Ly v The Minister for Immigration, Local Goveernment and Ethnic Affairs

The plaintiff, Ly Sok Pheng, an infant suing by his next friend Ly Muy Heng, brought proceedings against the Minister for Immigration, Local Government and Ethnic Affairs and the Commonwealth of Australia. The dispute concerned the plaintiff's detention, which the parties agreed was unlawful and unauthorised from its commencement. The matter came before the High Court of Australia for the determination of reserved questions of law.

The central legal issue before the Court was the effect of section 54RA of the *Migration Act 1958* (Cth), as inserted by the *Migration Legislation Amendment Act (No. 2) 1992* (Cth). Specifically, the Court was required to determine whether this provision, which purported to extinguish rights to damages for unlawful detention and provide a limited statutory right to compensation, applied retrospectively to acts of unlawful detention that occurred prior to its commencement. The Court also considered whether the term "courts of competent jurisdiction" in the provision was defined or left at large.

The Court reasoned that section 54RA(1) operated to prevent any action, whether commenced before or after its insertion, from being brought for damages for unlawful detention. However, the Court found that the provision did not extinguish existing causes of action for damages that had accrued prior to its commencement. The Court further held that the right to compensation conferred by section 54RA(2) was a new right and did not apply retrospectively to unlawful detention that occurred before the commencement of the amending Act. The Court noted that the term "courts of competent jurisdiction" was not defined and was therefore left at large.