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The High Court and the Tampa Refugees

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The High Court and the Tampa Refugees THE HIGHCOURT AND THE TAMPAREFUGEES Michael ~ead* On 27 November 2001, the High Court brought the Tampa case to an abrupt halt. A panel of three justices refused to consider an appeal from a split decision of the Full Federal Court upholding the lawfulness of the detention and expulsion of the Tampa refugees. The decision effectively sanctioned the federal government's continued use of military force to remove asylum seekers from territorial waters and transport them to detention camps on remote Pacific islands. The verdict meant that hundreds of asylum seekers remained incarcerated, at the behest of the Adstralian government, in hellish conditions on the tiny island of Nauru. This article examines the refusal of the High Court to hear the case despite the undeniable existence of 'questions of law' of 'public importance'. It appears that Captain Arne Rinnan, the master of the MV Tampa, and Wallenius Wilhelmsen, the owners of the Norwegian freighter, displayed more concern for the survival, welfare and basic rights of the 433 Afghan refugees rescued by the Tampa on 26 August 2001 than the Australian government. In accordance with the norms of international humanitarian assistance, Rinnan, backed by the shipping line, responded to the refugees' distress calls and sought to ferry them to the nearest safe port.' Led by Prime Minister John Howard and Immigration Minister Philip Ruddock, the Australian government deployed SAS troops to prevent the asylum seekers landing in a safe harbour (at Christmas Island), detain them on the deck of the container ship and ultimately transfer them to the HMAS Manoora, a naval troop carrier, for transportation to far-distant Nauru. This is not the place to examine the reactionary politics of that course of action, or the crucial underlying policy issues thrown up by the Tampa affair.2 Nor is it possible to canvass all the complex legal and constitutional questions involved. But this article will examine, in particular, the refusal of the High * Senior Lecturer and Coordinator of the Community Law Program, Law School, University of Western Sydney. This article draws in part on material that the author previously wrote for the World Socialist Web Site (www.wsws.org). The Norwegian government awarded Rinnan the Order of St Olaf, First Class. See Marr (2001). The author subscribes to the statement issued by the Socialist Equality Party, 'Why the Tampa refugees should be free to live in Australia', World Socialist Web Site, www.wsws.org. Court to hear the case despite the undeniable existence of 'questions of law' of 'public imp~rtance'.~ On 27 November 2001, the High Court brought the Tampa case to an abrupt halt. A panel of three justices refused to consider an appeal from a split decision of the Full Federal Court upholding the lawfulness of the detention and expulsion of the Tampa refugees4 The decision effectively sanctioned the federal government's continued use of military force to remove asylum seekers from territorial waters and transport them to detention camps on remote Pacific islands. The verdict meant that hundreds of asylum seekers remained incarcerated, at the behest of the Australian government, in hellish conditions on the tiny island of Nauru. Within two days of the ruling, the government formally asked Nauru to take up to 500 more asylum seekers, on top of the 700 Afghan and Iraqi refugees already being held there against their will. In return for a further cash payment of $10 million from Canberra, the Nauru government subsequently agreed to detain up to 1200 people at a time.5 Seeking to act on behalf of the refugees, Melbourne solicitor Eric Vadarlis applied for a High Court appeal against a two-to-one ruling by the Full Federal Court, which declared that the government had vague executive or prerogative power under the Constitution to detain and remove 'aliens' and take any other action it considered necessary to protect 'national sovereignty'.6 Vadarlis asked the High Court to reinstate an original habeas corpus order by Federal Court Justice Tony North that the refugees had been illegally detained. North J ruled that the government had flouted its own migration legislation and had determined 'at the highest level' to 'use an unlawful process to detain and expel the rescuees'. H; ordered the government to bring the Tampa refugees - then crammed aboard a military troop carrier - to the Australian mainland, where they would have the right to apply for asylum under the Migration Act and the 1951 Refugee convention.' By summarily dismissing Vadarlis's application, the High Court rubber- stamped the military operation against the refugees rescued by the Tampa, in which government ministers deliberately flouted the law. When they sent 45 SAS soldiers to board the Norwegian freighter and detain the rescuees, members of the government were aware that they lacked any lawful power to do so. The government tried to rush retrospective legislation - the Border - - -- 3 The Judiciary Act 1903 (Cth) s 35A provides that, in considering whether to grant an application for special leave to appeal, the High Court shall have regard to whether the proceedings involve a question of law of public importance. Vadarlis v MIMA and Ors M9312001 at www.austlii.edu.au/au/other/hca/transcripts/2001/M93/2,html(accessed 30 November 2001) See Seccombe (2001). Ruddock v Vadarlis [2001] FCA 1329 September 2001). Victorian Civil Liberties Council Incorporated v Minister for Immigration and Multicultural Affairs [2001] FCA 1297 (North J, 11 September 2001). HEAD:THE HIGH COURTAND THE TAMPAREFUGEES 25 Protection Bill - through parliament to authorise its actions, but was initially defeated in the Senate. Government ministers sought to evade the operation of the Migration Act, which requires government officers to detain all 'unlawful' arrivals. Under the 1999 'border protection' amendments to the Act, military officers who board refugee vessels - even on the high seas - are obliged to bring the people on board ashore, to be placed in detenti~n.~ On the federal cabinet's instructions, various steps were taken to ensure that the people on board the Tampa could not contact lawyers to challenge the legality of the government's conduct or seek their release from the ship. Government leaders were determined to prevent the asylum seekers from applying for protection visas. According to the agreed facts: The ship has been forbidden by Australian authorities from proceeding any closer to Christmas Island and from entering the port . The effect of the continuing presence of the SAS officers is that the captain and crew are unlikely to attempt to move the ship into the port. This is a consequence desired by the Australian government. None of the asylum seekers hold a visa entitling them to enter Australia. Therefore they would be unlawful non-citizens for the purposes of s 14 of the Migration Act if they entered the 'migration zone' as that phrase is defined in s 5 of the Migration Act. The evidence justifies an inference that the many of the rescuees would, if entitled, wish to apply for protection visas, and would wish to leave the ship and enter Australia. The rescuees have no access to communications with persons off the ship and persons off the ship are unable to communicate with them.g Even after North J's initial ruling, the government continued on its course, having obtained an agreement from the lawyers challenging its actions - Vadarlis and the Victorian Civil Liberties Council - that it would return the rescuees to Australia if it lost an appeal to the Full Federal Court. The refugees were shipped thousands of kilometres away to the remote Pacific island of Nauru. En route, the government crammed 237 more unwanted refugees - seized off Ashmore Reef - on to the Manoora. Upon arrival at Nauru, a desolate former Australian, New Zealand and British protectorate, military personnel forced the Manoora's unwilling passengers into a detention camp of makeshift shelters and tents in the middle of the island's former phosphate mine. Justice North's Ruling Justice North ruled that the cabinet had breached one of the most basic legal principles, dating back hundreds of years, that no person - whether a citizen or non-citizen - can be held in detention arbitrarily. In granting a writ of habeas corpus for the immediate release of the refugees, he declared: 'An Migration Act 1958 (Cth) ss 189,245. Judgment of North J, para 35. ancient power of the Court is to protect people against detention without lawful authority.'1° North J's ruling was entirely orthodox and based on traditional judicial precedents. He rejected any suggestion that the government should be allowed to operate above the law. In his words: It is not part of the function of the Court to interfere in the policy decisions made by government. But it is part of the function of the Court to determine if the government respondents have acted within the law." The judge cited the High Court judgment in Lim, declaring that to allow a government to detain people without trial or clear statutory power would undermine 'the very fabric of freedom under the law' and represent 'tyranny': The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land.
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