Retrospective Operation of the Bill

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Publications (Immigration Issues) Bill 2014 (Cth) Issue
I. Issue

Does the government have the right to implement a Bill that operates retrospectively? If this occurs, many people, especially journalists and media companies, would likely be charged and arrested, even though their work could have been written up to two years ago, since under the Bill that is proposed to operate retrospectively, publications made in the last two years come under scrutiny.

II. Relevant Law
(a) Statutory Analysis of the Bill

If a modern approach of statutory interpretation was employed to construe this bill, the statutory principle of looking to the purpose of the government in writing the legislation would be applied. As Prime Minister Rick Grimes stated in his second reading speech of the Bill, the proposed law aims to provide protection for all Australian citizens from any public proclamation or record made about immigration or something alike that brings about unwelcoming and threatening feelings of hatred, or threatens the health and safety of the Australian people . As it was the Prime Minister who introduced the Bill into parliament to regulate media publications addressing immigration issues, this comment in the Parliamentary debate indicates the intention and purpose of the drafting of the Bill-that is, for it to operate retrospectively.

Further, in section 4 of the Bill, included in the definition of the term “declared materials” is the phrase “publically available or capable of being publically available” . Applying statutory principles of interpreting the meaning of words in their ordinary sense, this definition can be understood as referring to materials that are being published and accessed currently, or that have been published...

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...he principles in which would need to be heavily considered when making legislation that is ex post facto law.

IV. Conclusion

In following the principles of statutory interpretation when construing the Bill, it is clear that it is appropriately drafted in order for it to act retrospectively. Further, by looking at the case of Polyukhovich v Commonwealth and the decision made by the High Court, it is evidenced that laws can be implemented retrospectively and that it is possible to enforce laws created in the present that result in prosecution for past conduct. However, Putland’s article offers a different point of view in relation to this issue, providing reasons not to legislate ex post facto law. However, it is likely that this Bill will be passed due to the Australian Constitution allowing retrospective laws, and the fact that they have been passed previously.

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