Thursday, 1 August 2019
Law Society objects to retrospective legislation
The ACT Law Society expressed strong opposition to recent changes to specific offences in the Crimes Act and the Firearms Act which the ACT Government intends to apply retrospectively.
The amendments were contained within the Crimes Legislation Amendment Bill 2019 which was passed by the Legislative Assembly on 1 August 2019.
Two aspects of the bill are of great concern to the Society.
In the first instance, the bill broadens the current definitions of ‘choke’, ‘strangle’ and ‘suffocate’ in the Crimes Act 1900.
This means that actions that have been found by the Courts to fall outside of the existing definitions of choke, strangle or suffocate may now do so.
While the Society makes no comment on the new definitions, it is most concerned that the changed definitions will apply to all proceedings regardless of when they were commenced or the date of the alleged offence. This effectively means that the expanded definitions will be applied retrospectively to matters that predate the passage of the bill.
The Society strongly opposes the retrospective application of the amended definitions and the retrospective application of the criminal law.
Similarly, the bill amends the Firearms Act 1996 with retrospective effect. A defendant must now prove that he/she held an interstate firearms licence or permit rather than the existing situation where the prosecution had to prove the person did not hold an interstate licence or permit. Again, the changed onus of proof will apply to all proceedings regardless of when they were commenced or the date of the alleged offence. This effectively means that the reversal of the onus of proof will be retrospectively applied to matters that predate the passage of the bill.
The Society believes that the revised definitions in the Crimes Act and the reversal of the onus of proof in the Firearms Act should be effective from the date the legislation is notified and not earlier.
The Society had called on the Government to reconsider the retrospective application of the two provisions. It is of continuing concern to the Society that an omnibus bill was again presented to the Assembly on the basis that it proposes only minor or technical changes, but when in fact significant issues arise from the bill.
The retrospective application of criminal offences is unfair, contrary to established legal principle and inconsistent with the ACT’s status as a human rights jurisdiction. The retrospective application of a criminal offence is contrary to section 25 of the Human Rights Act 2004.
For further information contact:
Mr Michael Kukulies-Smith, Chair, ACT Law Society's Criminal Law Committee, 0402 981 512