Recent media attention on the 2001 Tampa incident following the new John Howard biography’s claims that the PM was initially advised that it would be illegal to stop the Norwegian ship from entering Australian waters, has stirred a matter upon which everyone has an opinion, right down to the proverbial ‘man in the street.’

One of the reasons the matter cannot be left to rest is that Australians are not altogether convinced that they been told the whole story. In the months post Tampa the legal, political, social, international and maritime issues were exhaustively debated. Speculating upon what legal advice the Government might have received before it acted to keep the M/.V. Tampa out of Australian waters, leads us nowhere in the pursuit of the truth.

What’s apparent is that the Government was determined to keep the refugee laden vessel out. It’s the manner in which they pursued this aim that has raised questions about compliance with the rule of law.

The Tampa attended a vessel in distress on 22 August 2001. Over 400 persons were rescued from a dangerously overloaded 20 metre wooden vessel. Responding to some pressure brought to bear by the rescuees, the Master of the Tampa made for Christmas Island. As we all know – they never made it. The Government kept the Tampa at sea for five days whilst it brokered a Pacific solution. The vast majority of rescuees were taken to Nauru to be processed.

In late September 2001 the Government passed a number of Acts aimed at validating the actions taken in relation to the Tampa. Retrospective legislation is traditionally narrowly construed by the Courts. In this case it was pointedly aimed at validating Commonwealth actions, hence removing the right of any claim against the Commonwealth.

One view of these amendments is that the Commonwealth felt the need to remove its actions from judicial scrutiny – because of doubts over their validity. The legislation also excised parts of Australia’s external territories from the Migration Zone, (though retained all other international law rights relating to fisheries etc) thus requiring asylum seekers to make landfall on mainland Australia in order to trigger the Migration Act.

It was by all accounts a complicated affair which has arguably tarnished Australia’s international reputation along with our continued refusal to ratify the Kyoto Protocol.

The handling of the Tampa raised issues of compliance with international laws relating to human rights, maritime zones and maritime safety. Many academics more eminent than myself condemned the Government’s actions. So too have our neighbors.

In 2001 Australia was committed to humanitarian intervention in East Timor. The hard line action against the Tampa and its unhappy occupants was not a good fit with the work Australians were undertaking in and around Dili. We may not agree with why the Government chose to act as it did.

However we are entitled to question the legal basis upon which they acted, for as citizens we all have a vested interest in Australia’s international reputation.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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