We can all, sometimes begrudgingly, accept that governments can change
the law – that what today may be lawful, may tomorrow be unlawful. But
how do we feel about the prospect that we could be punished for something
we do lawfully today because next year the government might change the law
As ridiculous as it sounds, the Beattie government did something just
like that that this week when it used it vast majority to ram through the Property
Agents and Motor Dealers Amendment Act of 2002.
This legislation retrospectively took away the rights of some 540
people who had already lodged claims seeking compensation after being
conned by a highly sophisticated scam. In doing so, it disregarded some of
the fundamental recommendations of the Fitzgerald Inquiry.
The scam is well known and involves marketeers, dodgy lawyers, real
estate agents and valuers working together to sell highly over-priced
properties on the Gold Coast to unsuspecting investors.
So great was the scam that the Beattie government introduced
legislation to try and stop it and Minister for Fair Trading Merri Rose
took the unprecedented step of labelling one of the marketeers, Dudley
Quinlivan, the “King Con” of Queensland.
Under the legislation, conned investors were able to take their
grievance to the Property Agents and Motor Dealers Tribunal and, if
successful in proving their case, were entitled to compensation from a
government fund previously known as the Auctioneers and Agents Fidelity
Guarantee Fund. The government would recoup costs from the scammers.
So what went wrong? Put simply the government legislation proved to be
a lemon. Prosecutions against the marketeers failed and the District Court
found that another marketeer, Chris Bilborough, was not liable under the
law to replenish the fund.
In addition, the fund's $101 million in reserves in 1991 had been
milked by successive governments to fund a variety of projects and it now
has less than $2 million in reserves.
In her speech to Parliament, Rose stated that the current potential
liability of the fund was $36.8 million. She also said the retrospective
amendments were necessary because the original legislation never intended
to compensate the claimants.
This, however, seems extremely disingenuous on Rose’s behalf, since
after the first successful compensation case she had issued a press
statement that said: “The Tribunal and the Claim Fund have been
established to protect consumers by providing avenues for them to recover
their losses." She also confirmed that "The Government
underwrites the Claim Fund. We will also take the steps necessary to
recover from marketeers the payments made by the Fund to consumers”.
As Liberal Leader Bob Quinn correctly pointed out, all other arguments
being advanced were peripheral because the starting point should be
whether or not the legislation was based on sound principles. One could
amend the legislation prospectively but to amend retrospectively went
against the grain of what good democratic government was all about. It set
a dangerous precedent.
Quinn is not alone in this position.
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