'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