What happens to my matter if the law changes after I have been charged?
One of the most challenging aspects of the law is that it changes every day.
Changes occur in two ways:
- New legislation is handed down by Parliament;
- Courts change the way that the law is interpreted or applied.
If there is a change to the law whilst your matter is underway, it can affect the way in which your matter proceeds. It is important to be aware of these changes and the impact they will have on you. This is particularly important in criminal law matters because these changes can affect the outcome of your case.
Changes to the law can be divided into three categories:
DEFINITELY APPLIES TO YOUR CASE
When new laws are introduced, Parliament can specify exactly when the changes will apply. In these cases, the application of the new law is fairly clear.
DEFINITELY DOES NOT APPLY TO YOUR CASE
If a new law comes into effect, it is possible that it will not apply to your case because of the affirmation date of the new law. This is more likely if your matter is already proceeding through the court system. This is because courts are reluctant to find that a law will have retrospective application (ie apply to events that have occurred in the past). Parliament may also expressly insert transitional provisions which indicate that the new law is only to apply from a specific time or event.
MAY OR MAY NOT APPLY TO YOUR CASE
Often, it is not clear whether a new law will apply to your case. This is because Parliament is unable to account for all possible scenarios when drafting the law. In these cases, the High Court of Australia has determined that:
- If the new law affects maters of procedure only – it will apply to all cases; or
- If the new law affects rights or obligations – it will only apply to future cases.
Your lawyer will interpret the new law and develop arguments as to why it should or should not apply. For this reason, it is important to seek legal advice and may not cover important aspects that apply to your individual circumstances. If you have concerns about whether laws apply to your case, you should seek our advice.
Article written by Shelby Smith