Legislation Review Committee

Question—That the House take note of the report—proposed.

Mr ALLAN SHEARAN (Londonderry) [11.07 a.m.]: I speak to the Legislation Review Committee's report entitled "Legislation Review Digest No. 9 of 2008". In this digest the Legislation Review Committee considered 10 bills and raised issues with eight of them. These issues ranged from the right to personal integrity, the exclusion of judicial and merit review, self-incrimination, commencement on proclamation and retrospectivity. The issue of retrospectivity was raised in relation to three bills: the Crimes (Sentencing Procedure) Amendment (Life Sentences) Bill 2008, the Police Integrity Commission Amendment (Crime Commission) Bill 2008 and the Road Transport Legislation Amendment Bill 2008. I will focus on those issues today.

Retrospectivity refers to the operation, or purported operation, of a statute prior to the time of its enactment. Statutory provisions, particularly those imposing criminal penalties, are presumed to operate only for the future. While common law is never retrospective, the Government retains the right to make legislation retrospective if it considers it appropriate. However, it is generally considered as a human rights principle that legislation should, in most cases, have prospective effect only. In particular, it should neither interfere with accrued rights and duties nor create offences retrospectively. Legislation should not, in general, deprive individuals of their right to benefit from judgements obtained in proceedings brought under earlier law or to continue proceedings asserting rights and duties under that law.

Therefore, the committee is concerned when it sees retrospective provisions in legislation, and it scrutinises them thoroughly. The committee does not always conclude that retrospectivity will trespass on personal rights and liberties and does, as with all issues it considers under section 8A of the Legislation Review Act 1987, impose a public interest test, weighing up the collective public interest against the trespass against individual rights. These three bills are illustrative of the committee's approach to the issue. In the case of the Crimes (Sentencing Procedure) Amendment (Life Sentences) Bill 2008, the committee was concerned about new sections 2A (1), 6 (1A) and 7 (5), which placed a restriction on the number of further applications by an offender of non-parole periods. These will take effect from 17 June 2008, when the Minister made the announcement, rather than the actual date of the commencement of the proposed Act. These amendments will affect an inmate's opportunity to redetermine his or her original life sentence and may impact on serving the existing life sentence for the term of his or her natural life. Therefore, the committee concluded that this may be an undue trespass on personal rights and liberties.

The Police Integrity Commission Amendment (Crime Commission) Bill 2008 proposed the insertion of application of amendments to previous conduct of Crime Commission officers. The legislation allows for detection and investigation of misconduct of Crime Commission officers or former Crime Commission officers to extend to conduct occurring before the commencement of the proposed Act. However, in this instance the committee did not believe that these proposed provisions affected the integrity of the investigation process and, therefore, did not consider that they trespassed on personal rights and liberties.

The Road Transport Legislation Amendment Bill 2008 proposed an amendment to insert a new section 78 (2) into the Roads Act 1993 that provides that proposed items [2] and [3] of schedule 5 apply in relation to legal proceedings commenced on or after the commencement of the amendments but extend to matters and events occurring before that commencement. In turn, schedule 5, item [2] expands on the allowable content of an evidentiary certificates and schedule 5, item [3] refers to the admissibility into evidence of those certificates as evidence of the fact, or facts, so stated. Although the provisions expressly prohibit legal proceedings that have already commenced from allowing into evidence certificates under the changes in proposed items [2] and [3] of schedule 5, the provisions expressly permit legal proceedings to allow into evidence certificates under those changes, even if it relates to offences that allegedly occurred before the commencement of proposed items [2] and [3] of schedule 5.

Therefore, the committee concluded that the legislation does not retrospectively create any new offences, retrospectively change the definitions that pertain to an offence, or retrospectively provide for any new penalties. Instead, the provisions merely amend the rules regarding the admissibility of new content in certificates into evidence for future legal proceedings. As such, the committee did not consider that the proposed changes were extensive enough to warrant concern that they would detrimentally affect people. The committee also noted the relatively minor effect the proposed amendments will have on the overall legal proceedings.

As I have emphasised on many occasions in this House, the committee is not concerned with commenting on government policy or the merits of the proposed legislation it considers. The committee's role is to scrutinise bills in accordance with its functions as set out in section 8A of its Act and raise concerns with Parliament when it feels that legislation may fall within the parameters of the issues outlined in section 8A (1) (b). In this regard I must again emphasise that any comments made by the committee cannot be simply interpreted as being in support or against a proposed bill or regulation. It is at times an onerous task to identify those issues within the terms of reference of our responsibility. But that is the extent of our purpose. Having identified those issues, it is up to the Parliament to decide upon the overall merits of the proposed bill or regulation.

At the end of another parliamentary session, it would be remiss of me not to acknowledge the invaluable contribution of the committee's staff: Catherine Watson, the committee manager; Carrie Chan, the senior committee officer; Jim Jefferies, the senior committee officer; Amy Bauder, the committee officer; and Keith Johnstone, the assistant committee officer. We certainly could not achieve the success we have in delivering to the Parliament the digest reports in the time required without their ongoing professional assistance. In addition, I must acknowledge the committee members: Paul Pearce, the member for Coogee, and Deputy Chair; Amanda Fazio, MLC; Judy Hopwood, the member for Hornsby; Lylea McMahon, the member for Shellharbour; Robyn Parker, MLC; Roy Smith, MLC; and Russell Turner, the member for Orange. All members, despite our differing political associations, are united in commitment to fulfilling the role we have to play in alerting the Parliament to the concerns outlined in section 8A and section 9 of the Legislation Review Act 1987. I congratulate them for their dedication. As Chair, I certainly appreciate their endeavours.

Mr THOMAS GEORGE (Lismore) [11.15 a.m.]: I congratulate the Chair of the Legislation Review Committee. On the previous occasion he presented a report to the House it was suggested that the committee consider publishing the report online. That has been done. As a member of the House I place my appreciation on the record to the committee for adopting the suggestion. During debate on the previous report the member for Shellharbour commented that the member for Cronulla read the report word for word, and she commented that the member was being lazy. People have expressed to me their appreciation of the member for Cronulla reading extracts of the report into Hansard because it enables them to read what the Legislation Review Committee thought of the bill. The report of the Legislation Review Committee highlights some of the concerns that have been expressed. As the Chair of the Legislation Review Committee commented on that occasion, the committee is non-political. The report expressed the view of committee members as they see the issues, and I compliment them for that.

Question—That the House take note of the report—put and resolved in the affirmative.

Report noted.