Case: Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515
Outcome: distinguished
The respondents' alternative argument is that reg 2.14 only operates prospectively. They say that at the time the alleged contraventions took place they had a "right" not to be vexed by litigation by anyone other than a party to an AWA. Citing Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515 at 519, they contended that they had a "right to be free of a claim". They rely also on s 12(2) of the Legislative Instruments Act . 21 The expression quoted from Rodway appears in a context where their Honours are discussing limitation statutes and whether they should be given a retrospective operation to revive a cause of action which has become barred, or deprive a person of the opportunity of instituting an action which is within time. In such cases, giving the legislation a retrospective operation would operate so as to impair existing, substantive rights either the right to be free of a claim or the right to bring a claim and such an operation could not be said to be merely procedural. (Emphasis added.) 22 The actual decision in Rodway does not assist the respondents indeed to the contrary. Until its repeal on 26 November 1987, s 136(1) of the Criminal Code (Tas) required corroboration for conviction of certain offences. Before the date of repeal the appellant was charged with such an offence. He was committed for trial in 1988 and his trial commenced in 1989. The High Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) unanimously held that the Code in its post-amendment form applied. Their Honours said at 521: ... ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. In the present case the respondents in September December 2005 either did or did not apply duress in relation to AWAs. If they did, they incurred a substantive obligation, the liability to such penalty as might be fixed by a court. They did not acquire any substantive right to have that obligation ascertained in some particular way, or only at the suit of some particular person or class of persons, any more than they acquired the right to be tried only by the law of evidence as it stood in December 2005. 23 For the same reason, the respondents acquired no "rights" in terms of the Legislative Instruments Act . 24 In any event, the presumption against retrospectivity is no more than that, a presumption which must yield to a clear expression of intent to the contrary. An issue of retrospectivity raises the question whether a law which on its face applies equally to past and future events must be read down as to apply only to the latter. In its terms reg 2.14 is solely concerned with involvement in proceedings for alleged contraventions under the Old Act. Such contraventions can only have happened before reg 2.14 came into operation. The whole purpose of reg 2.14 is to deal with past events.