'No law, made after a fact done, can make it a crime ... For before the law, there is no transgression of the law.' –Thomas Hobbes, Leviathan
The grotesque nature of the bill that has been passed in Australia's Federal Parliament clarifying the terms of people smuggling reveals yet again how a governing body, without the restraint of a bill of rights, can run rough shod over fundamental rules of law.
Not even common law fetishists could deny that a retrospective law on criminal matters is an appalling thing at the best of times and should be stopped, if not rendered beyond the power of Parliament. A most blatant exercise of that power was made over the last two days.
It all centres on the case of 20-year-old Jeky Payara, an Indonesian man accused of people smuggling and defended by Saul Holt, a senior public defender for Victoria's Legal Aid.
Until the present bill's amendment to the Migration Act 1958, Australian migration law said it was illegal for someone to bring to Australia people who 'had no lawful right to come to the country'. The premise of the challenge made by Holt was that one cannot commit an illegal act when assisting individuals to fulfil their legal rights to seek asylum.
Suddenly, the problems of the Migration Act, already subjected to the closest scrutiny with the High Court decision in August on the Malaysia solution, have come back to haunt the Government.
The Gillard Government clearly wishes to see the Payara case collapse. To this end, it has drafted retrospective legislation punishing what was previously legal. This clearly violates a key precept of the common law, not to mention various human rights declarations that dot the international law landscape. This is commonly called the ex post facto rule or the rule against retroactivity.
The principle has a rich history, finding expression in the Latin expression nullum crimen sine lege, nulla poena sine lege, a principle formulated by Feuerbach and included in the 1871 German Penal Code and the Weimar Constitution.
The American Constitution openly prohibits ex post facto laws in Article 1, section 9(3), and article 15 of the International Covenant of Civil and Political Rights makes a similar proviso. Both include the qualification that trial and punishment of a person can still occur provided that the act or omission 'was criminal to the general principles of law recognised by civilised nations'.
History can point to a few key cases when such retroactive approaches were deemed legal, sometimes because of the exceptional circumstances of the crimes, sometimes because a government had simply overreacted.
The Nuremberg Trials were an example of the former. The decision of the House of Lords in Shaw v Director of Public Prosecutions (1961) is an example of the latter; the House of Lords contrived to punish Shaw for the non-existent crime of conspiracy to corrupt public morals.
One might argue, as was done at Nuremberg, and subsequently in the Australian High Court case of Polyukhovich v The Commonwealth (1991), that the defendants would still have been punished under traditional war crimes accepted as such by the community of nations.
In a sense, the injunction against retroactivity may be a fiction. Judges abide by that happy fiction by claiming with pious conviction that they interpret rather than make laws. Unfortunately, a party who believed that what they did under old interpretations was correct, may well find that an offence or breach has, in fact, taken place. The law of precedent is not always a stable one.
The Government line has been that people smuggling constitutes a grave crime and deserves harsh punishment. Closer inspection of this betrays such a line as misguided.
The individuals who are being charged for people smuggling are often penniless teenagers who are themselves part of the process of funnelling people through various transit points in order to seek legitimate asylum. They are hardly, as Australia's foreign minister Kevin Rudd would have it, 'scum of the earth' engaged in the world's most evil trade'.
Whatever the case, this episode shows yet again how dangerous parliamentary absolutism can be. The same body has already made retrospective laws with regards to social-security prosecutions. Nothing is too serious. Instead of allowing a logical, carefully argued legal principle to be made, the Government has decided to pull the carpet from under the judiciary.
It is perhaps fitting to recall Article 28 of the failed Australian Bill of Rights Bill of 1985, which should be revisited: 'No person shall be convicted of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it occurred.'
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.