18 October 2006
Validating legislation - Treasury advice
Dr Cullen has now made the advice available: > Treasury Report > Cullen Cabinet paper A quick read suggests: - The advice on validation is superficial and simply asserts that validation is necessary. No adverse consequences arising from maintaining the unlawful are discussed. - The advice on the breadth of validation is also superficial. The fact that the validation goes beyond solely validating expenditure now vulnerable because of the Aud-Gen's report is not mentioned. Nor is the appropriateness of the 1989 validation date explained or justified. - There was no advice that it be validated under urgency. - The (non-)necessity of interim legislative definitions is not mentioned. In particular, no consider is given to the interim solution being implemented simply by the issue of new directions by the Speaker. - The advice says the Bill is consistent with LAC guidelines. However, clearly, its effect on the Darnton v Clark litigation raises implications about the effect of (retrospective) legislation on pending legislation. In particular, the LAC guidelines incorporate the LAC's May 1995 memorandum: "Legislation Overriding Judgments and Pending Proceedings" and suggest this type of legislation is objectionable because it overrides this pending litigation. If I had set this scenario as a student assignment, I would grade the product a C-. Extremely disappointing. As I've said before, the validation of misappropriations is capable of being undertaken in a manner which is not objectionable. The advice and approach fall to grapple with the significant constitutional issues at stake. I think we deserve better.