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No retrospective fix for traumatised refugees

  • 05 February 2016

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