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Last Updated: 8 January 2009
THE UNIVERSITY OF QUEENSLAND
LEGAL RESEARCH SERIES
This article was originally published in The Indian Journal of Constitutional Law.
Suri Ratnapala, ‘Reason and Reach of the Objection to Ex Post Facto
Law’, (2007) 1:1 The Indian Journal of Constitutional Law,
140-168
REASON AND REACH OF THE OBJECTION TO EX POST FACTO
LAW
Suri
Ratnapala[*]
ABSTRACT
This essay investigates the theory and scope of the
constitutional principle against retrospective imposition of detriment expressed
in the maxim nullum crimen, nulla poena sine lege. The theoretical bases
of the objection are discussed as groundwork for an examination of key
conceptual problems raised in the implementation
of the principle. The logic of
the argument for excluding civil deprivations from the scope of the objection is
questioned and it
is proposed that the civil-criminal distinction loses
relevance in relation to past acts. The inadequacy of the
‘punishment’
test and the ‘legislative trial’ test are
explained and the essay searches for a rational explanation for condemning
some
retrospective prophylactic laws while accepting others. The essay argues that
the rule of law requires more stringent constraints
on retrospective law making
than are demanded by international instruments such as International Covenant of
Civil and Political
Rights and the European Convention on Human Rights and
pleads that where positive constitutional law fails in this regard, nations
should adopt them as constitutional practice.
KEYWORDS
Constitutional theory – rule of law - Ex post
facto law – Recent US and Australian cases – kinds of
objectionable retrospective laws
1. INTRODUCTION
On the 1st of October
2004, the High Court of Australia made two decisions that permitted the
continued detention of persons already serving
prison sentences for serious
crimes. In the first decision, the Court rejected a challenge to Queensland
legislation that authorised
the State Supreme Court to order continued detention
of a prisoner when it has reasonable grounds to believe that the prisoner poses
a serious danger to the
community.[1] In the
second case, the High Court sanctioned New South Wales legislation that
drastically limited the parol prospects of certain
categories of offenders
serving life
imprisonment.[2] The two
decisions expose the tenuous nature of the Australian public’s protection
against ex post facto law. A troubling aspect of these decisions was the
scant attention paid by the majorities to the ex post facto nature of
these laws. Fardon and Baker were decided on the narrow issue
whether the powers given to the State courts were compatible with their exercise
of Commonwealth
judicial power. The cases highlight the need for a
re-examination of the reason and reach of the objection to ex post facto
law and this essay is a contribution to that end.
It does not take much
science to discover that the rule of law is impossible without strong restraints
on legislative infliction
of harm for lawful acts. Such impositions are not just
assaults on the institutional structures that promote the rule of law but
are
direct negations of the rule of law. A law that undermines the separation of
powers or representative government will expose
the rule of law to subversion
but will not per se defeat it. On the contrary, an ex post facto
law in its classic form is the epitome of the capricious exercise of authority.
The objection to ex post facto law is not founded on constitutional
pragmatics but on the most fundamental demand of the rule of law, that the
citizen is subject
only to established and known law. Article 15(1) of the
United Nations Covenant on Civil and Political Rights (ICCPR) condemns
retrospective criminalisation of innocent acts and retrospective enhancement of
punishment as does Article 7(1)
of the European Convention on Human
Rights (ECHR). The United Kingdom adopted the ECHR provision by the Human
Rights Act 1998 and many other constitutional democracies have
enacted the ban
in this form.[3] This
type of prohibition may be defeated by laws that impose pain in the guise of
civil liability. I argue that the rule of law requires
a more general constraint
on retrospective imposition of harm than is prescribed by the ICCPR and ECHR
standard and that where positive
constitutional law fails in this regard, it
should be recognised as a matter of constitutional principle and of political
morality.
The term ex post facto law literally means ‘[arising]
from past facts’ but in its technical sense refers to a class of laws that
retrospectively
inflict harm on persons on account of past legal conduct. The
best known case of the ex post fact law is the bill of attainder and its
variant the bill of pains and penalties by which the legislature directly
imposes punishment
on named individuals. However the class of laws that has been
judicially condemned, particularly in the United States, and is found
objectionable for the reasons to be discussed presently is wider. It includes
laws that do not name individuals for retrospective
harm but leaves their
selection to other agencies. The term ex post facto law refers to this
wider class.
The question whether in a given jurisdiction, limits on ex
post facto law are requirements of positive constitutional law,
constitutional convention or simply of political morality is important. My
chosen
aim though is to ask the questions what kinds of retrospective laws are
objectionable and why they are objectionable. The answers
will help lawyers
determine what doctrinal means are available in a given constitutional system to
restrain the enactment of such
laws. If there is a one branch of law where the
question ‘what is the law’ It must be emphasised that this is not a
statement
of the positive law of one or more countries although the United
States and Australian law on the subject will receive close attention.
It is not
possible exhaustively to define the objectionable class without knowing all the
novel devices that may be generated by
legislators in the future. However, a
non-exhaustive list of objectionable types will emerge from this discussion.
In Part 2 of this essay I consider the principal reasons for condemning ex
post facto law. The discussion is mainly theoretical with judicial reasoning
serving where relevant to explain the reasons. In Part 3, I engage
some of the
key conceptual and practical problems in identifying laws that attract
condemnation for the reasons discussed. There
is a heavy focus on landmark cases
in the United States and Australia as a means of illustrating problems and where
relevant judicial
error. In Part 4, I itemize non-exhaustively the kinds of laws
that are objectionable, if not in positive constitutional law, then
in
constitutional theory.
2. THEORETICAL OBJECTIONS TO EX POST FACTO LAW
Constitutional
theory offers four reasons for the objection to ex post facto law. They
overlap in some respects.
(1) Ex post facto law is not law
The idea of retrospective
illegality makes any sense only if legality is understood as a provisional
condition dependent on the future
will of a legislative authority. If this is
the case, the law’s primary function of providing guidance to conduct is
severely
weakened. Individuals who cannot predict the legal consequences of
their actions cannot coordinate their behaviour in relation to
each other.
Therefore substantial restraint on the imposition of harm for past innocent acts
is a necessary condition of social life.
The idea of a law conjures a general
rule; hence the frequent question whether an enactment directed at punishing a
single person
or condemning a single transaction can properly be called a law.
Blackstone wrote that an ‘act to confiscate the goods of Titius
or to
attaint him of high treason does not enter into the idea of a municipal law: for
the operation of this act is spent upon Titius
only and has no relation to the
community in general: it is rather a sentence than a
law’.[4] This
rationale has received wide judicial recognition, the locus classicus
being the US Supreme Court’s Opinion in Hurtado v California.
Law is something more than mere will exerted as an act of power. It must not
be a special rule for a particular person or a particular
case, but ... the
general law ... so that every citizen shall hold his life, liberty, property and
immunities under the protection
of the general rules which govern society ...
Arbitrary power, enforcing its edicts to the injury of the persons and property
of
its subjects, is not law, whether manifested as the decree of a personal
monarch or an impersonal
multitude.[5]
The
Privy Council in Q v Liyanage invalidated an Act of the Ceylon Parliament
calculated to lessen the prosecutorial burden and to enhance punishment in a
particular
treason trial on the basis that it was a legislative usurpation of
judicial power.[6] The
New South Wales Court of Appeal found legislation designed to defeat a trade
union’s action challenging its deregistration
to be an exercise of
judicial, not legislative power. The court controversially upheld the
legislation on the ground that the NSW
legislature’s plenary power
included judicial
power.[7] This reason is
untenable as the NSW legislature could not inherit by the language of the
Constitution Act 1955 the kind of sovereign power that historically accrued to
the UK Parliament. More recently, Justice Deane in the High Court
of Australia
observed that a bill of attainder ‘prohibits nothing, prescribes no rule
of conduct and is incapable of being
contravened since, by its terms, it is
inapplicable to acts committed after its
enactment’.[8]
(2) Nullum crimen, nulla poena sine lege
The maxim that
there is no crime without a breach of the law is first a proposition of logic.
If a crime is understood to be an act
that is prohibited by law at the pain of a
penalty, an act which is not so prohibited can never be a crime. The fact that
Parliament
visits the act with its retribution cannot make it a crime. The act
is simply an event with reference to which Parliament elects
to inflict pain on
a person or group. However, the maxim nullum crimen sine lege is more
than a proposition of logic. It is a substantive moral claim to humane
treatment. Blackstone in his Commentaries observing that a person has no
cause and cannot foresee a cause to abstain from doing what is legal wrote that
in such cases ‘all
punishment for not abstaining must be of consequence be
cruel and
unjust’.[9] The
maxim nulum crimen sine lege also condemns law that eliminates an
exculpatory defence that was available at the time of the commission of the
act.[10] A person
commits no crime if he has a legal excuse and the retrospective removal of the
excuse amounts to the punishment of a lawful
act.
The principle nulla
poena sine lege which condemns the retrospective increase in penalties is
again a substantive claim of justice. It can also be seen as a logical extension
of nullum crimen sine lege. A retrospective increase in punishment is an
infliction of new pain not prescribed by law. It is not punishment of the
offence as
the punishment has already been suffered or is being suffered. If
there is a cause, it is the fact that the offender is a person
who has been
punished or is being punished according to law. Suffering lawful punishment is
not itself unlawful.
Subtle ex post facto violations
In Collins v Youngblood,
the Supreme Court declared that ‘subtle ex post facto violations
are no more permissible than overt
ones’.[11] This
explains the Court’s extension of the nullum crimen, nulla poena sine
lege principles to laws that ease the prosecutorial burden by retrospective
changes to evidentiary rules. In Calder v Bull Justice Chase
included within the class of impermissible ex post facto laws,
‘Every law that alters the legal rules of evidence, and receives less or
different testimony than the law required at
the time of the commission of the
offence in order to convict the
offender’.[12]
Recently, in Carmel v Texas the Court ruled unconstitutional, a statute
that retrospectively authorised conviction for certain sexual offences without
corroboration
of the victim’s evidence. The Court held that ‘a law
reducing the quantum of evidence required to convict an offender
is as grossly
unfair as, say, eliminating an element of the offense, increasing the punishment
for an existing offense, or lowering
the burden of
proof’.[13] In
Stogner v California the US Supreme Court overrode a strong dissent to
annul a California statute that allowed the resurrection of time barred
prosecutions
for child sex offences. The complaint against Stogner concerned
events that happened 22 years before the charges were laid. The majority
saw the
statute of limitations primarily as a safeguard against conviction on
insufficient or unreliable evidence and thought that
its removal exposed Stogner
to conviction on a lesser quantum of evidence than was required by law before
the statute was
passed.[14]
The
reasoning here is more complex and contestable. The legislature is not overtly
criminalising an innocent act but is denying a
class of alleged offenders
certain evidentiary safeguards. If the safeguards in fact decrease the
probability of curial error their
removal must logically increase the
probability of innocent persons being punished, the kind of harm that the maxim
seeks to prevent.
However, as the dissent in Stogner pointed out, the
theory founded on evidentiary concerns is weakened by the fact that the ban on
ex post facto law as judicially accepted does not condemn laws that
eliminate the time bar with respect to future offences or laws that extend
unexpired
limitation
periods.[15] Hence if
it is to hold, the theory must be further refined. The majority viewed the
revival of expired prosecutions as a retrospective
aggravation of the crime as
condemned in Calder v Bull but so is the extension of unexpired
limitation periods. More persuasively, the majority enlisted the notion of
‘reliance interest’
in aid of the theory. On the expiration of the
time limit, persons have a reliance interest in the form of an expectation of
immunity
and hence may not preserve evidence of
innocence.[16] The
dissent ridiculed the reasoning with the observation that it involves a
presumption that ‘criminals keep calendars so
they can mark the day to
discard their records or to place a gloating phone call to the
victim’.[17]
Although diary keeping criminals may be hard to find, criminals who do not
re-offend and who redeem themselves might not be so rare.
In such cases the
resurrection of expired prosecutions seems harsh. The point remains though that
the extension of prosecutable periods
or resurrection of time extinguished
prosecutions as well as the retrospective easing of evidentiary burdens are not
easily explained
by the maxim nullum crimen, nulla poena sine lege.
(3) Failure of due process
This objection relates to bills of
attainder and of pains and penalties. Whereas Blackstone denied these the status
of law, John Lilburne
saw in them the vice of the legislative imposition of
punishment without trial. ‘To say that a freeman of England by Law may
be
tried by a Bill of Attainder, is irrational and unjust; for such a proceeding is
no tryal, but rather a sentence, and is no act
of jurisdiction, but an act of
the legislative power, but no sentence can be past against an offender, but by
some fore-declared
visible, known rule of law; of which the supposed offender,
either actually had, or might have had
knowledge'.[18] This
objection was articulated by the US Supreme Court in Selective Service System
v Minnesota Public Interest Research Group when it stated that a bill of
attainder is ‘a law that legislatively determines guilt and inflicts
punishment upon an identified
individual without provision of the protections of
a judicial
trial’.[19]
The doctrinal formulation of this objection is not based on the
institutional separation of powers, but on a distinction drawn between
the type
of decisions that do not require the curial method and the type that do. The
first type consists of decisions generating
rules of general application and the
second type comprises decisions that apply a general rule to a particular
case.[20] The judicial
method is unnecessary in the former case, but is essential to the latter. Tribe
states that the distinction is ‘between
those processes of choice which
have such wide public ramifications that adversely affected individuals need not
participate personally,
and those choice processes which so focus upon
particular persons that their personal participation must be
assured’.[21]
Tribe’s formulation of the objection does not fully explain its
rationale. The objection holds even if the legislature grants
the individuals
targeted a comprehensive hearing before it enacts the ex post facto law.
A legislative hearing does not overcome this objection for two reasons. Firstly,
as Cooley observes, the legislature ‘is
not properly constituted to try
with coolness, caution, and impartiality, a criminal charge, especially in those
cases in which the
popular feeling is strongly excited - the very class of cases
most likely to be prosecuted in this
mode’.[22]
Secondly, even if it assumed that a representative legislature is impartial, it
cannot act in the judicial mode without the guidance
of pre-existing law. This
highlights the fact that bills of attainder and of pains and penalties lack the
qualities of both law and
of adjudication but are cases of straightforward
infliction of pain on chosen individuals.
(4) Ex post facto law offends the separation of powers
doctrine
This objection is based on the claim that the enactment of
certain forms of ex post facto law involves the exercise of judicial
power. In countries where legislative and judicial powers are constitutionally
reposed in separate
organs, the legislative infliction of punishment or
detriment on specified persons is unconstitutional as a matter of positive law.
In England, where the Crown in Parliament had undivided power, the practice of
enacting bills of attainder and of pains and penalties
was abandoned as a matter
of constitutional principle. It is worth noting that these Acts were not enacted
to punish lawful acts
but to punish criminal acts more expeditiously, more
assuredly and more severely. The precedents collected by
Hatsell[23] suggest
that for the attainder procedure to be invoked, the party must have committed
some act which by nature is a crime under the
existing law. The practice (not
always observed) was to allow the accused to defend themselves with counsel and
witnesses before
both
Houses.[24] Sir John
Hawles justified the practice on the ground that ‘it is no injustice for
the supreme power to punish a fact in a higher
manner than by law established,
if the fact in its nature is a crime, and the circumstances make it much more
heinous than ordinarily
such crimes
are’.[25] Even
so, Parliament in these proceedings was not bound by law with respect to the
substance of the offence, the procedural and evidentiary
rules or the
punishment. The last bill of attainder was enacted to attaint the Earl of Kellie
and others in 1746 and the last bill
of pains and penalties was enacted against
Queen Caroline in
1820.[26]
The
framers of the US Constitution reacted to the post independence wave of ex
post facto laws that victimised
loyalists[27] by
expressly forbidding ex post facto laws in its first article. However, in
many cases, the Supreme Court has treated the ban as part of the Constitution's
implementation
of the doctrine concerning the separation of powers. In
Fletcher v Peck, the Court concluded that bills of attainder were
‘legislative judgments and an exercise of judicial
power’. [28]In
United States v Brown, the Court stated that the attainder clause was not
intended as a narrow, technical prohibition, ‘but rather as an
implementation
of the separation of powers, a general safeguard against
legislative exercise of the judicial
function’.[29]
The view that the ban on ex post facto law is a necessary implication
of the separation of powers is shared by the Privy Council and the High Court of
Australia. The Privy
Council made its definitive pronouncement in Q v
Liyanage, an appeal from the Ceylon Supreme
Court.[30] The
constitution of Ceylon (now Sri Lanka) did not expressly prohibit ex post
facto legislation. The two laws examined by the Privy Council constituted a
legislative scheme designed to facilitate the trial, conviction
and enhanced
punishment of certain persons accused of an attempt to overthrow the lawfully
established government of Ceylon. The
Privy Council struck down the laws as
repugnant to the separation of powers ordained by the constitution and observed
that ‘if
such Acts as these were valid the judicial power could be wholly
absorbed by the
legislature’.[31]
The early thinking in Australia was that the Commonwealth
Constitution’s division of powers did not prohibit ex post facto
law. Thus in King v
Kidman,[32]
a law that made the offence of conspiracy to defraud the Commonwealth an
indictable offence with retrospective effect was questioned
not on the grounds
of attainder or separation of powers but on the basis that it did not fall
within any of the enumerated the subjects
of Commonwealth legislative
power.[33] The
argument found favour only with Chief Justice Griffith who found that in general
ex post facto law was impossible to classify under any of the
placita of powers vested in Parliament. The true category to which such
laws belong he stated was ‘control over the liberty of the
subject’
or ‘reward and punishment of citizens who deserve well or ill of the
State’.[34]
Nevertheless, he did not regard the impugned law as unconstitutional as it
merely put into statutory form, an existing common law
offence.[35]The other
judges rejected the argument as a matter of construction stating that that the
power to legislate on a subject contained
the power to make laws having
retrospective
effect.[36]
Kidman
stood for 75 years until the Mason Court in Polyukhovich v Commonwealth
entertained the challenge to the War Crimes Act 1988 based on the
separation of powers. Polyukhovich, an immigrant, was charged with war crimes
that he allegedly committed during the
German occupation of the Ukraine. The
alleged acts were not punishable under Australian law although they would have
been had they
been committed in Australia. The charges were made possible by
amendments to the War Crimes Act enacted in 1988. Polyukhovich challenged
the
Act on grounds, inter alia, that the Act was an invalid usurpation of
judicial power of the Commonwealth. Five of the six judges agreed that the
separation of
powers doctrine barred the enactment of laws having retrospective
penal effect[37] and
Justice Dawson assumed it for the purpose of
argument.[38] However,
four of these judges concluded that the Act did not fall within the prohibited
class of statutes. The common theme in their
judgements was that a law that
retrospectively makes an act punishable as a crime does not offend the
separation doctrine provided
it is general and not directed at specified
individuals. Justice Dawson explained that under such law the ‘court is
still left
to determine whether an individual is guilty of having engaged in the
prohibited activity, albeit an activity which took place before
the law created
the offence
...’[39] Justice
McHugh observed: ‘Under such a law, it is still the jury, not the
legislature which determines ... whether the accused
is guilty or innocent of
the charge against him or
her’.[40]
As
I argue later, retrospectivity necessarily involves a degree of specification of
the persons targeted. That aside, the judges were
plainly wrong in denying that
the law was aimed at specific individuals. The preamble to the Act made it clear
that its provisions
were directed at persons who committed serious war crimes in
Europe during World War II and who have entered Australia. The Act applied
only
to Australian citizens or residents accused of specified war crimes committed
during the Second World War in the European theatre.
(ss. 5, 9 and 11) Persons
within this class were few and readily identified. It is also evident that the
judges misunderstood the
scope of the prohibition. Toohey J, echoed the other
justices in concluding that ‘there is not a scintilla of difference’
between the roles of the judge and jury in a trial under this Act and the roles
of the judge and jury in a trial under an identical
law operating
prospectively.[41]
That was correct but was not the point in issue. The question was not whether
the court was assigned a non-judicial task but whether
the legislature had
performed a judicial (or non legislative) function in selecting an identifiable
group for its sanctions. Let
us consider a less emotive hypothetical case.
Statute A statute makes the sale of a standard loaf of bread at a price in
excess of
$1 an offence carrying a penalty of $500. It is prospective in
operation and the legislature has not passed judgment. Compare this
to Statute B
made in 2005 that penalises all persons who in 2004 sold a standard loaf for
more than $ 1. Under each law, the courts
have the function of determining
whether an accused person in fact sold bread at the prohibited price. However,
in enacting the second
law legislature has made a determination of its own -
that all persons who in 2003 sold bread above the stipulated price have
committed
crimes. There is no escape for these persons. They remain liable to
the penalty on conviction as long as the law is in force. As
Deane J wrote in
his dissenting judgment, such a law ‘prohibits nothing, prescribes no rule
of conduct and is incapable of
being contravened since, by its terms, it is
inapplicable to acts committed after its
enactment’.[42]
It is this kind of law that current American jurisprudence regards as
legislative judgments.
The Court could have upheld the law on the basis of
the Nuremberg exception to the constitutional ban, namely the punishment of acts
mala in se, or to employ the words of the ICCPR, acts that are
‘criminal according to the general principles of law recognised by the
community
of
nations’.[43] It
is a reasonable presumption that Polyukhovich, had he committed the alleged acts
would have known that they were crimes. Hence,
the law did not violate the
assurance that the ex post facto ban provides ‘that no future
retribution of society can occur except by reference to rules presently
known’.[44] In
contrast, the retrospective price control law punishes persons who had no idea
that their actions were wrongful at the time they
committed them.
The
objection based on the separation of powers may be restated as follows. When the
legislature enacts an ex post facto law, it does not act in a judicial
manner, though sometimes such enactments follow a parliamentary inquiry. It does
not determine
the matter according to pre-established law, which is the hallmark
of the judicial function. The legislature in such cases passes
political
judgment on particular individuals and in that sense subjects them to an
inquisition without due process. Hence when we
say that the enactment of such
laws involves the exercise of judicial power, what we mean is that the
legislature is making in a
non-judicial manner, a decision that ought to be made
by a court in a judicial manner.
THE PROHIBITED CLASS OF LAWS
I have discussed so far the reasons
in constitutional theory for condemning ex post facto law but have not
considered, except in very general terms, the types of law that are condemned.
The following discussion addresses
some of the conceptual difficulties attending
the delineation of this class.
The chimera of the criminal-civil distinction
The ban in the US
Constitution applies to any ‘Bill of attainder or ex post facto
law’.[45] The
words ‘ex post facto law’, unless superfluous must refer to
laws other than bills of attainder. The question whether the ban applies only to
retrospective
punishment for crimes or extends to similar impositions of
‘civil’ deprivations is one that continues to challenge judicial
minds.[46] In
Calder v
Bull,[47] the
first case in which the question arose, the majority of the US Supreme Court
concluded that the ban was limited to the retrospective
punishment of crimes.
Justice Chase thought that if the ban on ex post facto law was intended
to apply to civil cases, the Fifth Amendment's ban on uncompensated taking of
private property for public use would
have been
unnecessary[48] and
Justice Paterson argued that the ban on contract impairment indicated
‘that the framers of the constitution ... understood
and used the words in
their known and appropriate signification, as referring to crimes, pains and
penalties, and no
further’.[49]
Justice Iredell was emphatic that ‘The policy, the reason and humanity of
the prohibition’ did not extend to civil cases
or ‘cases that merely
affect the private property of citizens’. The Judge thought, erroneously
in my view, that such
an extension would trump some of the most necessary and
important acts of
legislation.[50]
According to this approach, the critical question is whether the law inflicts
punishment for a crime or merely imposes a ‘civil
liability’. The
Supreme Court has never formally departed from this
test.[51] Presently, I
argue from the theoretical standpoint that this test is wholly misconceived. But
first, it is necessary to show how
the Supreme Court itself erased this
distinction by its later rulings.
In dealing with retrospective imposition
of civic disabilities, the Supreme Court has uncoupled ‘punishment’
from ‘crime’
and made retrospective punishment the criterion of
invalidity. In two cases following the American Civil War, Cummings v
Missouri[52] and
Ex parte
Garland,[53] the
Supreme Court struck down laws that excluded persons from specified professions
unless they swore that they did not take part
in the rebellion against the
Union. In Cummings, the complainant was a priest and in Garland, a
lawyer. Each claimed that he was prevented by the ethics of his profession from
taking the oath that was the condition for remaining
in their profession. There
was no question of criminality in these cases and the deprivations were not in
the in the forms usually
associated with crime namely: monetary penalty,
confiscation of property, imprisonment or death. In Cummings the Court
stated that the ‘deprivation of any rights, civil or political, previously
enjoyed, may be punishment’, and
included in this category
disqualification ‘from the pursuits of a lawful avocation, or from
positions of trust, or from the
privilege of appearing in the courts, or acting
as an executor, administrator, or
guardian’.[54]
The unconstitutionality of this category of laws was confirmed in the
leading 20th century cases on the attainder clause. In
United States v
Lovett[55]the
Court struck down a federal law that prohibited the payment of future salary to
three named government employees on the ground
that in the past they engaged in
subversive activities. The Court found that the provision constituted a
‘permanent proscription
from any opportunity to serve the
Government’ and ‘a punishment of a most severe
type’.[56]In
United States v
Brown[57] the
Court invalidated a law that made it a crime for a member of the Communist Party
to hold office in a labour union during membership
or within five years of the
termination of membership. In Fletcher v
Peck[58]
the court ruled unconstitutional a law that rescinded a land grant
considered to have been tainted with corruption although the current
owner was
innocent of wrongdoing. In Burgess v Salmon the Court invalidated a law
that applied a tobacco tax retrospectively and allowed the penalty for
non-payment to be recovered by
a civil suit. The Court stated that the ban on
ex post facto law cannot be evaded by giving a civil form to an
essentially a criminal
penalty.[59] These
decisions extend the ban to enactments that impose deprivations having little
resemblance to punishments traditionally associated
with crime.
I argued
previously that the notion of a retrospectively created crime makes no sense for
a given meaning of crime. The legal concept
of crime is of relatively recent
origin. Until recently the law did not differentiate wrong into tort and crime.
Wrongs existed as
Winfield notes in the state of ‘viscous
admixture’.[60]
The genesis of crime is traceable to the start of Crown prosecutions. The Crown
always prosecuted wrongs against itself such as treason.
The reason why the
Crown intervened to prosecute wrongs committed by subjects on other subjects is
less clear though as Benson suggests,
it gained financially by the forfeitures
that resulted from
convictions.[61] Later
as the state progressively took on the role of social and economic regulator and
provider, parliament legislated to create
crimes in furtherance of
policy.[62]
Blackstone’s distinction between mala in se (acts wrong by
their nature) and mala prohibita (acts prohibited by the state) remains
useful. [63] Mala
in se are acts that are wrongs by the moral values of the community. In
England these were established as legal wrongs through the build
up of common
law precedent. The idea of a retrospective offence mala in se makes no
sense at all. There can be technical reasons why a particular incident of
mala in se escapes punishment. The most dramatic examples concern war
crimes or crimes against humanity where defendants often advance the defence
of
lawful orders. Crime committed beyond the limits of national jurisdictions offer
other examples. Retrospective legislation to
provide for redress or punishment
in these cases is not considered repugnant to the ban on ex post facto
law. This is the ‘Nuremberg principle’ implemented by international
treaty law on human rights. Thus Article 17.2 of
the ICCPR and 7.2 of the ECHR
permit ‘the trial and punishment of any person for any act or omission
which, at the time when
it was committed, was criminal according to the general
principles of law recognised by civilised
nations.’[64]
The logic of this exception is apparent. Persons who commit these kinds of acts
usually know that they are serious wrongs against
the general norms of society.
Hence retrospective trial and punishment of such acts do not defeat legitimate
expectations but only
the hopes held by wrongdoers of getting away with their
heinous acts.
Mala prohibita raise by far the more difficult issues.
In theory, the state can make any act a crime in the sense of mala
prohibita. As Lord Atkin observed, ‘The domain of criminal
jurisprudence can only be ascertained by examining what acts at any particular
period are declared by the State to be crimes, and the only common nature they
will be found to possess is that they are prohibited
by the State and that those
who commit them are
punished.’[65]
There is always the problem of circularity in defining a crime. Glanville
Williams regards a crime as a ‘legal wrong that
can be followed by
criminal proceedings which may result in
punishment’.[66]
A crime by this definition is an act declared by the legislator to be a crime
entailing punishment. Williams denies that this is
a circular definition
pointing out that a criminal proceeding is one that attracts special procedural
and evidentiary rules not applied
in civil
proceedings.[67]
Williams is mistaken to think that the attachment of procedural and evidentiary
requirements cures the circularity of the definition.
It simply means that the
law maker can make any act a crime which then attracts the procedural and
evidentiary constraints. The
central element of Kenny’s definition of a
crime is harm caused by human conduct that the sovereign power desires to
prevent
by means including the threat of punishment. He also notes that the
prosecution of crimes attract legal proceedings of a special
kind.[68] All these
definitions postulate that a crime in the modern sense is any act designated as
a crime by the state but by the same token
they indicate that the state cannot
convert past innocent acts into crimes, as crime must concern a prohibited act.
A retrospective
crime makes sense only if crime is differently defined as any
act, past or future, that the state chooses to punish whether or not
it is
lawful. Such a definition carries the monstrous proposition that the state may
at its discretion lawfully inflict pain on any
person for doing what is lawful.
If it makes little sense to talk of retrospective crimes, it makes even less
sense to speak of retrospective civil liability. The
most important feature of
civil liability is that it is not punishment but reparation. Civil wrongs give
rise to obligations to repay
debts, to compensate for loss caused by wilful or
negligent actions or breach of contract, to render specific performance of
contractual
undertakings or to effect restitution of unjust gains. In each case
the obligation is to make reparation, to restore the party harmed,
as far as
possible, to the position before the wrong was committed. A person cannot incur
such an obligation if he has acted lawfully.
Where there is no breach of
obligation, there is no question of civil liability and the legislative
imposition of detriment amounts
to the infliction of pain on innocent citizens.
Hence, the civil-criminal distinction is unsustainable as a test of
unconstitutional
attainder. Lehmann proposes that the proper question is whether
the statute is punitive or regulatory in
nature,[69] but this
test has its own serious limitations.
Punishment – a useful but insufficient test
The orthodox
view is that the ban prevents ex post facto imposition of
‘punishment’ but not regulatory
devices.[70]
Punishment in its ordinary sense is not synonymous with harm but is associated
with response to wrong doing. Punishment may be motivated
by retribution,
rehabilitation, prevention, deterrence or a combination of
them.[71] In the case
of laws that offend nulla poena sine lege the increased punishment
relates to previous wrongdoing. Strictly speaking laws that offend nullum
crimen sine lege do not impose punishment but inflict of harm. Infliction of
pain for an innocent act is punishment only in a perverse sense. A child
is
punished for behaving badly and a criminal is punished for committing a crime.
On the contrary, a sadist who inflicts pain on
a victim or a robber who takes
property does not impose punishment but causes wrongful harm. Likewise a
legislature that imposes
detriments on selected individuals out of spite or for
political gain or indeed in the prosecution of state policy does not impose
punishment but causes intentional harm to a selected individual or group. It is
evident that punishment in the conventional sense
is an inadequate concept on
which to enforce the principle nullum crimen sine lege. The more general
concept of detriment better explains the operation of this rule.
The types of
detriment that has attracted the ban include disqualification from
office,[72]forfeiture
of property,[73]
disenfranchisement,[74]and
retrospective tax
penalty.[75] As
against these, the Supreme Court has upheld laws that take away the right of
convicted felons to practice
medicine[76]and to be
employed in waterfront labour
organisations[77]although
the laws clearly operated to impose detriments in addition to penalties already
prescribed by law. In an influential student
comment in the Yale Law
Journal[78]Dershowitz
urged the abandonment of the ‘punishment’ test saying that it
involves inexact and emotive distinctions that
in some cases are difficult to
achieve. He proposed instead that the attainder clause should be understood as
banning legislative
trial and not legislative
punishment.[79]
Dershowitz asks how the following two statutes can be distinguished. (1)
‘No person afflicted with a contagious disease shall
teach school’
and (2) ‘John Jones, because he has a contagious disease, shall not teach
school’. Only the second
law is contrary to the attainder ban, but
Dershowitz argues it is no more punitive than the first law. He says that the
second statute
offends the attainder clause not because of the
legislature’s intent to punish but because of the legislature’s
application
of its general legislative mandate to a specific individual.
Dershowitz’s assessment that the two laws are equally detrimental
is
questionable. Firstly, the under the second law Jones cannot avoid the detriment
by showing that he is free of disease and secondly
the first law does not
discriminate against him whereas the second does. The test of legislative trial
remains inadequate even when
the two statutes are assumed to be equally
detrimental.
Legislative trial - an inconclusive test
The first and obvious
point to make is that when the legislature selects a person or group for
punishment, it does not always conduct
a trial. The most abhorrent instances
of ex post facto law are not those where a person is accused and tried by
the legislature but those where the legislature punishes without trial,
where no
charges are laid and no defence is heard. It is unhelpful to equate the
enactment of these laws to trials as they represent
the classic cases of
punishment without trial. A law that retrospectively punishes all persons who
supported the Communist Party
will fail the attainder clause not because of
legislative trial but because the target group are identifiable and are denied a
legal
way of avoiding punishment. The legislature in this case has not
‘tried’ this group but has determined as a matter of
policy that
they ought to be punished if indeed the courts find them to have supported the
Communist Party. In United States v Brown the Supreme Court stated that
‘Congress may weed out dangerous persons from the labour movement but must
do so by rules of
general applicability. Congress possesses full legislative
authority, but the task of adjudication must be left to other
tribunals’.[80]
A necessary implication of this injunction is that the legislature also cannot
impose detriment as an arbitrary projection of its
power.
The problems with the ‘punishment versus regulation’
test
The US Supreme Court has sought to exempt from the attainder
clause, regulatory or prophylactic measures that have no punitive end
but
retroactively defeat vested rights. This test like the others discussed, fails
to account for all of the Court’s decisions.
The Supreme Court has upheld
laws that took away the right of convicted felons to practice medicine and to be
employed in waterfront
labour organisations in addition
to penalties already prescribed by law. These laws were regarded as prophylactic
although permanent exclusion from occupations
is a known form of punishment.
Conversely, in United States v Brown, a purportedly prophylactic measure
involving the exclusion of past communists from labour organisations was struck
down on the ground
that the legislature had thereby determined that past
membership in the Communist Party made persons unsuitable to engage in
designated
occupations.
How is the exclusion of communists from public
office different to the exclusion of persons with contagious diseases from
school teaching
or grand mal epileptics from driving? As Dershowitz points out,
in the latter cases the legislature does not have to engage in a
‘trial’ since the danger to society is conveyed by the established
meaning of the term employed to describe the
group.[81] A
contagious disease is communicated on contact. Grand mal epilepsy results in
sudden fits. The effects of these disabilities are
so well known that the only
question for a court is whether the excluded person suffers the disability.
The corollary of the last discussed proposition is: where the danger to
society from the disability is not palpable, the exclusion
without judicial
trial of the issue amounts to unfair treatment and hence a form of detriment
without trial. In the law which proscribes
sufferers of grand mal epilepsy from
driving motor vehicles, the words ‘sufferers of grand mal epilepsy’
is actually
shorthand for the condition which makes persons incurably prone to
unpredictable and uncontrollable fits. Behind the apparent specificity
of the
words lies a rule of such generality that its enactment properly belongs to the
legislative branch. In contrast, as the Supreme
Court states in Brown it
is a fallacy ‘that membership in the Communist Party, or any other
political organization, can be regarded as an alternative,
but equivalent,
expression for a list of undesirable
characteristics’.[82]
The law that disenfranchises communists does not enact a general rule but
imposes an arbitrary sentence.
The effect of United States v Brown is
that a law will be treated as regulative only if: (a) it is not retributive in
aim or motive and is not punishment in the conventional
sense (b) does not
arbitrarily select persons for detriment and (c) does not adjudge an individual
or group to be dangerous to society
without a judicial except when they suffer a
condition that is the semantic equivalent of the
danger.[83] Many laws
previously upheld by the Supreme Court would have failed this test. In
particular, the test throws in serious doubt, the
cases concerning the
disqualification of convicted
felons.[84] It is
arguable that ‘convicted felon’ is not the semantic equivalent of a
person with undesirable character, as it is
not universally accepted that a
person who commits one felony is incapable or redemption and reform.
If
this approach is accepted, it calls into question the practice of legislative
impositions based on findings of a tribunal that
does not follow the curial
process. In these cases the legislature does not conduct a trial but imposes
detriment without granting
the affected persons the benefit of a judicial trial.
In the Ceylon case of Kariapper v
Wijesinha,[85]the
Privy Council considered whether a law that imposed civic disabilities
(including expulsion from Parliament and disenfranchisement)
on the basis of
findings of corruption reported by a Royal Commission of Inquiry, violated the
attainder ban implied in that country's
constitution. The judges rejected the
challenge on two grounds. They held that the imposition of the civic
disabilities was not punishment
but a measure to ‘keep public life clean
for the public
good’.[86]On the
question of legislative judgement, their Lordships stated that ‘it is the
commission's finding that attracts the operation
of the Act’ and that
Parliament ‘did not make any findings of its
own’.[87] This
decision is questionable as Parliament in adopting the commission's findings
arguably made a judgment of its own. The commission
did not follow the normal
rules of evidence and criminal procedure and did not convict the plaintiff of
any criminal offence. His
civic rights were extinguished by a political act
following an extraordinary process established ex post facto.
Can the ban on attainder apply to prospective provisions?
An ex
post facto law visits persons with detriment on account of past conduct.
Dershowitz in the Yale Law Journal comment argued that that
retrospectivity is not essential for a law to be called a bill of attainder. He
points to the example of
the Act for the Attainder of the pretended Prince of
Wales of High Treason 1700 that besides attainting the prince made it
treason for a person to correspond with him in the
future.[88] The
example in my view is unsound. The Act was prospective insofar it created a new
obligation on subjects to refrain from corresponding
with the prince. However,
it was retrospective in relation to the prince himself. It imposed on him an
additional retrospective detriment
on account of past conduct namely, the loss
of his freedom of communication by correspondence. As I argue presently,
retrospectivity
occurs whenever an individual is selected for punitive
treatment.
Dershowitz’s concern was that the requirement of
retrospectivity may defeat the object of the attainder ban. It was fuelled
by
certain decisions of the Supreme Court that validated penalties imposed on
specified persons on the ground that the penalties
serve to prevent future harm
that may be caused by such persons. However, these decisions do not stand up to
close scrutiny and since
Dershowitz wrote his essay, the Supreme Court has
disapproved of them. The main offending case is American Communications
Association v
Douds,[89]in which
the Supreme Court considered the validity of a law that disadvantaged labour
organisations whose officers had not filed the
so called
‘non-communist’ affidavits. This precedent was overturned by the
Supreme Court in United States v
Brown.[90] It is
hard to find a clearer example of Congressional judgment of guilt on account of
past conduct, than the law considered in Douds. Congress having
investigated the activities of communists determined that they were not fit to
hold office in labour unions. The
disqualification from office was based on past
conduct. This is the view that the Supreme Court reached in Brown when it
found that the law disqualifying communists was ‘to purge the governing
boards of labour unions of those whom Congress
regards as guilty of subversive
acts and associations and therefore unfit to fill the positions which might
affect interstate
commerce’.[91]
Specification causes retrospective effect
Specification of persons
for detriment may be done by naming the persons or by defining a class in a way
that enables the identification
of the persons targeted for detriment. A law
that directly inflicts detriment on specified persons is necessarily
retrospective in
effect. How so? The critical distinction to notice here is
between prescription of detriment and infliction of detriment.
While detriment can be prescribed for future conduct, it is impossible to
inflict detriment on account of future conduct
that may or may not occur. If
detriment is inflicted on specified persons, it takes effect irrespective of
what happens in the future.
Therefore, the reason for inflicting the detriment
must relate to the past. The motivator may be past reprehensible conduct or
there
may not be a discernible reason for inflicting pain. If it is the latter,
the pain is inflicted on the persons for being who they
are and who they have
been. Either way, the law is retrospective in operation.
What if the law
that selects specified persons is prophylactic? Let us consider the following
laws. Law 1 states that ‘any person
who in the opinion of the mental
health tribunal is likely to engage in harmful behaviour may be interned by
order of court’.
Law 2 states that ‘If in the opinion of the mental
health tribunal Titius is likely to engage in harmful behaviour he may be
interned by order of court’. Both laws promote public safety. Law 1 is
prospective and defensible against the attainder ban.
Law 2 is not as it makes
Titius uniquely liable to its process leaving out others in that class. Assuming
that this is detriment,
there is no reason for inflicting it except that Titius
is who he is and has been.
Judicial detention orders - the dangerous prisoner
cases
Deprivation of liberty by detention is a central case of punishment
and usually involves the aims of retribution or deterrence. Hence
the detention
of prisoners beyond their initial sentence presumptively offends the principle
nullum crimen, nulla poena sine lege. There are certain types of
detention that are considered outside the ban. They include detention on grounds
of mental illness, communicable
disease, illegal immigration, national security,
criminal investigation and remand pending trial. Security related detention is
usually
executively determined while detention on health grounds and remand are
judicial acts. Except in the problematic case of national
security detention,
detainees are treated differently from prisoners on punishment and are kept
subject to strict conditions concerning
treatment and release.
In Kansas
v Hendricks, the US Supreme Court unanimously found the detention provisions
of the Kansas Sexually Violent Predator Act did not violate the
substantive due
process, ex post facto and double jeopardy provisions of the
Constitution. The Act was saved by its limited scope and its panoply of
safeguards. The Act authorised ‘civil commitment’ of convicts
who,
due to ‘mental abnormality’ or ‘personality disorder’
are found likely to engage in ‘predatory
acts of sexual violence’.
In the Opinion delivered by Justice Thomas the Court ruled that ‘a finding
of dangerousness,
standing alone, is ordinarily not a sufficient ground upon
which to justify indefinite commitment’ and observed that civil
commitment
has been allowed when statutes have combined ‘dangerousness’ with an
additional factor such as ‘mental
illness or mental
abnormality’.[92]
The Kansas statute required proof of the mental condition beyond a reasonable
doubt, limited detention to one year at a time and
provided effective recourse
against orders.
In sharp contrast, the Dangerous Prisoners (Sexual
Offenders) Act 2003 (Qld) considered in Fardon v Attorney-General (Qld)
dispenses with the mental health qualification and allows the court to
impose continuing detention on a prisoner if it is satisfied
that there is
serious danger in the form of ‘an unacceptable risk that the prisoner
[would] commit a serious sexual offence’.(s.13(2)) The court may take
account of the prisoner’s criminal history and while it may consider
medical, psychiatric and psychological
reports it need not come to a finding of
mental illness.(s.45(4)) The detainee is deemed to remain as a prisoner
(s.14(2)) and as the dissenting Justice Kirby stated, ‘After the judicial
sentence has concluded, the normal incidents of punishment
continue’.[93]
The majority did not disagree with this characterisation but focused on the
prophylactic aspect of the detention. There is no reason
to doubt the protective
goal of the law. Yet, a protective measure can also be punitive, especially when
it is disproportionate or
ill
adapted.[94] Such a
law offends the ex post facto principle in two ways. It exposes future
offenders to multiple punishments for the same offence and it makes serving
prisoners retrospectively
liable to additional punishments.
Whereas the
Queensland law allowed extended imprisonment by further detention, the
Sentencing Act 1989 (NSW) considered in Baker provided for the denial of
parol rights to prisoners of a defined class who are subject to ‘non
release recommendations’
(euphemism for never to be released) by the trial
judge. These prisoners are not eligible to parol unless the State Supreme Court
finds ‘special reasons exist that justify’ the making of parol
orders. Much time was spent on the question whether ‘special
reasons’ imported an intelligible standard. The majority found that it
did but their laboured case has no bearing on the question
whether this law
offends the principle nulla poena sine lege.
Neither statute was
challenged on grounds of ex post facto effect. The reason was the High
Court’s long held view that State parliaments possessed indivisible
plenary power within their
jurisdictions including the competence to enact ad
hominem law and ex post facto law. Counsel for the prisoners relied
instead on the much narrower ground established by Kable v
DPP.[95] The High
Court in that case struck down the Community Protection Act 1994 (NSW) which was
designed to secure the further detention of a single named prisoner for public
safety reasons. Confronted by its
own dogma concerning the plenary power of
State parliaments, the Court found means of invalidating the statute in the
implications
of the separation of powers doctrine in the federal Constitution.
Observing that State courts were integral parts of the federal judicial
hierarchy the majority concluded that the power to detain
a named individual was
incompatible with the court’s exercise of federal judicial power and hence
could undermine public confidence
in the federal judicature in a way that
offended the separation of powers in the federal
Constitution.[96]
In Fardon and Baker the Court regarded the more general power
to impose preventive detention on classes of prisoners as compatible with the
federal judicial
role of state courts. It is possible to take the contrary view.
Under the legislation examined in Kable, the court’s power was
exhausted with one prisoner whereas under the laws considered in Baker
and Fardon the court has continuing authority to make detention orders
with respect to a class. It is arguable that if the law in Kable was bad
for the exercise of federal judicial power, the laws in Baker and
Fardon are worse. Each of these laws would presumably fail if enacted as
federal legislation enlisting federal courts. They would have failed
for
investing non-judicial powers in federal courts contrary to the rule in
Boilermakers’
Case.[97]They
would also fail on the nullum crimens, nulla poena sine lege rule under
the authority of Polyukhovich. The High Court’s position regarding
State courts as revealed by the judicial detention cases is that ex post
facto State laws are not unconstitutional except to the extent that they
compromise the federal judicial role of State courts.
Legislative intervention in judicial proceedings
Judicial
proceedings are instituted to vindicate rights and enforce duties. Hence every
law that alters the rights in issue before
a court imposes detriment on a party
with retrospective effect and hence prima facie invites condemnation for
ex post facto effect. However, if the intervening law is purely
prophylactic in aim it may not offend the ban. Take the case of the grand mal
epileptic
whose application for a driving licence is rejected. If the law does
not permit the licensing authority to deny the sufferer a licence
on this ground
and its decision is challenged, the public interest may require the
disqualification of grand mal epileptics generally
and further validate the
refusal of licences to such persons in the past. Such a law is purely
prophylactic although it may impact
on pending cases. It does not select persons
in similar conditions for dissimilar treatment and has no punitive intent.
In
Nelungaloo Pty Ltd v
Commonwealth,[98]the
High Court considered the validity of an order for the acquisition of wheat made
under a war time
regulation.[99]There
were serious doubts on the question whether the law authorised the acquisition
of future as opposed to existing crops. The validity
of the acquisition order
was challenged but while the case was pending Parliament enacted legislation to
clarify the law and to validate
orders already
made.[100] The
plaintiff argued, inter alia, that the retrospective validation of the
regulation under challenge in the court was a usurpation of judicial power. It
was critical
to the decision that the acquisition order was not directed
exclusively at the wheat grown by the plaintiff, but applied to the entire
Australian harvest. The only judge to consider the question, Dixon J, dismissed
the objection stating: ‘It is simply a retrospective
validation of an
administrative act and should be treated in the same way as if it said that the
rights should be the same as they
would be, if the order was
valid’.[101]
The law would have survived a challenge on ex post facto grounds as it
was prophylactic in nature, had no punitive aim and did not involve the
legislature in a ‘trial’.
In Nicholas v The
Queen[102]
the High Court upheld the Crimes Amendment (Controlled Operations) Act 1996
(Cth) that required courts to disregard offences committed by official agents in
anti-narcotics operations in exercising discretion
to admit evidence of
importation. The enactment followed the High Court’s re-iteration, in
Ridgeway v The Queen, of the public policy discretion to exclude evidence
of official wrong
doing.[103] Nicholas
did not claim that the amendment would affect the jury’s verdict but
argued that the law infringes or usurps the judicial
power of the Commonwealth
in two ways. Firstly, it was contended that the limitation of the public policy
discretion denied courts
the authority to protect their integrity and dignity
which is an attribute of judicial power. Although the Justices McHugh and Kirby
agreed, the majority viewed the limitation as one of procedure and evidence and
hence ultimately within legislative
power.[104]
Secondly, it was argued for Nicholas that the law, though facially general, was
directed at a small group of known persons who were
subject to ‘controlled
operations’, hence it was similar to the usurpation of judicial power
condemned in Liyanage. The argument found no favour with the majority
mainly due to the prospective operation of the law.
Whereas in
Nelungaloo and Nicholas the legislation was general and impacted
incidentally on a pending case, the law challenged in The Queen v Humby; Ex
parte
Rooney[105] was
directed at specified judicial decrees. It had the aim of extinguishing the
constitutional right of the plaintiffs to have their
cases under Commonwealth
law heard by a judge. Section 72 of the Australian Constitution allows
Parliament to vest federal judicial power in State courts. In Knight v
Knight,[106] the
High Court had ruled that the constitutional separation of powers required that
federal judicial power devolved on State courts
must be exercised by judges of
the State court and that the Master of the Supreme Court of South Australia was
not a judge. One effect
of the decision was to call in question all the
maintenance orders made by the Master under section 84 (1) of the Matrimonial
Causes
Act 1959 (Cth). The Commonwealth Parliament responded by enacting the
Matrimonial Causes Act 1971 with the sole purpose of validating the
Masters' decrees notwithstanding Knight v Knight. The Act was promptly
challenged. In my view, the Act was patently unconstitutional as it sought to
validate specific orders that
had been judicially determined to be
unconstitutional. The judges who addressed this issue engaged in exercises of
mind boggling
casuistry to deny that the Act had this effect. McTiernan J
claimed that the impugned decrees were validated not as judicial decrees
but as
legislative
enactments.[107]Stephen
J maintained that the orders of the Master remained ineffective but ‘the
sub-section operates by attaching to them ...
consequences which it declares
them to have always had and it describes those consequences by reference to the
consequences flowing
from the making of decrees by a single judge of the Supreme
Court of the relevant
State’.[108]Mason
J declared that the order of the Master does not acquire validity ‘merely
because the statute attributes to it the effect
it would have had, had it been a
judicial
determination’.[109]
The judges evidently saw a distinction between validation of an order and the
statutory attachment to an invalid order of consequences
which the order would
have generated had it been valid. The legal effect though was exactly the same.
The critical differences between
the laws considered in Nelungaloo and
Humby is that the former was general and prophylactic whereas the latter
was specific and non-prophylactic. In fairness it must be noted
that the
Matrimonial Causes Act 1971 had no sinister design and had no punitive
intent. It was enacted to cure a defect that resulted from earlier understanding
of
the effect of s. 72 of the Constitution that federal jurisdiction vested in
State courts could be exercised by officers of the court. Nevertheless the Act
denied certain
parties of a constitutional right albeit one they did not know
they had until Knight v Knight.
In contrast the law considered in
Australian Building Construction Employees’ and Builders
Labourers’ Federation v Commonwealth (Cth BLF
Case)[110]
was straightforwardly punitive. The law was made for the sole purpose of
destroying the status of the BLF as a registered trade union.
The BLF was
considered a rogue union by the Commonwealth and State governments and by the
Australian Council of Trade Unions (ACTU).
BLF was registered under the
Conciliation and Arbitration Act 1904. Registration conferred an
extensive range of rights and privileges. The Act provided for two methods of
deregistration, one judicial,
and the other quasi-judicial. The judicial mode
led to a determination by the Federal Court on objective criteria set out in the
Act.[111]The
quasi-judicial method culminated in a determination of the Conciliation and
Arbitration Commission based on a more broadly expressed
set of social
concerns.[112] In
its determination to strip the BLF of its statutory status, the federal
government secured the passage of the Building Industry Act 1985 that
made special provision for deregistering the BLF. The Act empowered the
Commission on the application of the Minister, to make
a declaration that the
BLF or an officer or employee thereof had engaged in industrial action.
Following such a declaration, the
Minister was authorised on public policy
grounds to order the cancellation of registration and to impose certain other
deprivations
on the BLF. The BLF and its members were selected for harsher
treatment under the law. The Act was would have been struck down in
the US even
on the most stringent construction of the attainder ban. Yet, it was challenged
in the High Court only on the narrow
ground that it was not within the
‘conciliation and arbitration’ power set out s. 51 (xxxv). The court
rejected the
argument.[113]
The
Commission duly made the requisite declaration authorising the Minister to
deregister the BLF. The BLF went back to the High
Court complaining of a denial
of natural justice and sought orders to quash the declaration and to prohibit
the Minister from ordering
the deregistration of the union. While this case was
pending Parliament passed two more laws, the Builders Labourers' Federation
(Cancellation of Registration) Act 1986 and the Builders Labourers' Federation
(Cancellation of Registration - Consequential Provisions) Act 1986. The
first Act directly cancelled the registration of the BLF and the second Act
imposed consequential disabilities on the officers
and members of the union. BLF
returned to the High Court complaining that the two Acts amounted to an exercise
of judicial power
and ... an interference with [the] Court's exercise of the
power ...'.[114] The
challenge was unanimously rejected on the premise that the legislation simply
deregistered the Federation, thereby making redundant
the legal proceeding and
observed: ‘It matters not that the motive or purpose of the Minister, the
Government and the Parliament
in enacting the statute was to circumvent the
proceedings and forestall any decision which might be given in those
proceedings’.[115]
The ex post facto nature of the law escaped the court’s attention.
In enacting these laws, Parliament itself adjudged that the BLF was deserving
of
punishment in the form of deregistration. It is hard to find a clearer case of a
legislative trial and punishment in modern times.
4. SUMMARY
The discussion of the theory and practical reasons for
objecting to ex post facto law exposes the following types of law to
condemnation.
It is not surprising that ex post facto laws of the kind criticised in this essay are uncommon in countries that maintain acceptable levels of constitutional government. Yet, the attraction of this type of law as means to short term ends, both good and bad, is ever present. It is tempting to think that democracy is a sufficient safeguard against gross abuse of ex post facto law but history cautions against such faith. Hence even where constitutions place no formal limits, the rule of law demands that lawmakers adopt restraints on retrospective legislation as a matter of constitutional practice. Constitutional practice owes much to the pressure of public opinion and I hope that this discussion will be a helpful contribution to public understanding of the reason and reach of the objection to ex post facto law.
[*] Professor of Law
and Director, Centre for Public, International and Comparative Law, T C Beirne
School of Law, University of
Queensland.
[1]
Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 210 ALR
50.
[2] Baker v R
[2004] HCA 45; (2004) 210 ALR
1.
[3] See for
example New Zealand Bill of Rights Act 1990 s 26(1); Canadian Charter of Rights
and Freedoms s 11(g); Constitution of India Art 20, German Grundgesetz Art
103.
[4] Sir William
Blackstone, Commentaries on the Laws of England vol 1, (London: T.
Cadell & W. Davies, 14th ed, 1803)
44-45.
[5] [1884] USSC 84; 110 US
516, 535-536
(1884).
[6] [1967] 1
AC 259
[7]
Building Construction Employees’ and Builders Labourers’
Federation (NSW BLF Case) (1986) 7 NSWLR 372. See my criticism of this
decision in S Ratnapala, Australian Constitutional Law: Foundations and
Theory (Melbourne: Oxford University Press, 2000) 112-114.
[8] Polyukhovich
v Commonwealth [1991] HCA 32; (1991) 172 CLR 501,
631.
[9] W
Blackstone, n 2 above, 46.
[10]Kring v
Missouri [1883] USSC 102; 107 US 221 (1883); Dobbert v Florida [1977] USSC 115; 432 US 282 (1977);
Carmel v Texas [2000] USSC 37; 529 US 513
(2000).
[11] [1990] USSC 113; 497 US
37, 46 (1990)
[12]
[1804] USSC 10; 3 Dall. 386, 390
(1798).
[13] [2000] USSC 37; 529 US
513, 532
(2000).
[14] [2003] USSC 4778; 539 US
607,
615.(2003)
[15]
Ibid 650.
[16] Ibid
631.
[17] Ibid
670.
[18] Quoted
from W.B. Gwyn, The Meaning of the Separation of Powers (1965: New
Orleans: Tulane University Press, 1965)
39.
[19] [1984] USSC 181; 468 US
841, 846-47 (1984) quoting Nixon v Administrator of General Services [1977] USSC 147; 433
US 425, 468
(1977).
[20] A
Dershowitz, ‘Comment: The Bounds of Legislative Specification: A Suggested
Approach to the Bill of Attainder Clause’
(1962) 72 Yale Law
Journal 350.
[21] L H Tribe,
American Constitutional Law (Mineola: Foundation Press,
2nd ed, 1988)
631.
[22] T.
Cooley, 1 Constitutional Limitations, vol 1 (Boston: Little, Brown &
Co, 8th ed, 1927)
536-537.
[23] J
Hatsell, Precedents of Proceedings in the House of Commons, vol 4
(London: Luke Hansard & Sons, 1818) 85-96, 100-102, 235-249,
323-346
[24] I May,
Treatise on the Law, Privileges, Proceedings and Usage of Parliament,
(London: Butterworths, 19th ed, 1976)
66.
[25] Ibid,
99.
[26]Halsbury’s
Laws of England vol 34 4th ed,
522.
[27]
Dershowitz, n 20 above,
331.
[28] [1810] USSC 10; 10 US 87,
136 (1810)
[29]
United States v Brown [1965] USSC 134; 381 US 437, 488
(1965)
[30] n 6
above.
[31] Ibid
291
[32] [1915] HCA 58; (1915) 20
CLR 425
[33] Crimes
Act 1915 ss 2 and
3
[34] n 32 above,
434.
[35] Ibid
436-437
[36] Ibid
441-442 (Isaacs J), 453 (Higgins J), 455-456 (Gavan Duffy and Rich JJ), 460
(Powers J).
[37] n
8 above, 539 (Mason CJ) 631 (Deane J), 689 (Toohey J), 706 (Gaudron J), 721
(McHugh J).
[38]
Ibid 648.
[39] Ibid
647. Compare Mason CJ at 536, Toohey J at 685-686, and McHugh J at
721.
[40] Ibid
721
[41]
Ibid
[42] Ibid
631.
[43] See for
example International Covenant on Civil and Political Rights art 15 para
2
[44] n 8 above,
689.
[45] Art I
§ 9 cl 3 and Art I § 10 cl
1
[46] For an essay
devoted to the argument that the ban on ex post facto law should be
confined to `criminal' offences, see Raoul Berger, ‘Bills of attainder: a
study of amendment by the Court’
(1978) 63 Cornell Law Review
355-404.
[47] n 12
above.
[48] Ibid
394
[49] Ibid
397
[50] Ibid
400
[51] For a list
of cases in which the Court has stated that the attainder clause is confined to
punishment for crimes, see A. Mueller,
`Supreme Court's view as to what
constitutes an ex post facto law prohibited by Federal Constitution' 53 L
Ed 2d 1146 (Annotation). See also Collins v Youngblood [1990] USSC 113; 497 US 37, 42
(1990).
[52] [1866] USSC 23; 71 US
277 (1866)
[53] [1866] USSC 33; 71
US 333 (1866)
[54]
n 52 above,
320
[55] [1946] USSC 104; 328 US 303
(1946).
[56]
Ibid
315-316.
[57] n 29
above.
[58] n 28
above.
[59] [1878] USSC 29; 97 US
381, 385
(1878).
[60] P
Winfield, Province of the Law of Tort (Cambridge: Cambridge University
Press, 1931}
190.
[61] B L
Benson, Enterprise of Law: Justice without the State (San Francisco
Pacific Research Institute for Public Policy, 1990)
62.
[62] J W C
Turner, Kenny’s Outlines of Criminal Law (Cambridge: Cambridge
University Press, 19th ed 1996)
4.
[63] Blackstone,
n 2 above, 54,
57.
[64] See, for
example International Covenant on Civil and Political Rights Art 15(2) and
European Convention on Human Rights Art 7(2).
[65]
Proprietary Articles Trade Association v Attorney-General of Canada and
others [1931] AC 310,
324.
[66] G
Williams, Textbook of Criminal Law (London: Stevens, 1978)
14.
[67] Ibid
14-15.
[68] n 62
above, 5.
[69] M.P.
Lehmann, `The Bill of Attainder Doctrine: A Survey of the Decisional Law',
(1978) 5 Hastings Constitutional Law Quarterly
834.
[70] Tribe, n
21 above,
651
[71] United
State v Brown, n 29 above, 458
[72]
Cummings, n 52 above; Garland, n 53 above.
[73] Fletcher v
Peck, n 28 above.
[74]
Johannessen v United States 255 US 227
(1912).
[75]
Burgess v Salmon, n 59
above..
[76]
Hawker v New York [1898] USSC 67; 170 US 189
(1898).
[77]De
Veau v Braisted [1960] USSC 76; 363 US 144
(1960).
[78] n 20
above.
[79] Ibid
356.
[80] n 29
above, 461.
[81] n
20 above, 352.
[82]
n 29 above,
455.
[83] Wormuth
develops a similar test in treating the imposition of disqualifications as
inherently valid when there is no implicit censorial
judgment of individuals,
but only the derivation of presumptions about character from aspects of common
knowledge or principles of
general psychology. F D Wormuth, ‘Legislative
Disqualifications as Bills of Attainder’, (1951) 4 Vanderbilt Law
Review, 603, 610.
[84] Hawker v
New York n 77
above.
[85] [1968]
AC 717.
[86] Ibid
736.
[87].Ibid.
[88]
n 20 above,
338.
[89] [1950] USSC 56; 339 US
382 (1949).
[90] n
29 above.
[91]
Ibid 460.
[92] [1997] USSC 63; 521
US 346, 358
(1997)
[93] n 1
above, 98.
[94]
Ibid.
[95]
[1996] HCA 24; (1995-1996) 189 CLR
51
[96] Ibid 108,
109
[97]
Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of
Australia [1956] HCA 10; (1956) 94 CLR
254.
[98]
(1947-1948) 75 CLR
495
[99] Order
made under regulation 14 of the National Security (Wheat Acquisition)
Regulations authorised by the National Security Act
1939.
[100] Wheat
Industry Stabilization Act 1946 s
11.
[101] n 99
above, 579.
[102]
[1998] HCA 9; (1998) 193 CLR
173.
[103] (1995)
184 CLR 19.
[104]
Ibid 188-189, 202, 210-211, 238,
275-276.
[105]
(1973) 129 CLR
231.
[106] [1971] HCA 21; (1971)
122 CLR
114.
[107] n 110
above, 239.
[108]
Ibid 231.
[109]
Ibid 249.
[110]
[1986] HCA 47; (1986) 161 CLR
88
[111] Ss.
143(2) and
118A(1)
[112] S.
143A(1) and
(2)(a)
[113]
Queen v Ludeke and others [1985] HCA 84; (1985) 159 CLR
636.
[114] n 108
above
94-95.
[115] Ibid
96-97.
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