InBrief

Both houses of New South Wales Parliament have passed the Crimes (Administration of Sentences) Amendment Bill 2009 (NSW) just hours after it was introduced. The object of the bill, as provided by the explanatory notes, is to "confirm current arrangements for the care, control and management of inmates in connection with the designation of inmates for the management of security and other risks and the separation of inmates from other inmates in a correctional centre". The Bar Association saw it as retrospective legislation designed to forestall a case that is yet to be heard by a court. The association briefed the cross-benchers in the Upper House, and Greens MLC Sylvia Hale read part of that advice into the Hansard. She said:

"Parliament should not be enacting new provisions that do not make their intent and operation plain and that are unable to be read meaningfully with the remainder of the Act. I received late today the following comment from the Bar Association:

_The New South Wales Bar Association opposes amendments aimed to legislatively determine the outcome of current Supreme Court proceedings involving the lawfulness of detention of certain prisoners in the High Risk Management Unit of the Goulburn Correctional Facility. The fact that the Government is seeking to enact retrospective legislation whilst the litigation in question is still pending is of deep concern.

Regardless of the parties involved and the crimes they have been convicted of, the Association considers that this retrospective approach to overturn litigation currently on foot is unacceptable, particularly as the Association understands that the Government intends to pass the bill through both Houses of Parliament this week.

The separation of powers between the Executive, the Legislature and the Judiciary becomes blurred when the State in its Executive capacity is a litigant to proceedings and in the face of an adverse outcome seeks to achieve success in that litigation not by an in independent determination by the judicial arm of the Government but instead by enacting retrospective legislation to achieve the same effect. The Government through its legislative role gets to "move the goal posts" whilst the litigation is still pending. It thereby utilises a power unavailable to the other party in the proceedings to gain an advantage for itself.

The retrospective application of legislation to current proceedings is a major step and should be subjected to detailed consideration by the Parliament. Given that the relevant proceedings are next listed for hearing in September, the Association is strongly of the view that the legislation be subject to proper consultation, consideration and scrutiny before any decision is made that it be passed._

View more of the upper house debate >

24 June 2009