Was it legal? The Howard Government’s handling of MV Tampa

In late August 2001, the Norwegian cargo ship MV Tampa picked up 438 refugees in distress at a location off the Indonesian coast. They were the victims of a people-smuggling racket operating through Indonesia, their ship having sunk in treacherous conditions. The Tampa's Captain, Arne Rinnan, sought to land at an Australian port as Indonesian authorities had evinced no desire to cooperate with the vessel. In sight of Christmas Island on August 28, the Captain requested to land the ship. The harbourmaster refused. Radioing an emergency message citing overcrowding and sanitation problems, Rinnan entered Australian waters where the Tampa was secured by special forces. The Tampa refugees were subsequently placed on the HMAS Manoora and taken to Nauru to be processed, a decision challenged by the Victorian Civil Liberties Association who requested that the Tampa refugees be processed in Australia. The government won on appeal in Ruddock v Vadarlis. Parliament subsequently excised Christmas Island as a landing zone for migration purposes.

Was such conduct towards the Tampa refugees legal? Two areas of law are relevant: the domestic and the international. On a domestic level, the legality of detention and subsequent expulsion to Nauru hinges on constitutional and policy questions. On the international level, legality depends upon Australia’s treaty obligations and commitment to international law.

On a domestic level, the Executive (here the Prime Minister and Cabinet) has prerogative powers that emanate from ancient doctrines of the British Crown. The Constitution retains this (s. 61) enabling the executive to protect the realm from invasions. Parliament need not authorize such acts – the Executive has an inherent power to do so. However, detaining and expelling the Tampa refugees involved the Executive exercising powers in defiance of an existing statute (the Migration Act). The Executive should not have intervened when an existing regime, created by Parliament, was already in place to define and determine refugee cases. Mr. Justice French of the Full Court (Ruddock v Vadarlis), while correct in asserting Australia’s sovereign right to ‘prevent people not part of the Australian community, from so entering’ ignored the question of who could exert that power. The inherent powers of the Crown are not unlimited. The power of the Crown has been reduced, as Chief Justice Black noted in dissent from Justices French and Beaumont. Parliament chose to regulate the field of migration and bound the Executive.

The act of classifying the Tampa refugees as illegal and duly transferring them to Nauru independently of the Migration Act was Parliament’s role. It gave no supporting legislation allowing the Executive to commit these acts. The supporting legislation only came after the fact. Strong policy arguments exist against retrospective statutes: what was illegal then should not be made legal now.

Even assuming that the domestic actions of the Executive were legal, it may not have been in line with international law principles. The closure of the territorial sea around Christmas Island to the Tampa was a discriminatory act ‘in form or fact’ against a specific foreign ship under s. 25(3) of the Law of the Sea. Australia would have to show that it was essential to its security to stop this one ship and the lack of innocence in its passage. If not shown, the use of special servicemen to board the ship was excessive.

The Tampa would have several defences to Australian claims that it illegally entered its waters. Under the Law of the Sea, it was a ship in distress. It had a carrying capacity of fifty personnel and undertook to carry almost 450. Sanitary conditions on board were horrendous, and some passengers showed signs of grave illness. Australia would have to show that the Tampa was not in distress when it violated orders not to enter its territorial sea. Howard, Reith and Ruddock impliedly did this through claims that any serious illness on board had been ‘feigned’. Evidence of bad sanitation, pregnancies and overcrowding suggest otherwise. Subsidiary arguments of coercion and duress might also be made under the same Convention. Rinnan had mentioned that some refugees had threatened to jump off the vessel if not taken to Australia. Under duress, he entered Australia’s territorial sea.

The excision of parcels of territory such as Christmas Island from territorial sea brings up other issues. It shows Australia’s reluctance to faithfully discharge its treaty obligations when, under international law, it is bound to do so. The exemption of some Australian territory from its general laws deprived the Tampa refugees of legal avenues available in Australia. They could not seek a ‘protection visa’ as non-legal citizens as they were under the Migration Act not within Australian territory. Yet for all other purposes, Australia uses a 12 nautical mile limit in questions of sovereignty. As the Vienna Convention on Treaties makes it clear that any signed treaty covers the whole territory of the signatory, the Migration Act violates international law. The internal law of a signatory, noted in section 27 of the Vienna Convention, cannot be used as a justification for its breach of treaty obligations.

Under general human rights conventions, the detention and subsequent redirection of the Tampa refugees to territories other than Australia may have breached the Universal Declaration of Human Rights. Article 14(1) recognises the right of a refugee to seek asylum from persecution. The Australian reply might be that their entitlement to seek asylum was simply delayed by processing in another country. They might well return to Australia after their claims had been determined. Nonetheless, the principle of rejecting refugees at the border is a precedent looked down upon by the Executive Committee of the United Nations High Commission on Refugees. The ‘illegal’ status of the Tampa refugees did not entitle Australia to impose penalties on them (Article 31(1), Refugee Convention), the penalty here being assessment on territory other than Australia. Once the Australian authorities sought to ‘rescue’ the Tampa refugees, it became obligatory to allow them to seek asylum, a duty found under the Commonwealth’s Navigation Act.

The legality of Australia’s acts against the Tampa under international law will remain points of academic discussion till tried by a recognized tribunal. As Australia and Norway are signatories to the Law of the Sea, Norway can seek a declaration from the International Tribunal on the Law of the Sea on the appropriateness of Australia’s actions. Norway could seek diplomatic recognition of Australia’s breaches on the Law of the Sea through the International Maritime Organization. The company of the MV Tampa could seek damages for trespass and loss of profits in Australian courts under standard common law rules.

In summary, two levels of possible illegality have manifested themselves in Australia’s dealing with the Tampa. On a domestic level, it is questionable whether the executive could detain and expel the Tampa refugees from Australian territory as the law of migration was already regulated by Parliament. The subsequent validation by Parliament through retrospective legislation did not make good what was bad in law. Under international law Australia’s treatment of the Tampa potentially violated the Law of the Sea by ignoring the defenses of duress and coercion. There was also a duty on the part of Australia as rescuer to provide asylum once the rescue had been made. The excision of the territorial zone as valid entry points for refugees constituted discrimination against a specific ship. It also evinced reluctance on Australia’s parts to discharge its obligations under maritime law and human rights law by denying the Tampa refugees access to its court processes. However, the legal status of Australia’s actions will have to wait till Norway takes Australia to task at the Tribunal on the Law of the Sea.