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White, Michael --- "M/V Tampa Incident and Australia's Obligations - August 2001" [2002] MarStudies 2; (2002) 122 Maritime Studies 7

M/V Tampa Incident and Australia's Obligations - August 2001

Michael White[1]

The Background[2]

The terrorist activities in the US on 11 September 2001 and the continuing drama of the ‘boat people’ off the Australian coast subsumed the public interest in the initial incident of the M/V Tampa rescuing some 433 asylum seekers and four or five crew from near Christmas Island on 26 August 2001. However, the incident has important aspects and this article concentrates on the merchant shipping aspects relating to the Tampa and the handling of the issue by the Australian government. The issues of how the Australian government should deal with balancing the requirements of border protection, on the one hand, and humanitarian dealings for refugees, on the other, are left to other writers and other occasions.

After some considerable research the facts seem to be established as follows. On 22 August 2001 the M/V Tampa, a Norwegian-flagged Ro-Ro and container vessel,[3] was on voyage from Fremantle, Western Australia, on a northerly course in the Indian Ocean steaming for Singapore,[4] via the Sunda Straits under the command of Captain Arne Rinnan, a very senior and sound Norwegian officer. As the Tampa was steaming north between Christmas Island and Indonesia, it received a general distress relay from the Australian Canberra Rescue and Coordination Centre (AusSAR) that a vessel was in distress in the area with, so it was said, some 80 persons on board. The Master altered course and steamed to the position where, on 26 August, some 158 miles from the Indonesian mainland and 85 miles north of Christmas Island, he found a 20-metre wooden Indonesian vessel dangerously overloaded and with damage to the stern and superstructure. The position was in the Indonesian search and rescue zone. In fact, there were 438 persons on board, including women and children in various states of health and stress. The distressed persons were taken on board the Tampa and the other vessel abandoned. The Tampa’s First Officer put his personal safety at risk in helping effect the transfer of these persons to safety on board in a significant swell.

The Master had five empty containers on the deck opened for the shelter of the rescuees and blankets, water, hot soup and bread were provided, with milk and chocolate for the children. The survivors included 26 females (two pregnant) and 43 children (the youngest approximately one year old). Five of the rescuees proceeded to the bridge and thanked the Master for their rescue but then acted aggressively and demanded to be taken to Christmas Island. The Master had sought advice from the Indonesian Rescue Control Centre and, acting on it, had intended steaming to Merak, Indonesia. The Master acceded to this pressure and altered course to Christmas Island. He advised AusSAR of this and was told the decision was his. Later, on 26 August, a representative of the Australian Department of Immigration advised the Tampa that the vessel was refused permission to enter Australian Territorial waters and that it should proceed to Merak. The Master then slowly altered course back towards Merak but the rescuees detected the change of course and some of them advised the Master that they would jump overboard if the vessel did not head for Christmas Island. This the Master then did.

When the vessel arrived off Christmas Island in the early hours of 27 August the Master expected assistance from Australian authorities. Christmas Island is an Australian territory, being an island in the Indian Ocean, with one small port but an international standard airport. The port was to small for the Tampa to enter but it was adequate for boat traffic to use to service the vessel.

At 09.45am on that day, 27 August, the Master was told by the Australian authorities not to enter Australian territorial waters (12 nautical miles). The Master was concerned for the welfare of the rescued persons, as he understood that one had a broken ankle and another was unconscious with suspected dehydration. His requests to the Australian authorities for assistance, medical and otherwise, were not met and no assistance was provided as the vessel waited offshore. This went on for two days. On 29 August the Master issued an actual distress call for his own ship and its personnel and AusSAR indicated that assistance would be provided. The spokesperson for the rescued persons informed the Master that they would start jumping overboard if they received no medical assistance. By that time it appeared to the Master that there were ten unconscious persons and much fatigue and exhaustion, as well as some highly agitated and nervous behaviour by the rescued persons. The Master was then of the opinion that the ‘situation was getting out of hand’.[5] The Master then took the Tampa into the territorial sea to within about two miles of the port (Flying Fish Cove). The vessel itself stopped offshore and drifted but used its engines from time to time to hold its general position. The sea-bed drop-off from Christmas Island is steep so it was too deep to anchor.

At 11.35am on 29 August, with the Master expecting emergency assistance for his distressed vessel, some boats came offshore. The gangway was lowered but it was the Australian military personnel (Army SAS) who came up and then boarded the Tampa rather than the expected humanitarian assistance. The Master was invited to put to sea but with the rescued persons still on board. The Master maintained the ship’s position, as he considered that the vessel was not legally permitted to carry the survivors and did not have the ‘safety equipment and toilet facilities to make it seaworthy’.[6] The Australian Defence personnel then stayed on the vessel, conducting themselves politely and professionally.[7] Australian naval vessels were then brought up over the next few days and took station nearby.

Access to and from the Tampa was controlled by the Defence personnel, who had boats. The Australian government also, by regulation, closed the port at Christmas Island. The effect of this was that boats were unable to enter or leave the port to have contact with the Tampa without government approval. This approval was refused except to suit government purposes. The Norwegian Ambassador to Australia was allowed onto the ship, after representation from the Norwegian government, but many others with legitimate interests were not. The insurers’ representatives, the media and lawyers to advise the rescued persons as to their rights were denied access to the ship by the government personnel.[8]

The Australian government at the highest level had declined to give any real assistance and directed the vessel not to enter into the Australian territorial sea around Christmas Island because it had taken control of the matter from the hands of the AusSAR personnel. The government wished to make a political stand against unwanted incursions by immigrants from other countries. There was a traffic in illegal immigrants and the Australian government had, until then, done little about preventing it, but it wished now to make a stand. It was known that most of the rescued ‘boat people’ were refugees from Afghanistan and neighbouring countries seeking asylum in Australia. They had transited though a number of countries, including Indonesia. The Master of the Tampa, his own vessel now being in distress with hundreds of extra people on board, sought assistance. This was declined except that after the Defence personnel had boarded the vessel they provided food, sanitation, medical assist-ance and other support for the rescuees.

After a delay of some further five days, on 3 September, the Defence personnel unloaded the rescued persons into the Australian naval vessel HMAS Manoora which then steamed to Nauru. The Tampa was then allowed to proceed on its original commercial voyage. As a result of the incident the Tampa’s cargo was delivered about a week late into Singapore. Another vessel had to be chartered by the Owners to take over Tampa’s run and to load the cargo from Singapore and take it on to its destination ports.

The Indonesian boat crew who were saved by the Tampa were landed on Christmas Island by the authorities and charged with ‘people smuggling’. The Nauruan government agreed to accept the rescued persons and process them, at Australian expense, and the New Zealand government agreed to accept 120 of those persons. This occurred. Of those on Nauru the UNHCR representative later indicated that it was likely that a significant number of the rescuees were genuine refugees (The Australian, 12 December 2001). The total expense to the Australian taxpayer has not been revealed at the time of writing but is thought to be many times the cost of processing the rescued persons at Christmas Island.

In the meantime, humanitarian groups had commenced actions in the Federal Court of Australia in Melbourne on behalf of the asylum seekers (Victorian Council for Civil Liberties Inc. v Minister for Immigration & Multicultural Affairs & Others, No. V899 of 2001, Vadarlis v Minister & Ors, No. V900 of 2001). After several days of evidence and argument the judge, North J, on 11 September 2001, held that the Australian government had acted illegally in detaining the rescued persons on the Tampa and ordered their release from government control.[9] The owners of the Tampa did not join in this action, as they may well have done, to seek release of the vessel and damages for its detention.

The Australian government immediately appealed. The Federal Court commenced an urgent sitting of three judges to form a full court and the appeal argument commenced on 13 September. The Full Court gave judgment on 18 September and, by a majority of two to one, upheld the appeal and set aside the judgment of the trial judge.[10]

In the appeal the majority judges, Justices Beaumont and French, concluded that the Commonwealth was acting within its executive power, under Section 61 of the Constitution, in the steps it took to prevent the landing of the rescuees. It followed that the majority held that the rescuees were not unlawfully detained by the Commonwealth. The minority, Chief Justice Black, dissented. He took the view that whilst the power to expel people entering Australia illegally is undoubted, it is a power that derives only from laws made by the Parliament and not from powers otherwise exercisable by the executive government. He held that since the powers provided in the Migration Act 1958 had not been relied upon as the lawful basis for the government actions, the Commonwealth government had no power to detain those rescued from the Tampa. It followed that he considered that there was an unlawful detention by the Commonwealth since it was not justified by any act of the Parliament or any other law. There is not space here to discuss in detail the reasoning of the judgments. No arguments were put as to the lawfulness of the boarding of the Tampa by the Australian armed forces, the failure to relieve the vessel immediately of the dangerous number of people on board or the lawfulness of closing the port, so these aspects were not adjudicated.

On or about 27 September, the Commonwealth Parliament passed seven Acts (variously entitled ‘Border Protection’ and ‘Migration’ amendment Acts) before rising for an election. One Act, the Border Protection (Validation and Enforcement Powers) Act 2001, includes in its short title that it is ‘to validate the actions of the Commonwealth and others in relation to the M/V Tampa …’. The validation is retrospective and took effect from 27 August,[11] which is when the Tampa arrived off Christmas Island, and the right of court action is removed for any action taken by the Commonwealth or its officers in relation to the Tampa, amongst other things.[12] A different effect of the Acts was to exclude the rule of law about refugees from Christmas and other offlying islands and reefs. Another result was that the large sum of money that the owners or charterers of the Tampa have lost is precluded from being recoverable in Australian courts. However, there may still be a right of action in international courts and tribunals for breaches of international treaties (see below).

On 27 November 2001 Mr Vadarlis applied to the High Court of Australia (Gaudron, Gummow and Haye JJ; M93/2001) for Special Leave to appeal to the High Court. The application was refused, mainly on the ground that the issue of writ of habeas corpus would be futile as the persons the subject of such a writ were by then in Nauru and New Zealand and so beyond the jurisdiction of the court. It was ordered that there be no order as to costs on the application.

On 14 December 2001 the Commonwealth government applied to the Full Court of the Federal Court for an order for costs against Mr Vadarlis and the Victorian Council for Civil Liberties, Inc. (VCCL). The judgment was handed down on 21 December 2001 and refused the application, holding by majority (Black CJ and French J), that there be no order as to costs on the litigation at first instance or on the appeal. The minority judge (Beaumont J) was of the view that costs should be awarded against Mr Vadarlis and the VCCL for the final hearing at first instance and on the appeal, but that they should be reimbursed for costs from a government fund, for which there was power under the Federal Proceedings (Costs) Act. There the matter rests although the debate about how Australia should handle refugees who arrive by boat continues.

Obligation to Rescue those in Danger at Sea

There is a long-standing maritime tradition that lays an obligation on those who may safely do so without endangering their own vessel or crew to go to the assistance of those in peril on the sea. This tradition has been incorporated into maritime and international practice and law. The International Convention on Maritime Search and Rescue, Annex, Chapter 2.1.10, provides that parties are to ensure assistance is provided for those in distress at sea.[13] The International Convention on Salvage 1989, Article 10, has a similar obligation.[14] The obligation is also to be found in Article 98(1) of the United Nations Convention for the Law of the Sea, 1982 (UNCLOS).[15] It provides that:

Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: … to render assistance to any person found at sea in danger of being lost … and to proceed with all possible speed to the rescue of persons in distress, if informed of their need for assistance, in so far as such action may reasonably be expected of him.

Article 98(2) requires that every coastal state shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service. Australia is a party to these conventions.

Australia has given effect to this obligation on a Master to rescue at sea in s.317A of the Navigation Act 1912.[16] Norway has also given effect to such obligations, albeit in a more limited manner.[17] In the result there was an obligation on the Australian authorities to deal with the vessel in distress and it discharged the obligation by making a broadcast to vessels for the purpose of a ship in the area, such as the Tampa, to divert from its voyage to the rescue scene. There was an obligation on the Master to rescue the persons in danger at sea and he discharged the obligation by rescuing the persons and taking them on to his own ship. There was also an obligation on the Australian government to provide an effective rescue service.

Position of a Master with Numerous Persons Rescued from Danger at Sea

A Master who has rescued persons in danger at sea has a wide discretion as to how he or she conveys them to a place of safety. The Master may continue on with the voyage to the port of destination and the rescued persons have no right of complaint. However, the discretion of the Master is to be exercised in the light of all of the circumstances. If the Master steams the vessel to the nearest suitable port, that is entirely reasonable. This is especially so if health and safety considerations prevail over other considerations. For a ship to rescue two or three people from a yacht is fairly common but it is a far cry from having to rescue and accommodate 438 of them. The Master of the Tampa initially proceeded towards the port of Merak, Indonesia but about 6 of the rescued persons put pressure on him to go to Christmas Island. As the Master was entitled to expect support from the Australian government authorities at Christmas Island it was entirely reasonable, and in fact desirable, that he should steam for that destination. It was, after all, nearer to the rescue position than Merak so he would have the persons onboard for a lesser time, although the Tampa would then be further from its intended destination of Singapore. (The actions of the five rescuees was probably not ‘piracy’; as defined in UNCLOS Article 101, although it could have been an offence under other laws. There is not space here to develop that point).

A Master has, in traditional maritime and international humanitarian law, a right to expect assistance from a coastal state with the support of the persons rescued at sea. The amount of the support will depend on the circumstances. In this case, a Master of a cargo vessel with 27 officers and crew who rescues some 438 persons in danger at sea can expect the support from the coastal state to be quite substantial. The Master could reasonably expect that the coastal state immediately would relieve the ship of the persons rescued. Had the Master proceeded to an Indonesian port or on to Singapore, he would have been entitled to that support from those governments but, as circumstances turned out, he arrived off Australian territory.

The Master can also expect support from the states whose nationals he has rescued from danger. The national states of the rescued persons seem to include Indonesia, Pakistan and Afghanistan. The crew of the abandoned vessel were Indonesian nationals, it was an Indonesian vessel and it had departed from an Indonesian port. It is an obligation on the government of the relevant states, not the Master, to determine the solution to difficult questions of the status of large numbers of rescued persons and crew. Many of the rescued persons were claiming refugee status.[18] The flag state of the Tampa is Norway and the Norwegian government has rights and obligations to assist ships flagged with it. Those rights may well extend to taking other states to an international forum or tribunal if there be dispute over some aspect of the situation, including a failure to give emergency assistance.

Australia’s Rights and Obligations as the Coastal State

A ‘Coastal State’ is the state whose shores are adjacent to the seas in question. Australia was, therefore, the Coastal State to the position in which the Tampa found itself off Christmas Island. Australia was also the country of departure for the voyage and the vessel was loaded with Australian cargo. Article 24 of UNCLOS deals with some of the duties of the Coastal State, mainly dealing with the right of innocent passage of foreign ships, such as the Tampa. Innocent passage is defined in Article 19 in that passage is innocent if it is not prejudicial to the ‘peace, good order or security’ of the Coastal State. Under Article 18(2) innocent passage remains such if the passage includes, amongst other things, stopping in the territorial sea if rendered necessary by ‘distress or for the purposes of rendering assistance to persons, ships or aircraft in distress’.

Under Article 25 of UNCLOS, Australia has the right to take necessary steps in its territorial sea to prevent passage that is not innocent. Passage which is ‘not innocent’ is defined in Article 19(2) of UNCLOS to include ‘the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State’. Article 25(2) also gives the Coastal States powers in relation to vessels proceeding to or from its ports (or internal waters). These powers include the right to take steps to prevent any breach of conditions to which those ships are subject. It is debatable whether, when the Tampa arrived off Christmas Island and then entered the Australian territorial sea, it was on innocent passage. The debate may well come down on the side that it was not.

However, there is little doubt that the Tampa was then to be categorized as a vessel itself in distress, as were the crew on it, and also as one seeking assistance after rescuing those in danger at sea. The vessel and its Master were then claiming a discharge of the obligation of a Coastal State to give support to such a vessel. In this case, the ship was seeking that Australia take off the 438 persons rescued at sea. In ordinary circumstances those persons would have had no right, apart from humanitarian ones, to enter Australian territorial sea. Australia has a right to protect its borders from unwanted incursion. However, there are two relevant exceptions; namely, that they are refugees and/or they are distressed persons in danger at sea. As to the refugee position, see below. As to the issue of being in danger at sea, the rescued persons had a right, under humanitarian considerations, to temporary assistance to alleviate the danger and distress to which they had been subjected at sea. Further, the Tampa crew itself was also in danger at sea because of the large number of persons they had rescued, as to which also see below.

As mentioned, the Coastal State has the right contained in Article 25(2) of UNCLOS, to take steps to protect its waters from ‘breach of conditions to which those ships admitted to internal waters (or ports) are subject’. But this right is subject to the obligation contained in customary international law and in the conventions to which Australia is a party, to assist a vessel in distress. It has been suggested that the latter obligation does not necessarily amount to granting permission to dock or unload passengers but may simply extend to providing supplies and medical treatment. It is submitted that such an interpretation of the obligation might well apply to the situation where a vessel commences a voyage with asylum seekers on board, steams to Australia and then becomes distressed. However, in the present context the vessel concerned was obliged to rescue persons and has thereby itself become a distressed vessel. Australian port state rights did not arise directly as the Tampa was too large to enter the small Christmas Island port although they could have arisen indirectly.

Both Australia and Norway are parties to the International Convention on Safety of Life at Sea 1974 (SOLAS).[19] Pursuant to that convention, vessels are obliged to have on board certain safety equipment relative to the number of people the vessel is certified to carry and to maintain that safety equipment in good working order. The Australian Maritime Safety Authority (AMSA), exercising its Port State Control powers, regularly detains vessels that come into or attempt to sail from Australian ports in breach of those obligations. In many cases AMSA has detained vessels for inadequate lifesaving equipment. It would seem a clear breach of international and maritime obligations to refuse succour to a vessel in distress and then deliberately to direct, or even to ‘invite’, the vessel to sail out of a country’s territorial waters in obvious breach of safety obligations. To do so is clearly to put the health, safety and even lives of the persons on board at risk, as well as to risk the loss of the vessel itself and its cargo and, if the vessel actually be lost, possibly to create a marine environmental risk.

Commercial Implications for the M/V Tampa

The refusal of the Australian government immediately to relieve the Tampa of the rescued persons cost the Norwegian ship’s owners a significant amount of money, by loss of the use of the vessel and the extra costs to which the ship was put in chartering another ship to load and deliver the waiting cargo in Singapore. Further, whilst deviation to save life at sea is generally considered to be a justifiable alteration of the risk under marine insurance law, it is likely that an insurer would be reluctant to remain on risk for an extended voyage in these circumstances where there is obviously a significant increase in the risk to the vessel. The result could have been that the vessel was uninsured for any voyage it was obliged to take with the rescued persons still on board if the Master had obeyed the Australian government’s direction not to enter into or its invitation to sail from Christmas Island’s territorial waters.

Australia’s International Obligations in Relation to Refugees

Australia is a party to the Convention Relating to the Status of Refugees 1951[20] (‘the Refugee Convention’) and the Protocol Relating to the Status of Refugees 1967[21] (‘the 1967 Protocol’). Australia’s international obligations in relation to refugees extend to Christmas Island.[22]

The term ‘refugee’ is effectively defined by the Refugee Convention and 1967 protocol as applying to ‘any person who … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …’.[23] Given that the majority of those rescued by the Tampa were nationals of Afghanistan and nearby countries, where oppression was a notorious fact, it was almost certain that some of those rescued fell within this definition of ‘refugee’.

Article 33 of the Refugee Convention is important. It relevantly provides that ‘[n]o Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ Depending on what the Australian government was actually requiring of the Tampa, it could possibly have contravened this obligation in relation to any of the refugees on board. As it turned out, the Australian government paid monies to another country to take them ashore in that country, Nauru, and the New Zealand government generously helped out, so this provision was not contravened.

Article II(1) of the protocol requires parties ‘to co-operate with the Office of the United Nations High Commissioner for Refugees … and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol’. As the writer understands the facts, the UNHCR requested the Australian government to process the rescued people at Christmas Island, which request was refused. If this was so, this was a breach of the Refugee Convention.

Possible International Tribunals

Pursuant to Article IV of the 1967 Refugee Protocol, parties accept the jurisdiction of the International Court of Justice (ICJ) to settle disputes relating to the interpretation or application of the protocol. It was and is arguably open to Norway to take Australia to the ICJ in relation to the manner in which it treated the Tampa, a ship under its flag. The applicable law would be those of the international treaties and not of the countries’ domestic legislation.

Further on the question of taking Australia to an international tribunal, it is noted that the International Tribunal for the Law of the Sea (ITLOS) was and is also a possibility as having jurisdiction to hear a complaint by Norway against Australia. ITLOS was established in Hamburg in 1996 under UNCLOS, which gave several options to parties for dispute resolution.[24] Parties to a dispute could elect to proceed in ITLOS under Annex VI, in the arbitral tribunals under Annex VII, or in a special arbitral tribunal constituted under Annex VIII. Alternatively, the parties could proceed under the jurisdiction of the ICJ. If the parties in dispute have not selected a common procedure, or have made no selection, then the dispute must be submitted to arbitration (under Annex VII) unless the parties otherwise agree.[25] UNCLOS has compulsory dispute resolution mechanisms written into its terms so that accession to the convention automatically commits the state parties to the dispute resolution provisions. The tribunal has special jurisdiction in a number of areas, one of which relates to the prompt release of vessels and their crews arrested in foreign ports and the prescription of provisional measures.[26] It also has special jurisdiction to prescribe provisional measures where there is urgency pending the constitution of an arbitral tribunal.[27]

It is arguable that the Tampa was unlawfully boarded and then controlled by the Australian Defence forces. The Australian government maintains that the ship was free to sail elsewhere but the difficulties about this have been mentioned above. If there was unlawful boarding and control, Norway had the option as the flag state, acting for the shipowners or charterers, to seek release of the vessel by order from ITLOS under Article 292 (prompt release of vessels). It probably is still open for Norway to seek compensation, on behalf of the owners or charterers, from Australia for the delay in taking off the rescued persons within a reasonable time of the request being made.[28]

The Australian Litigation

As has been mentioned, two humanitarian interest groups commenced proceedings in the Federal Court of Australia, in the Melbourne registry, seeking determination as to the lawfulness of the conduct of the Australian government concerning the treatment of the rescuees on the Tampa.

The relief that was sought by the Applicants was under the ancient order of a writ for habeas corpus which was that the body, meaning the actual person, should be brought before the court, for it there to be decided whether the actions of detaining that person was lawful or not. It was developed from the ancient common law where it was in issue whether a person was lawfully detained, usually by the Crown, and those interested in the person’s welfare could not get access to the person. As was said by Madden CJ: ‘The meaning of habeas corpus is that it is a writ that is issued when somebody informs the court that somebody else is wrong-fully detained against his or her will, and ought, therefore, to be relieved from that imprison-ment. The writ goes at the suit of any body in relation to the mere imprisonment of any person’. (R v Waters [1912] VLR 373). Isaacs J in the High Court, in a lengthy discussion on the origins and effect of the writ, said that the writ is ‘directed to the person complained against, who is thereby brought before the Court, to defend the imprisonment if he can’. [Ex parte Walsh and Johnson; Re Yates [1925] HCA 53; (1925) 37 CLR 36 at 76].

The outcome of the litigation was that the Commonwealth won, by majority, on appeal so that the Writ did not issue. Mr Vadarlis sought to appeal to the High Court to finally test the lawfulness of the government actions but by the time his application for Special Leave to Appeal was heard the persons the subject of the possible relief had been removed from Australian jurisdiction, to Nauru and New Zealand, and so his application was dismissed by that court. The result is that the lawfulness of the government actions was never tested at the highest level. Further, the government passed legislation with retrospective enactment to prevent this being done subsequently.

The Applicants and their lawyers in the litigation had acted pro bono, which means that they acted without any payment and in the public good. It is a long standing principle and much encouraged that lawyers should act pro bono for unfortunate victims of circumstance as part of their community responsibility. Other professions and sectors of the community act in the same way in using their different skills. Two other long standing principles are that the Crown, in this case the Commonwealth government, should be a ‘model’ litigant and that the Crown does not normally seek its costs against community groups who act in the public interest.

By press release dated 3 October 2001 the Commonwealth Attorney General announced that the Commonwealth had filed submissions in the Federal Court seeking costs orders against the Applicants, but not the two parties that intervened in the case, the Human Rights and Equal Opportunity Commission and Amnesty International. The press release stated that the reason for so doing was that the litigation ‘was not in the public interest’ and that it was an ‘interference with an exercise of the executive power of the Commonwealth’. It then went on, in a separate paragraph, to state that it is commendable that the legal practitioners acted on a pro bono basis but that the fact that the Applicant was a lawyer acting pro bono should not determine whether costs should not be awarded against him. In a talk-back radio interview in October the Attorney General admitted that the Commonwealth seeking costs might deter people wanting to take cases in the public interest and it might ‘regrettably be a consequence’.

In contrast to the attitude of the Attorney General is that of French J, one of the majority judges on the appeal, who said:

The question of costs should be the subject of written submissions, particularly having regard to the public interest which the respondents (the Applicants to the hearing and Respondents to the appeal) have sought to advance in bringing these proceedings.



The counsel and solicitors acting in the interests of the rescuees 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 their actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.’ (Judgment, paras 215, 216).

The President of the Law Council of Australia, in writing about the question of the asylum seekers in September 2001, said that ‘it is important to recognise that in a democratic society individuals have certain rights, including the right to have government decisions reviewed by the courts’. (Australian Lawyer, September 2001, p. 2; see web site www.lawcouncil.asn.au). She also said that when ‘lawyers do stand up and take on difficult or unpopular pro bono cases we should applaud them and give recognition for the work those lawyers are doing’ and, further, that ‘what seems to have been lost is consideration for the well-being of over 400 human beings, let alone that of the Tampa and its captain and crew, who were guilty of no more than assisting a ship in distress’. (Australian Lawyer, October 2001, pp. 1-2).

On the question of whether the Applicants should or should not be free to bring proceedings to court it should be noted that the very purpose of the courts includes to test whether a government is acting within its power. A government should welcome a bona fide test and a government should be the first not to wish to act unlawfully. On the questions of whether the Parliament should do so, let alone the executive not even acting with Parliamentary consent, the Chief Justice of the High Court, Gleason CJ, said:

Parliament could not be permitted to be the judge of the extent of its own power. That would be inconsistent with the division of powers in the Constitution by which the judicial power … was assigned to the Court. And it would be inconsistent with the rule of law. (‘Courts and the Rule of Law’ by Murray Gleason, The Rule of Law Series, Melbourne University, 7 November 2001; to be found in the High Court web site www.hcourt.gov.au/speeches.cj.)

The judgment of the majority in the Federal Court (Black CJ and French J) were firmly against this point about the litigation being an interference with executive power and that it was not in the public interest. They made it clear that ‘it is not an interference with the exercise of judicial power to determine whether it exists in relation to the subject matter to which it is applied and whether it is done within its scope’ (para 30). They went on to mention that the very reason why s. 75(v) of the Australian Constitution, which gives original jurisdiction to the High Court in matters where a writ of Mandamus or prohibition or an injunction is sought against the Commonwealth was inserted, was because it could do no harm and ‘might protect us from a great evil’ (para 31. The words are those of Hon Andrew Inglis Clark, Attorney-General for Tasmania, in the Constitutional debates).

In the result the Full Court of the Federal Court, by majority dismissed the application by the Commonwealth for costs, with the result that the parties all paid their own costs of the litigation.

Recognition of the Conduct of the Master, Officers and Crew of the Tampa

In recognition of his conduct as the Master of the Tampa in the Christmas Island incident Captain Rinnan was awarded ‘Shipmaster of the Year’ in London by the shipping newspaper Lloyds List and also the Nautical Institute. In Sydney, in October 2001, Captain Rinnan was awarded the prize of Newsmaker of the Year, which was accepted by Mr Robert Ritchie, Wallenius Wilhelmsen, on his behalf. ‘Captain Rinnan was a very popular choice among the 400 guests of the Lloyd’s List DCN Australian Shipping and Transport Awards’, as reported by that paper on 22 October. Captain Rinnan was also recognised by his own, the Norwegian, government on 21 November 2001 when he was awarded the honour of ‘Royal Knight first class’ for ‘brave and humanitarian participation’ as captain of the vessel, together with the participation of his crew. The award was made by the Norwegian Minister for Foreign Affairs on behalf of the King.

The owners of the Tampa are proud of the conduct of their Master and crew and have staunchly maintained that their ships would continue to perform their humanitarian duty at sea even though the coastal State may not give support. They have said that they ‘expect any of our vessels that discover shipwrecked humans to take them on board’. (Speech at the MLAANZ Conference, Sydney, 11 September 2001; ‘Still making waves’, article by Mr David Marr, Sydney Morning Herald, 12 January 2002).

Comment

On the Tampa’s arrival off Christmas Island, the Australian government denied access to the territorial sea and landing of the rescued persons at Christmas Island. It did provide some emergency relief to the rescued persons, on a minimal scale and after refusing assistance for two days. The Australian government sub-sequently invited the vessel to proceed back to sea in an unseaworthy condition after it entered the Australian territorial sea. The rescued persons were a mixture of men, women and children. They were not in good health. Some of them may have been in a life-threatening situation. The Master and crew (27 in number) would have been at risk of aggressive behaviour from some of the 433 persons on board. Some of the rescued persons claimed refugee status and Australia had an obligation to investigate whether this was so.

The conduct of the Australian government towards the M/V Tampa was in breach of Australia’s international lawful obligations. These obligations, in the present circumstances, overrode the rights concerning persons unlawfully entering its territorial sea.

A major issue is that a foreign-flagged merchant vessel was itself in distress because it complied with its obligations under maritime and international law to rescue people. Australia owed the vessel a corresponding duty under maritime and international law to offer the vessel appropriate assistance. The most useful assistance Australia could have offered was to permit the vessel to offload the rescued persons on Christmas Island. Those persons could then be given succour and support on the island. When that had been attended to, they could then be processed according to law on whether they were refugees or illegal entrants into Australia.

The fact that the persons rescued may well be asylum seekers is not relevant to the nature and extent of those obligations towards the Tampa. The Australian government also passed legislation that had retrospective effect to remove the rights of the persons who may have been unlawfully treated by the government from recourse to the courts to seek determination of any breaches and, perhaps, redress for them. Retrospective legislation of this kind is not the conduct usually favoured by civilised countries.

The procedures that should have been followed were that the rescued persons should have been landed immediately and given medical and other humanitarian assistance and screened for infectious and other disease. When their health and well-being had been attended to then they should have been given access to the usual legal assistance and processed according to law. Those who were found not to have a legal right to be in Australia should have been deported. Those found to be genuine refugees should have been given succour and support at least until they could safely return to their homes.

An uplifting feature of the incident was the exemplary conduct of the Owners, Master, officers and crew of the M/V Tampa. They upheld the best traditions of the sea and humanitarian assistance to those in peril at sea and it is pleasing to note that their competence and forbearance in a difficult situation has been recognised.

In conclusion one may fairly say that the Australian government acted appropriately on the principle of protecting a country’s sea borders from ‘boat people’ but that the manner of its execution in relation to the Tampa left much to be desired.

Endnotes


[1] Reader in Law and Executive Director, Centre for Maritime Law, University of Queensland.

[2] Many aspects of this article are also contained in the article of a similar name in Asia Pacific Shipping, October 2001, Baird Publications, Australia, and in an article also of a similar name in BIMCO Review 2001, BIMCO, London, February 2002.

[3] Large vessel with containers on the weather deck, of 262 metres overall, 44,013 DWT, owned by Wilh. Wilhelmsen ASA, Norway, operated by Wallenius Wilhelmsen, built in 1984. The cargo was Australian and New Zealand exports for Asia.

[4] From Singapore the Tampa was bound for Hong Kong and Asian and Japanese ports. The author is indebted to Robert Ritchie and Yvette Farrell, Sydney, and Emil Gamborg, Norway, for assistance on the accuracy of the facts concerning the vessel and the incident.

[5] ‘M/V Tampa: Sequence of Events of the M/V Tampa’s Melbourne to Fremantle passage’ and beyond; Schedule provided by Wallenius Wilhelmsen to author.

[6] ‘M/V Tampa’, Schedule, above. Entry for 29 August.

[7] The army personnel were protection against any unlawful conduct by the rescuees towards the ship or its crew.

[8] However, some army medical teams and other persons were given assistance and access to visit the ship.

[9] The decision is on the web page under http://www.fedcourt.gov.au/, as case number [2001] FCA 1297.

[10] The decision is on the web page at http:// www.fedcourt.gov.au/, as case number [2001] FCA 1329.

[11] Section 4.

[12] Sections 5, 7.

[13] Australia became a party to this convention on 22 June 1985. Australian Treaty Series 1986 No. 29. Annex Chapter 2.1.10 provides: ‘Parties shall ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such person or the circumstances in which that person is found.’

[14] Article 10(1) provides: ‘Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea.’ Article 10(2) provides: ‘The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1’. Article 11 provides: ‘A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for cooperation between salvors, other interested parties and public authorities in order to ensure the efficient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.’ Australia became a party to the Salvage Convention 1989 on 8 January 1998.

[15] Australia became a party to UNCLOS during 1994 and it came into force on 16 November 1994.

[16] S.317A provides that ‘The Master of a ship shall, so far as he or she can do so without serious danger to his or her ship, its crew and passengers (if any), render assistance to any person, even if such person be a subject of a foreign State at war with Australia, who is found at sea in danger of being lost.’ It further provides, in s.317A(2), that a master who fails to comply ‘shall be guilty of an offence punishable on conviction by a fine not exceeding $20,000 or imprisonment for a period not exceeding 10 years, or both.’

[17] I am indebted to Professor Erik Rosaeg, Scandinavian Institute of Maritime Law, University of Oslo, Norway, for his assistance. The obligations are implemented in Norway mainly in respect of emergencies arising out of collision or other ship manoeuvring only; see the Maritime Code, 1994, sec. 135 (third paragraph) and 164, and the Penal Code, 1902, sec. 314. It is possible that the Master of a ship registered in Norway that passes boat refugees without helping them could be prosecuted under sec. 387, cfr sec. 12, of the Penal Code.

[18] The claims of the rescued persons to be refugees from oppression were not able to be assessed off Christmas Island as the Australian government refused to assist lawyers and human rights personnel to establish communications with the rescued persons or to get to the Tampa to determine the position and give advice.

[19] Australia became a party to SOLAS on 17 November 1983.

[20] Australian Treaty Series 1954 No. 5. Australia became a party to the Refugee Convention on 22 April 1954. The author is indebted to his colleague Mr Anthony Cassimatis of the T.C. Beirne School of Law, University of Queensland, for assistance with the legal aspects of refugee law.

[21] Australian Treaty Series 1973 No. 37.

[22] Article 40 of the Refugee Convention is a territorial application clause that provides that: ‘Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. …’ Australia’s Instrument of Accession to the Convention was deposited on 22 January 1954. Christmas Island did not become an Australian Territory until 1958; see the Christmas Island Act 1958 (Cth). Article I(1) of the protocol provides that ‘[t]the States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined’. The relevant article of the Refugee Convention in relation to the current crisis is Article 33. The protocol, in Article I(3), relevantly provides that ‘[t]the present Protocol shall be applied by the States Parties hereto without any geographic limitation’.

[23] See Article 1A(2) of the Refugee Convention and Article I(2) of the protocol.

[24] Part XV deals with settlement of disputes. Parties are obliged to settle disputes by peaceful means, Art. 279, and where no other means is chosen, then the provisions of Part XV apply – Art. 281, 287.

[25] Art. 287(5).

[26] UNCLOS Art. 292(1) provides: ‘Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.’

[27] UNCLOS Art. 290(5).

[28] The ITLOS website has full details of its cases, see http://www.un.org./Dept/los. The several cases of applications to ITLOS for release of vessels may be found in the ITLOS judgments from this website.

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