The Tampa affair: 15 years on

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Background

Tampa

On 26 August 2001 a Norwegian freighter, the MV Tampa, rescued 433 people from aboard the stranded boat, KM Palapa 1, in the Indian Ocean. The Palapa had been at sea for three days, having set out from Java in an attempt to reach Christmas Island where passengers were intending to lodge claims for asylum. Australian authorities had sent out the call for the boat to be rescued.

The Tampa was given leave by Indonesian authorities to disembark the rescued passengers at the port of Merak, but due to intense requests by a number of the asylum seekers and subsequent concern for the safety of those onboard, the Tampa captain, Arne Rinnan, opted to sail for Christmas Island. 

The refusal of the then Coalition government, led by Prime Minister John Howard, to allow the Tampa to disembark the asylum seekers on Christmas Island, and the subsequent boarding of the vessel by Australian SAS forces and ultimate removal of most of the asylum seekers to a hurriedly established offshore detention centre on Nauru, represents a significant moment in the history of Australian asylum policy, political debate and migration law. 

The ‘Tampa affair’, as it has become known, helped to ensure that the deterrence of asylum seekers became a leading issue in the 2001 Australian federal election campaign (and in later elections), and contributed to the rationale for the system of offshore processing and the policy of turning back boats that have developed since. The ‘Tampa affair’ was a product, however, of an already restrictive and politicised asylum policy. As noted by researchers such as Peter Mares and James Jupp, the Australian government’s response to the vessel was informed by an increase in asylum seekers arriving by boat at that time (and the negative public perception of this issue), and challenges to the capacity and management of immigration detention centres onshore. 

UNHCR granted the Nansen Refugee Award to the captain, crew and owner of the Tampa, who "demonstrated personal courage and a unique degree of commitment to refugee protection".

 

Other resources:

 


The Tampa affair and the law

Domestic legal challenge

The Victorian Council for Civil Liberties brought a legal challenge to the Australian Government’s actions in seizing the Tampa and preventing its passengers from reaching Australia.

In the Federal Court case of Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297, North J held that the Australian government did not have the authority to exclude the asylum seekers aboard the MV Tampa from Australia, as the Migration Act was intended to comprehensively regulate the removal of non-citizens, leaving no room for the exercise of prerogative power. North J granted the writ of habeus corpus (a constitutional safeguard against unlawful detention) and ordered that the passengers rescued by the Tampa should be brought to the Australian mainland.

The government appealed to the full Federal Court in Ruddock v Vadarlis [2001] FCA 1329. The majority of French and Beaumont JJ, found that the Migration Act  did not limit the government's authority under s 61 of the Constitution to exclude, detain or expel 'aliens'. Black CJ dissented. In upholding the appeal, the order for habeas corpus was dismissed as it was found that the government acted within its powers under the Migration Act. 

Following the decision, the Australian Parliament enacted the Border Protection (Validation and Enforcement Powers) Act 2001, which sought to retrospectively validate the Government’s actions with respect to the Tampa. 

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International legal analysis

The Tampa affair raised numerous issues under international refugee law, human rights law and the law of the sea. The incident focused international attention on the question of who has responsibility for accepting asylum seekers rescued at sea. The International Maritime Organisation subsequently developed standards to clarify responsibilities and standards for the treatment of persons rescued at sea.

See UNHCR's text on the Tampa affair in The State of the World's Refugees 2006 report

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The following articles provide an analysis of the international legal aspects of the Tampa affair and its aftermath.

 


After the Tampa

Offshore processing

In response to the Tampa affair, the Howard government established offshore processing under the ‘Pacific Solution’, the predecessor to the current policy of offshore processing on Manus Island and Nauru.

Other resources:

For information about the legality of offshore processing, and Australia’s responsibility under current offshore processing arrangements see our factsheets:

See also Madeline Gleeson, Offshore: Behind the Wire on Manus and Nauru, UNSW Press 2016

The documentary Chasing Asylum examines the human consequences of Australia's current offshore processing policies. See also the documentary Freedom or Death regarding detention on Nauru under the Pacific Solution.

Boat turnbacks

The Tampa affair resulted in the establishment Operation Relex, the first of several operations under which Australian authorities turn back boats.

Other resources:

For background and legal information about turning back boats, see our factsheets:


The passengers: Where are they now?

Hear some of the stories of passengers from the MV Tampa:

 

 


Documentaries

These documentaries recount personal stories from former asylum seekers on board the Tampa:

Relevant treaties and guidelines