility of evidence, or the effect which the courts give to evidence"

In the light of the above judgments, and the principles laid down therein that the new Act / Rule
affecting, existing rights or creating new obligations, is presumed to be prospective only.

This article is not intended to be a definitive analysis of legislative or other changes and
professional advice should be taken before any course of action is pursued.

INTERPRETATION OF STATUTES

Justice A.K. Srivastava, Judge, Delhi High Court at New Delhi

Words spoken or written are the means of communication. Where they are possible of giving one and
only one meaning there is no problem. But where there is a possibility of two meanings, a problem
arises and the real intention is to be sorted out. It two persons communicating with each other are
sitting together; they can by subsequent conversation clear the confusion and make things clear. But
what will happen if a provision in any statute is found to convey more than one meaning? The Judges
and the Lawyers whose duty it is to interpret statutes have no opportunity to converse with the
Legislature which had enacted a particular statute. The Legislature, after enacting statutes becomes
functus officio so far as those statutes are concerned. It is not their function to interpret the statutes.
Thus two functions are clearly demarcated. Legislature enacts and the Judges interpret.
The difficulty with Judges is that they cannot say that they do not understand a particular provision of an
enactment. They have to interpret in one way or another. They cannot remand or refer back the matter
to the Legislature for interpretation. That situation led to the birth of principles of interpretation to find
out the real intent of the Legislature. Consequently, the Superior Courts had to give us the rules of
interpretation to ease ambiguities, inconsistencies, contradictions or lacunas. The rules of interpretation
come into play only where clarity or precision in the provisions of the statute are found missing.

Good enactments are those which have least ambiguities, inconsistencies, contradictions or lacunas. Bad
enactments are gold mine for lawyers because for half of the litigation the legislative draftsmen are
undoubtedly the cause.

The purpose of the interpretation of the statute Is to unlock the locks put by the Legislature. For such
unlocking, keys are to be found out. These keys may be termed as aids for interpretation and principles
of interpretation.

In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : (1994 AIR SCW 3699 :
AIR 1994 SC 2623 : 1995 Cri LJ 517) this Court laid down the ambit and scope of an amending
Act and its retrospective operation as follows :

"(i) A statute which affects substantive rights is presumed to be prospective in operation unless
made retrospective, either expressly or by necessary intendment, whereas a statute which
merely affects procedure, unless such a construction is textually impossible, is presumed to be
retrospective in its application, should not be given an extended meaning and should be strictly
confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of
action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the
result would be to create new disabilities or obligations or to impose new duties in respect of
transactions already accomplished:

(v) A statute which not only changes the procedure but also creates new rights and liabilities
shall be construed to be prospective in Operation unless otherwise provided, either expressly or
by necessary implication."

&.P. S'a()e! *s. S%a%e "+ UP ,AIR 1- - AlA. HC /

 igh 1ourt held that intention of legislation is mostimportant argument to determine the retrospective
operation of statues if it expressly provides for retrospectiveoperation then effect must be given to
same otherwise not.

&0(a #3a! M"'a(%0 *s. U P ,AIR 1-41 O!0ssa HC/

n this case =rissa high court heavily relied uponintention of legislation & regarded as foundation to
gather the intention of legislators about retrospectiveoperation of the statutes.

Retrospective Laws

Contents The common law 55 Protections from statutory encroachment 57 Australian Constitution 57
Principle of legality 58 International law 59 Bills of rights 59 Justifications for encroachments 59

The common law 7.1 People should generally not be prosecuted for conduct that was not an offence at
the time the conduct was committed. If on Wednesday it is not an offence to go fishing at Bondi Beach,
then people will usually expect that a law will not be enacted on Thursday making it an offence to have
gone fishing the day before. But this principle does not only apply to criminal laws. More generally it
might be said that laws should not retrospectively change legal rights and obligations.1 7.2 This chapter
discusses: the source and rationale of limiting retrospective laws; how the principle is protected from
statutory encroachment; and when retrospective laws may be justified. The ALRC calls for submissions
on two questions.

Question 7–1 What general principles or criteria should be applied to help determine whether a law that
retrospectively changes legal rights and obligations is justified? Question 7–2 Which Commonwealth
laws retrospectively change legal rights and obligations without justification? Why are these laws
unjustified?

7.3 The common law on the subject of retrospective law making was influenced by Roman law. It may
also be reflected in cl 39 of the Magna Carta (1215), which

1 The Terms of Reference refer both to laws that ‘retrospectively change legal rights and obligations’
and to laws that ‘create offences with retrospective application’. These are treated together in this
chapter.

56 Traditional Rights and Freedoms—Encroachments by Commonwealth Laws

prohibited the imprisonment or persecution of a person ‘except by the lawful judgement of his peers
and by the law of the land’.2 7.4 In Leviathan (1651), Thomas Hobbes wrote that ‘harm inflicted for a
fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before
the law, there is no transgression of the law’.3 William Blackstone wrote in his Commentaries on the
Laws of England (1765): Here it is impossible that the party could foresee that an action, innocent when
it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to
abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws
should be therefore made to commence in futuro, and be notified before their commencement.4 7.5
Retrospective laws are commonly considered inconsistent with the rule of law. In his book on the rule of
law, Lord Bingham wrote: Difficult questions can sometimes arise on the retrospective effect of new
statutes, but on this point the law is and has long been clear: you cannot be punished for something
which was not criminal when you did it, and you cannot be punished more severely than you could have
been punished at the time of the offence.5 7.6 Retrospective laws make the law less certain and
reliable.6 A person who makes a decision based on what the law is, may be disadvantaged if the law is
changed retrospectively. It is said to be unjust because it disappoints ‘justified expectations’.7 7.7 The
criminal law ‘should be certain and its reach ascertainable by those who are subject to it’, the High Court
said in Director of Public Prosecutions (Cth) v Keating (2013).8 This idea is ‘fundamental to criminal
responsibility’ and ‘underpins the strength of the presumption against retrospectivity in the
interpretation of statutes that impose criminal liability’.9 The Court then quoted Bennion on Statutory
Interpretation, 5th ed (2008): A person cannot rely on ignorance of the law and is required to obey the
law. It follows that he or she should be able to trust the law and that it should be predictable. A law that
is altered retrospectively cannot be predicted. If the alteration is

2 Ben Juratowitch, Retroactivity and the Common Law (Bloomsbury Publishing, 2008) 28. Juratowitch
notes however, that this clause is more concerned with placing limits on the exercise of executive
power. 3 Thomas Hobbes, Leviathan (Oxford University Press 1996, 1651) 207. 4 William Blackstone,
Commentaries on the Laws of England (15th ed, 1809) vol 1, 46. 5 Tom Bingham, The Rule of Law
(Penguin UK, 2011). 6 Lord Diplock said: ‘acceptance of the rule of law as a constitutional principle
requires that a citizen, before committing himself to any course of action, should be able to know in
advance what are the legal consequences that will flow from it’: Black-Clawson International Ltd v
Papierwerke WaldhofAschaffenburg [1975] AC 591. 7 HLA Hart, The Concept of Law (Clarendon Press,
2nd ed, 1994) 276. (‘retrospective law-making is unjust because it ‘disappoints the justified
expectations of those who, in acting, having relied on the assumption that the legal consequences of
their acts will be determined by the known state of the law established at the time of their acts’) 8
Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459, 479 [48] (French CJ, Hayne, Crennan,
Kiefel, Bell And Keane JJ). 9 Ibid [48] (French CJ, Hayne, Crennan, Kiefel, Bell And Keane JJ).

7. Retrospective Laws 57

substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act
unjustly.10 7.8 In Polyukhovich v Commonwealth (1991), Toohey J said: All these general objections to
retroactively applied criminal liability have their source in a fundamental notion of justice and fairness.
They refer to the desire to ensure that individuals are reasonably free to maintain control of their lives
by choosing to avoid conduct which will attract criminal sanction; a choice made impossible if conduct is
assessed by rules made in the future.11 7.9 The Terms of Reference refer to both laws that
retrospectively change legal rights and obligations and laws that create offences with retrospective
application. This chapter deals with both of these types of law, but the second type of law is more
difficult to justify. In Retroactivity and the Common Law (2007), Ben Juratowich writes: Retroactive
creation of a criminal offence is a particularly acute example of infraction by the state of individual
liberty ... Holding a person criminally liable for doing what it was lawful to do at the time that he did it, is
usually obviously wrong. The retroactive removal of an actual freedom coupled with the gravity of
consequences that may accompany a breach of the criminal law mean that retroactive imposition of a
criminal liability is rarely justified.12 Protections from statutory encroachment Australian Constitution
7.10 There is no express or implied prohibition on the making of retroactive laws in the Australian
Constitution. In R v Kidman (1915), the High Court found that the Commonwealth Parliament had the
power to make laws with retrospective effect.13 In that case, which concerned a retrospective criminal
law, Higgins J said: There are plenty of passages that can be cited showing the inexpediency, and the
injustice, in most cases, of legislating for the past, of interfering with vested rights, and of making acts
unlawful which were lawful when done; but these passages do not raise any doubt as to the power of
the Legislature to pass retroactive legislation, if it sees fit. ... The British Parliament, by Acts of attainder
and otherwise, has made crimes of acts after the acts were committed, and men have been executed for
the crimes; and—unless the contrary be provided in the Constitution—a subordinate Legislature of the
British Empire has, unless the Constitution provide to the contrary, similar power to make its Statutes
retroactive.14

10 Ibid. 11 Polyukhovich v Commonwealth (1991) 172 CLR 501, 608 (Toohey J). 12 Ben Juratowich,
Retroactivity and the Common Law (University of Oxford, 2007) 52. 13 R v Kidman (1915) 20 CLR 425.
14 Earlier in that case: ‘No doubt a provision making criminal and punishable future acts would have
more direct tendency to prevent such acts than a provision as to past acts ; but whatever may be the
excellence of the utilitarian theory of punishment, the Federal Parliament is not bound to adopt that
theory. Parliament may prefer to follow St Paul (Romans IX 4), St Thomas Aquinas, and many others,
instead of Bentham and Mill’: Ibid 450.

58 Traditional Rights and Freedoms—Encroachments by Commonwealth Laws

7.11 The power of the Australian Parliament to create a criminal offence with retrospective application
has been affirmed in a number of cases, and is discussed in Polyukhovich v Commonwealth (1991).15 In
that case, McHugh J said that ‘Kidman was correctly decided’16 and that numerous Commonwealth
statutes, most of them civil statutes, have been enacted on the assumption that the Parliament of the
Commonwealth has power to pass laws having a retrospective operation. Since Kidman, the validity of
their retrospective operation has not been challenged. And I can see no distinction between the
retrospective operation of a civil enactment and a criminal enactment.17 Principle of legality 7.12 The
principle of legality provides some protection from retrospective laws.18 When interpreting a statute,
courts will presume that Parliament did not intend to create offences with retrospective application,
unless this intention was made unambiguously clear.19 For example, in Maxwell v Murphy (1957), Dixon
CJ said: the general rule of the common law is that a statute changing the law ought not, unless the
intention appears with reasonable certainty, to be understood as applying to facts or events that have
already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the
law had defined by reference to past events.20 7.13 However, this presumption does not apply to
procedural (as opposed to substantive) changes to the application of the law. Dixon CJ went on to say:
given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or
regulating the manner in which they are enforced or their enjoyment is to be secured by judicial remedy
is not within the application of the presumption. Changes made in practice and procedure are applied to
proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege,
notwithstanding that before the change in the law was made the accrual or establishment of the rights,
liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise
past and closed.21

15 Polyukhovich v Commonwealth (1991) 172 CLR 501. See also Millner v Raith (1942) 66 CLR 1. 16
Polyukhovich v Commonwealth (1991) 172 CLR 501, 721 [30] (McHugh J). 17 Ibid 718 [23] (McHugh J).
18 The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more
generally in Ch 1. 19 See also, Polyukhovich v Commonwealth (1991) 172 CLR 501; Maxwell v Murphy
(1957) 96 CLR 261, 267 (Dixon CJ); WBM v Chief Commissioner of Police [2012] VSCA 159 (30 July 2012)
[67] (Warren CJ with whom Hansen JA expressed general agreement at [133]. Chief Justice Spigelman in
AttorneyGeneral of New South Wales v World Best Holdings Ltd [2005] enunciated a slightly different
test for the principle of legality as it applies to the interpretation of criminal offences which have
retrospective effect. 20 Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ). See also Rodway v The
Queen (1990) 169 CLR 515, 518 ( (Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ). In that case, the
Justices stated, ‘the rule at common law is that a statute ought not be given a retrospective operation
where to do so would affect an existing right or obligation unless the language of the statute expressly
or by necessary implication requires such construction. It is said that statutes dealing with procedure are
an exception to the rule and that they should be given a retrospective operation’. 21 Maxwell v Murphy
(1957) 96 CLR 261, 267 (Dixon CJ).

7. Retrospective Laws 59

International law 7.14 There are prohibitions on retrospective criminal laws in international law. Article
15 of the International Covenant on Civil and Political Rights (ICCPR), expressing a rule of customary
international law,22 provides: 1. No one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence, under national or international law, at the
time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at
the time when the criminal offence was committed. If, subsequent to the commission of the offence,
provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2.
Nothing in this article shall prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognized by the community of nations. 7.15 International instruments cannot be used to ‘override
clear and valid provisions of Australian national law’.23 However, where a statute is ambiguous, courts
will generally favour a construction that accords with Australia’s international obligations.24 Bills of
rights 7.16 In other countries, bills of rights or human rights statutes provide some protection from
statutory encroachment. There are prohibitions on the creation of offences that apply retrospectively in
the United States,25 the United Kingdom,26 Canada27 and New Zealand.28 For example, the Canadian
Charter of Rights and Freedoms provides that any person charged with an offence has the right not to
be found guilty on account of any act or omission unless, at the time of the act or omission, it
constituted an offence under Canadian or international law or was criminal according to the general
principles of law recognized by the community of nations.29 7.17 The right not to be charged with a
retrospective offence is also protected in the Victorian and ACT human rights stautes.30 Justifications
for encroachments 7.18 Are retrospective laws necessarily unjust? In George Hudson Limited v
Australian Timber Workers’ Union (1923) Isaacs J quoted the principle in Maxwell on Statutes, 6th ed,
that ‘Upon the presumption that the Legislature does not intend what

22 See Polyukhovich v Commonwealth (1991) 172 CLR 501, 574 (Brennan CJ). 23 Minister for
Immigration v B (2004) 219 CLR 365, 425 [171] (Kirby J). 24 Minister for Immigration and Ethnic Affairs v
Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed
more generally in Ch 1. 25 United States Constitution art I § 9, 10. (‘No Bill of Attainder or ex post facto
Law shall be passed’: § 9). 26 Human Rights Act 1998 (UK) ) c 42, sch 1 pt I, art 7. 27 Canada Act 1982 c
11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 11(g). 28 Bill of Rights Act 1990 (NZ) s
26(1). 29 Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 11(g). 30
Charter of Human Rights and Responsibilities 2006 (Vic) s 27; Human Rights Act 2004 (ACT) s 25.

60 Traditional Rights and Freedoms—Encroachments by Commonwealth Laws

is unjust rests the leaning against giving certain statutes a retrospective operation’ and then said: That is
the universal touchstone for the Court to apply to any given case. But its application is not sure unless
the whole circumstances are considered, that is to say, the whole of the circumstances which the
Legislature may be assumed to have had before it. What may seem unjust when regarded from the
standpoint of one person affected may be absolutely just when a broad view is taken of all who are
affected. There is no remedial Act which does not affect some vested right, but, when contemplated in
its total effect, justice may be overwhelmingly on the other side.’31 7.19 After quoting this passage,
Pearce and Geddes write that while ‘a legislative instrument may take away some rights it may confer
others and the overall aggregate justice may indicate that retrospectivity was intended’.32 It may also
suggest that the retrospective law was justified. But are there more specific principles that might help
determine whether a retrospective law is justified? 7.20 Creating retrospective criminal offences may be
more difficult to justify than other retrospective laws. Article 4 of the ICCPR provides that some rights
may be derogated from in ‘times of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed’—but this expressly excludes art 15, which concerns the
creation of retrospective criminal offences. However, art 15(2) itself contains one specific limitation:
Nothing in this article shall prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognized by the community of nations. 7.21 Bills of rights allow for limits on most rights, but the limits
must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic
society’.33 7.22 Some Australian laws that operate retrospectively may be justified. The ALRC invites
submissions identifying those that are not justified, and explaining why they are not justified.

31 George Hudson Limited v Australian Timber Workers’ Union (1923) 32 CLR 413, 434. 32 Dennis
Pearce and Robert Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014)
[10.8]. 33 Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 1. See also,
Charter of Human Rights and Responsibilities 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Bill of
Rights Act 1990
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