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District Court Report

Although the following article by Michael Lee is not very accurate in some areas, but accurate in others it does show you how the legislation was changed over night after Chris' win in the District court, the whole article is included for accuracy.

Beattie agreed with Fitzgerald in 1992, so where's the accountability now?

By Michael Lee - posted Friday, 6 December 2002

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 retrospectively?

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.

Following the Fitzgerald Inquiry the Goss Government introduced the Legislative Standards Act of 1992. The legislation provided, among other things, a framework of principles to consider when framing legislation.

The then humble backbencher Peter Beattie stated:

"The principles include not adversely affecting rights and liberties or imposing obligations retrospectively. During my speech in the debate on the Criminal Justice Amendment Bill, I said that retrospective legislation should be enacted only when a benefit is passed on to someone, not a detriment. That is another important principle."

Why Beattie, a person who prides himself on being man of principle, allowed such a piece of legislation through cabinet, let alone the Parliament, is unclear. Its retrospectivity would cause an obvious detriment to victims of the scams.

However, the issue of retrospectivity was not the only principle tossed out the window.

First, consultation was limited to government agencies. Many of the people affected by the legislation first heard about it through the media.

Among the many recommendations of the Fitzgerald Inquiry was the need for a strong, active committee system that would ensure greater accountability by making the policy and administrative functions of the government more open and accountable.

The Parliament’s Scrutiny of Legislation Committee, which normally reviews legislation and examines whether or not legislation is based upon fundamental principles of good government, was totally bypassed.

Finally, the standing orders of the Parliament, which provide that legislation should be debated some 13 days after a bill is introduced, were changed to make sure this Bill was debated as soon as possible and passed before the recess of Parliament until February next year.

Whatever people think about whether or not these unsuspecting investors should be compensated that is not the issue. The Parliament could have made any number of principled positions such as allowing the claims to go ahead but capping the compensation.

Instead it chose to totally disregard some of the fundamental principles of good government.

Coupled with a decision to reject recommendations by the all-party Public Accounts Committee which called for more transparency on commercial-in-confidence deals between the government and private companies, this has tarnished Beattie's image as a person who was determined to carry forward the Fitzgerald torch.

Thanks Michael Lee,

what nobody knew was that in that legislation was hidden a clause which allowed the Queensland OFT to mount a legal case against Chris Bilborough and although they could have gone after numerous other parties they only went after Chris Bilborough, not that they were out to get him of course. They made him retrospectively responsible to pay $244,000 which was for two properties, they lost on the other six properties and Chris had to Pay the money and people kept the properties and made profits on the sale and kept the money. How this is FAIR is quite confusing, but that is the way it worked.  The tribunal hearing had been heard, the District Court Matter had been heard and Chris had won, and then they write a Retrospective law to beat him, Fair Trading indeed?

Chris could have had this overturned in the high court, as it is against the laws of Natural Justice to make a retrospective law made only for one person that overturns a previous win in the courts, but he was out of money and out of fight at that stage. 

Another interesting point is, did the 8 people that received $125,000 each do so wrongly, if the money they received was fair, why can't others get the same compensation. It is pretty clear this whole thing was wrong and the people had not actually lost money and it is arguable that they should have repaid the Queensland tax payer. It is also arguable that the people that allowed this to happen, the Government ministers and public servants should repay the Taxpayers, but that will never happen.