In August 2001, the Australian government’s response to calls for help from people rescued from an incapacitated boat placed hundreds of lives at grave risk for the sake of political gain. Twenty-five years on, the Tampa affair still shapes how Australia treats refugees and people seeking asylum.
Liberty Victoria took a stand against this humanitarian crisis. Today, as more people around the world are displaced due to persecution, conflict, climate collapse and poverty, it is more important than ever that Australia resists racist and anti-migrant sentiment engendered by the politics of the Tampa affair. It is beyond time that Australia complies with obligations under international law and restores dignity and fairness to how it treats refugees and people seeking asylum.
The Tampa Affair
On 26 August 2001, a boat carrying 433 people seeking asylum, mostly Hazara people fleeing the Taliban in Afghanistan, became stranded in international waters near Christmas Island, an Australian territory. Australian authorities received the distress call and requested all nearby vessels to assist. The Norwegian container ship, the MV Tampa, complied and rescued all onboard. The Tampa then headed to Christmas Island.
The Refugee Convention support the right of all people to be able to seek asylum from persecution. As a signatory, Australia has obligations under international law to protect the human rights of all asylum seekers and refugees, regardless of how or where they arrive.
The Howard Government, however, refused to allow the Tampa to enter Australian waters.
Australia denied its obligations under international law and refused to accept those seeking asylum. Further, despite international law recognising the rights of vessels carrying survivors of shipwrecks to enter the nearest suitable port for medical treatment, the Tampa was still denied entry – even though many asylum seekers required urgent medical attention, including some pregnant women. Instead of showing compassion, the Australian Government threatened the captain of the Tampa with prosecution as a “people smuggler” if he continued towards Christmas Island.
Tampa’s captain resisted those calls and continued toward Christmas Island. Upon entering Australian waters, Prime Minister Howard ordered Special Air Services (SAS) board the ship to prevent the people rescued from disembarking – also in breach of international law. The SAS remained on board for another five days before the Australian Government transferred the asylum seekers to Nauru and New Zealand. None were permitted to make refugee claims with Australia.
This marked the beginning of the “Pacific Solution” and Australia’s many deals with neighbouring nations – at great public expense and reputational damage – to dodge its responsibilities under the Refugees Convention.
Liberty Victoria’s legal challenge
While the rescued remained on board the Tampa, Liberty Victoria and Eric Vardalis commenced urgent proceedings in the Federal Court of Australia arguing that the Australian Government was unlawfully detaining them. Led by Julian Burnside AO QC and Chris Maxwell AC QC with Holding Redlich as instructing solicitors, we sought an order for the immediate release of all asylum seekers and a declaration that their detention was illegal.
At first instance, Justice North agreed with Liberty Victoria and ordered that the rescued people on the Tampa were being held unlawfully.
The Government appealed this decision. Disappointingly, a majority of the Full Federal Court overturned Justice North’s decision and held that the Australian Government had the executive power to prevent asylum seekers from entering Australia.
Justice French (as he then was) observed in his judgment on appeal:
“The counsel and solicitors acting in the interests of the rescued in this case have evidently done so pro bono. They have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.”
The lasting impact of Australia’s response to Tampa
In response to the humanitarian crisis on board the Tampa and in the months that followed, the Howard Government painted refugee arrivals as a threat to be managed. This attitude paved the way for brutal policies and regressive laws – including offshore detention, boat turn backs, excised migration zones, temporary visas and family separation – that have caused deaths, immeasurable suffering and lasting trauma.
Today, Australia continues to criminalise and punish people who seek asylum. People arriving by boat are still turned back at sea or taken to offshore detention in Nauru. Hundreds who have lived in Australia for years still have no right to stay here for good. Politics continues to drive decision-making about people’s lives.
Proud to stand up for human rights
While ultimately not successful, Liberty Victoria was proud to lead the charge against regressive and inhumane policies which demonise refugees and asylum seekers – and criminalise the human rights of all people to seek asylum from persecution.
With 25 years of hindsight, we can all recognise the shameful cruelty Australia showed to those aboard the Tampa. We must apply this same scrutiny to the actions of our Government today.
Liberty Victoria will continue advocating to reform our migration laws and policies to uphold the rights of people seeking asylum to safety, dignity and equality in our community.