Legal ineptitude !

Part of the cost of running the Federal government in Australia is the office of this country's chief lawman - the Attorney General.   It has the task of ensuring that the machinations of parliament are within the law and to achieve this legions of the nation's best legal brains scrutinise impending legislation.  It seems that in some cases ineptitude prevails - and they get it wrong !

The High court has just struck down a ruling made in July 2011 aimed at " fixing " a loophole in the Social Security laws.   The sticking point was " retrospectivity ".    This fix was applied to events that occurred before the ruling was passed and the litigant complained that it was unfair to prosecute for an infringement that was not illegal prior to the time this ruling was made.

It seems that the litigant failed to declare an income of $ 7,000 while receiving social security benefits which such income would invalidate - under this ruling.

This High court decision will have serious implications for the national cash flow.   There are about 15,000 people who have been branded " welfare cheats " and who are awaiting prosecution which will attempt to recover lost money.   That date on which the ruling was made will be critical.  Events prior to that have little hope of a successful prosecution and that money lost will not be recovered.

The damage goes deeper.  The people who have already been prosecuted, found guilt and punished will have a case to launch an appeal.   There is a good chance that they will succeed in having any money repaid to the Commonwealth ordered to be returned.    In the event that anyone served prison time from such a prosecution - the way is clearly open for a damages claim.

Obviously, the rulings of the High court are the pinnacle of legal judgements, but many legal people would have seen this coming.   The principle of " restrospectivity " has long been a bogey to be approached with great care when framing legislation.   Common sense dictates that we can not break a law - if no such law exists.   Passing a law that applies to the distant past - simply defies logic.

There is another anomaly waiting in the wings that may someday see the light of day.   In the past, mistakes made by government agencies which involved over payments were written off.   The recipient was not asked to repay the money.    Another " fix " changed direction and now all over payments are vigorously pursued - nomatter where the fault lays.

A matter that could bring a past decision back to haunt the legal eagles of the Attorney General's department !