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Wednesday, 13 September 1972
Page: 740

Senator RAE (TASMANIA) - I ask: Will the AttorneyGeneral explain to me and to the Senate the difference between validating legislation and retrospective legislation or legislation with retrospective operation?

Senator GREENWOOD - It is a difficult question and to go into it in great depth undoubtedly would involve giving a legal opinion but I am sure that mentioning a matter in outline would not be trespassing upon the Standing Orders. There is a world of difference between retrospective legislation, which is legislation which affects persons in circumstances where their rights are taken away or where a certain situation is changed from what it is believed to be, and validating legislation, which is designed to validate legislation on a general position which has been proved defective as a result of some error. The best example I can give, removing oneself from current issues, is to refer back to a decision made in about 1968 in which it was decided that the means by which prisoners had been serving their sentences outside the Australia Capital Territory lacked justification under the laws of the Commonwealth, yet people had been serving terms of imprisonment in gaols outside the A.C.T. for, I think, as long as the A.C.T. had existed. Because the decision of that court was that there was a lack of statutory basis, there had to be remedying legislation which I think was passed through the Parliament in the course of a day. Of course, the person who received the benefit of that particular decision was set free., because to have imposed upon him an obligation would have been to take away from him the rights which he had acquired by his court action. Therefore, there, is a difference between validating legislation of the character I have mentioned and what would have been retrospective legislation if that person had been compelled, to serve his sentence after he had gone to the courts and had had accrued rights.

In the current position there were 4 plaintiffs who proceeded before the Supreme Court simply for a declaration and an injunction. They secured their declaration even though they lost their injunction. For those 4- persons I would have thought it was. quite wrong that thereafter they should be subjected to charges which their, action was designed to avoid their having to face. I am sure that that will be the position in the case of those 4 people.

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