Damn it, that's not good news for us. If these four paragraphs...

Damn it, that's not good news for us. If these four paragraphs from the article are correct and adhered to, we won't be getting any compensation at all or the go ahead to resume any conventional or unconventional drilling.


While not expressly identified as a purpose of the Act, it is assumed that the provisions precluding any state liability arising out of the policies and legislation are intended to protect the Victorian government from liability such as that which the NSW government faced in the Metgasco proceedings. The provisions included in the Act operate retrospectively to prevent any liability of the State for the policies implemented by the government from the date of the announcement of the 2012 Fracking Moratorium (24 August 2012).

By virtue of the principle of parliamentary sovereignty²⁶ and a plethora of constitutional case law,²⁷ it is clear that the state parliament has the capacity to enact legislation which affects rights or liabilities retrospectively. While there is a presumption against such legislation operating retrospectively, the presumption is “at best . . . a weak presumption”, rebuttable by clear and express words indicating the intent for the retrospective operation of the legislation.²⁸ Such words are inserted into both the MRSDA and the Petroleum Act by ss7 and 11 of the Act:

“Despite any Act . . . or law to the contrary, the State is not liable in any way for any loss, damage or injury of any kind resulting directly or indirectly from or arising out of" (among other things) the amendments made to the MRSDA and the Petroleum Act or the policies implemented by the Victorian government from 24 August 2012 onwards.²⁹

That preclusion of state liability applies whether the loss, damage or injury was incurred “before, on or after the commencement” of the Act.³⁰ Further, the Victorian parliament has power to make laws in and for Victoria “in all cases whatsoever” and is not constrained by the constitutional limitations applicable to the power of the federal parliament.³¹