Gavin R. Putland,  BE PhD

Tuesday, May 14, 2013 (Comment)

Retrospective laws breach separation of powers

In 2010 the Supreme Court of South Australia (exercising federal jurisdiction) ruled that contrary to the federal government's longstanding belief, failure to inform Centrelink (Australia's social security agency) of a relevant change in one's circumstances was not in itself an offence. That decision was upheld on appeal to the High Court (Australia's highest court) in October 2011. But before the High Court handed down its decision, the federal Parliament — obviously fearful of the number of convictions that might be overturned, the number of baseless prosecutions that might be terminated, and the size of the compensation bill — passed an amendment to the Social Security (Administration) Act in order to validate the convictions by retrospectively creating the desired offence.

On May 8, 2013, in Director of Public Prosecutions (Cth) v. Keating, the High Court found that the attempt to create the offence retrospectively had failed because of the interaction between the Social Security (Administration) Act and the Criminal Code. For that reason (which was not made clear in media coverage of the case), it was unnecessary to decide the second question before the Court, namely whether retrospective legislation creating criminal liability would offend the separation of powers.

Which it would. More fundamentally, it would offend the rule of law, of which the separation of powers is a corollary.

Article 1, Section 9 of the U.S. Constitution provides that "No Bill of Attainder or ex post facto Law shall be passed." Section 10 extends this dual prohibition to the States. A bill of attainder is a clear breach of the separation of powers: the legislature arrogates to itself the power to convict and sentence, which is a judicial power. An ex post facto law (retrospective law creating criminal liability) is simply a bill of attainder to which judicial fingerprints are to be attached later: the victims are specified not by name, but by what they have done in the past, in order to bring them under judicial condemnation regardless of what they do in the future. Hence bills of attainder and ex post facto laws are mentioned together and prohibited together and, if they were not explicitly forbidden by particular clauses of the U.S. Constitution, would be implicitly forbidden by the separation of powers. Thus they are forbidden under any other constitution that has a separation of powers.

Furthermore, a judicial finding of law is retrospective to the last relevant legislative change and prospective until the next one; if it were only prospective, the judicial branch would be changing the law and thereby usurping a legislative function. But if a judicial finding of law is retrospective, a legislative change cannot be retrospective without usurping a judicial function.

More fundamental than the separation of powers is the rule of law. The mere existence of a constitution (written or unwritten) recognizes the rule of law. The mere existence of a court recognizes the rule of law; the institutional integrity of the court therefore precludes the court from entertaining any proposition incompatible with the rule of law. The very word jurisdiction implies the rule of law. Without the rule of law, all the other institutions that we cherish, including free elections and the separation of powers, would be meaningless because the de facto government would not be obliged to respect them.

Moreover, the separation of powers is a consequence of the rule of law. If the executive power is to be kept under the rule of law, it must not be able to make laws or decide cases in its own favour, wherefore the legislative and judicial powers must be separate from the executive power. If the legislative power is to be kept within the limits imposed by the rule of law (or by the constitution), it must not be the judge of whether it is within those limits, wherefore the legislative and judicial powers must be separate from each other. This reasoning does not tell us to what extent the executive branch may be answerable to, or drawn from, the legislative branch; thus it neither endorses nor rejects a parliamentary or Westminster system per se (although it warns against any extra baggage that facilitates a domination of Parliament by the Executive). But it tells us that the rule of law implies the separation of powers to the maximum degree permitted by the Westminster system.

Hence, if a particular jurisdiction does not have an explicit separation of powers, the rule of law nevertheless affords an implicit separation of powers, which in turn prohibits retrospective legislation.

In Australia, where State courts are vested with federal jurisdiction and the federal constitution has a strict separation of powers, one can further argue that the observance of the separation of powers by a State court exercising State jurisdiction, if not explicitly required by the State constitution, is required by the institutional integrity of the court within the federal system.

Apart from the separation of powers, the rule of law has at least three further implications, any one of which is enough to prohibit retrospective criminalization.

  • First, the law must be knowable. If a retrospective law is to satisfy this requirement, it must be so obvious that it is knowable before it is enacted. A retrospective law against exterminating people because of their ethno-religious heritage clearly satisfies that requirement. A retrospective law requiring poor and uneducated people to inform Big Brother of "relevant" changes in their private circumstances clearly does not. A borderline case is "legislation by press release", where (e.g.) legislation designed to close a tax loophole is backdated to the day on which the intention to legislate was announced.

    (There are also cases where retrospectivity is in the eye of the beholder. For example, if a tax reform adversely affects future returns on assets acquired in the past, the affected taxpayers will complain that the reform "retrospectively" penalizes past decisions — although when they made those decisions, they were not entitled to assume that the tax system would stay the same. Every investment is partly a bet, and therefore possibly a losing bet, on future tax policy. The losers do not oppose the reform because it is retrospective; they call it retrospective because they oppose it.)

  • Second, the law cannot demand the impossible. Hence it cannot require us to know a law that has not yet been made and is not knowable until it is made. Hence the doctrine that "ignorance of the law is no defence" cannot apply to such a law. As ignorance is guaranteed, the law is rendered ineffectual.
  • Third, we are under a "government of laws", not a "government of men". But a general power to make retrospective laws would place us under a government of men, namely incumbent legislators who would find it convenient if what we do legally today could be made illegal tomorrow with effect yesterday.

A law that de-criminalizes specified past behaviours has an effect similar to that of a law prescribing executive clemency in the same circumstances, and the latter would comply with the separation of powers. A law that creates financial obligations for the government concerning past events has an effect similar to that of an appropriation act for the same purpose, which would comply with the separation of powers. Noting these examples, one could argue that a retrospective law is permitted if it only produces an otherwise permitted effect. Stretched to its limits, that argument would permit a retrospective law criminalizing activities (e.g. crimes against humanity, terrorism) that were already crimes under non-retrospective laws (e.g. conventional war crimes, murder, kidnapping, arson), although one might well ask what is the point of passing retrospective laws for purposes already covered by non-retrospective laws. But the "otherwise permitted effect" argument does not support retrospective legislation criminalizing activities that would not otherwise have been crimes at all.

As a law against genocide is knowable, it is arguable that prosecutions of low-ranking Nazi war criminals did not rely on retrospectivity. But it is perfectly clear that retrospectivity was a hallmark of Nazi jurisprudence before and during the war. Yes, I've heard it said that whoever first compares an opponent with the Nazis loses the argument. The trouble with that rule is that it protects opponents who deserve the comparison.

In July 2013, in the Heidelberg and Melbourne magistrates' courts, charges laid against 18 people under the retrospective provisions of the Social Security (Administration) Act were withdrawn.

[Response to a question at StackExchange Politics.  Cf. my comments at Skeptic Lawyer, Nov.4, 2011. Last modified October 14, 2013. See also “If you are charged under a retrospective ‘law’”.]

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