On 5 May 1992, a group of Cambodian asylum seekers in detention was preparing for their court case in the Federal Court the next day. Many had been in detention since their arrival in November 1989. Their legal team was confident that this detention was not lawful, and they had a hearing in the Federal Court set for 6 May to consider the application for the Cambodians to be released from detention.
What the Cambodians did not know was that that evening, the Labor Government under Prime Minister Keating would rush through a Migration Amendment Bill, supported by the Liberal opposition, which legalised this long detention.
When the lawyers arrived at court the next day, the goal posts had not only shifted, all the rules had dramatically changed.
Eventually the case was heard in the High Court, in Lim v Minister for Immigration (1992) 176 CLR 1. Although the Cambodians lost this application to be released, the High Court held that prior to the amendment of 5 May, they were unlawfully detained. The government again reacted and passed a law that all the detained Cambodians were only entitled to $1 a day for their unlawful detention.
An insulting offer of compensation. I recall a Labor senator telling me that 'a dollar is a lot of money in Cambodia'. 'But we are not in Cambodia.' The senator walked away.
It is not the only time governments have used the Parliament to change the law in order to win cases before the court. It is an unfair practice, as only one party to a court case has the power to do this.
The M68 case decided on Wednesday, which challenged the detention and transfer to Nauru of asylum seekers, was effectively won by the government because they changed the law retrospectively to make sure they would win. Although one judge, Justice Gordon, the newest judge on the court, wrote a strong dissent, the other six judges found for the government, mainly because of the retrospective change.
The change was the insertion of s198AHA on 30 June 2015, with bipartisan support. This amendment was made to operate retrospectively from 18 August 2012.
This was not an arbitrary date, but a critical date when the agreement with the Nauruan Government was made to accept asylum seekers as part of Prime Minister Gillard's attempt to slow the boats, after the High Court threw out the controversial Malaysian refugee swap plan in 2011 in the M70 case.
In August 2012, Labor amended the Migration Act (yet again) after the loss in M70, with reluctant bipartisan support. While the changes were then thought to be watertight, the Government's view changed after the asylum seeker known as M68 commenced her High Court challenge to being returned to Nauru in September 2015.
She claimed the detention in Nauru was not lawful in Nauru, but also that it was really detention by Australia, because all the bills were paid by the Australian government.
The challenge revisited the 24-year-old Lim case which had set out principles about the lawfulness of detention. Detention had to be for a proper administrative purpose, such as assessing a case. It could not be punitive because punitive detention could only be ordered by a court — not a bureaucrat.
The majority of the High Court held that a question of interpretation of Nauruan law was not needed. As a footnote, the High Court of Australia is also the highest court of appeal for Nauru, but it was Australian law, not Nauruan law, that was relevant here.
The addition of s198AHA on 30 June 2015, with retrospective effect back to 18 August 2012, meant that while the government may not have acted within the law to transfer M68 to Nauru originally, that didn't matter because the law was changed retrospectively, so the questionable legal actions were all fixed.
The Lim principle was considered, but for three judges it did not matter because s198AHA was all that mattered. Other judges considered it, and no doubt lawyers will need to study it to see whether the wall of mandatory detention has a crack.
Legally the case may be over and M68 can be returned to Nauru. Politically the government does not want to be seen as going soft of detainees, not after their aggressive 'stop the boats' campaign for years in opposition and now in government.
Also it may undermine the punitive intentions of the detention and offshore processing policy. You do not send people to Nauru at considerable expense simply to help develop Nauruan refugee resettlement. It is a deterrent for others, and a punishment for the asylum seekers caught up in the policy.
It seems unlikely that we will ever be able to approach this contentious area with a humanitarian and reasoned approach, given the fact that since 1992 the policies of both Labor and the Coalition have been reactive and punitive. And it is easy to make retrospective laws to fix a legal problem. If only we could all fix our mistakes retrospectively!
In the meantime, the serious allegations of sexual assault of detainees and children on Nauru remain unresolved. Assuming these offences are true, then no retrospective fix will be possible for those people who fled out of fear of persecution, only to face a punitive and hostile policy.
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.
Main image: Louise Coghill, Love Makes A Way, Flickr CC