THE HIGH COURT AND THE TAMPA REFUGEES

Transcription

1 THE HIGH COURT AND THE TAMPA REFUGEES 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 ( 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,

2 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 rubberstamped 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 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 M at (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).

3 HEAD: THE HIGH COURTAND THE TAMPA REFUGEES 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.

4 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. They represent a bulwark against tyranny.12 North J made it clear that the Tampa refugees had sought to apply for refugee status. He quoted a letter that they had given to the Norwegian ambassador formally asking for asylum in Australia. It stated in part: We do not know why we have not been regarded as refugees and deprived from rights of refugees according to the International Convention (1951). We request from Australian authorities and people, at first not to deprive us from the rights that all refugees enjoy in your country. In the case of rejection, due to not having anywhere to live on the earth, every moment death is threatening us.i3 Justice North rejected the government's claim that the refugees were not actually detained because they were free to go anywhere in the world, except Australia. The government and the SAS troops, he said, had: lo 1 I 12 l3 Judgment of North J, Introduction at para 19. Judgment of North J, Introduction at para 7. Deane J in Re Bolton & Anor; Ex parte Beane (1987) 162 CLR 514 at , cited by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 19. Judgment of North J, para 28.

5 HEAD: THE HIGH COURTAND THE TAMPA REFUGEES 27 [Dlirected where the MV Tampa was allowed to go and not to go. They procured the closing of the [Christmas Island] harbour so that the rescuees would be isolated... The respondents took to themselves the complete control over the bodies and destinies of the rescuees.i4 I The judge also considered that Vadarlis had standing to argue that, by preventing him from communicating with the rescuees, the government had infringed his implied constitutional freedom of communication. However, North J did not consider it necessary to come to a final view on that issue, because he had already ordered the government to release the rescuee~.'~ Given the fundamental importance of the right to obtain legal advice and representation, this is clearly a legal question of public importance that the High Court should have considered. North J emphasised that another issue would have to be determined by the High Court: that of the applicants' standing to seek an injunction to prevent the government breaching the Migration Act. This issue also arose only because the government prevented the rescuees from bringing an action themselves. After reviewing the High Court's discussion of standing in the Bateman's Bay case, North J concluded that the applicants did not have standing, but said it might be appropriate for the High Court to consider the issue in the light of the comments of Gaudron, Gummow and Kirby JJ in Bateman's ~ a ~. ' ~ The Divided Full Federal Court In the Full Federal Court, Chief Justice Michael Black upheld North J's ruling, delivering a lengthy judgment substantially agreeing with his colleague's conclusions. However, two judges - Robert French and Bryan Beaumont - held that the government's actions were authorised by section 61 of the Constitution, which invests the government with executive power, including the so-called prerogative powers formerly exercised by the British monarchy. In essence - albeit by two contrasting routes - the majority upheld the government's argument that, at least as far as non-citizens are concerned, it has the right to use executive power to avoid the operation of legislation. This proposition gives governments far-reaching arbitrary power. In the first place, it severely undermines the principle of habeas corpus. Beaumont J went as far as to deny that the Federal Court could issue a writ of habeas corpus, and upheld the government's appeal on that basis." Secondly, French J interpreted the scope of 'executive power' so widely that governments could take virtually any action in the name of defending 'national sovereignty'. Parliament could, by legislation, circumscribe executive power, but 'the greater the significance of a particular executive power to national sovereignty, the less likely it is that, absent clear words or l Judgment of North J, para 81. Judgment of North J, paras Judgment of North J, paras See Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247. [2001] FCA 1329, judgment of Beaumont J, para 101.

6 inescapable implication, the parliament would have intended to extinguish the This reasoning could allow a government to resort to a range of extra-parliamentary measures. To find judicial support for the forced expulsion of aliens, the majority reached back to the period in which the 'White Australia' policy was developed. They cited the 1891 case of Musgrove v Toy, in which the British Privy Council endorsed a decision by the Victorian Supreme Court involving the exclusion of a Chinese man who had arrived in the port of Melbourne aboard the SS Afghan. In his dissent, Black CJ examined Musgrove v Toy more rigorously and concluded that it did not support such a broad view of the prerogative power to exclude aliens. After reviewing other authorities, he also took the view that, in times of peace, the executive power to prevent the entry of unlawful noncitizens drives only from statute.lg It is beyond the scope of this paper to consider the merits of these differences that divided the Full Federal Court, but clearly the issues were of sufficient moment, and the split on the court (effectively two-two, when North J's original judgment is counted) serious enough to warrant an appeal to the High Court. The Brief High Court Hearing In his High Court submission, Vadarlis accused the government of 'evading' North's ruling by 'taking persons out of the jurisdiction'. Moreover, he insisted that the case raised 'an obvious issue of public interest' because the government had asserted an 'alleged prerogative ower' that had not been exercised 'since at least the year of the revolution7% This was a reference to the English Revolution of the seventeenth century, which ended the feudalbased absolute monarchy. Despite the historic significance of the case, the judges summarily dispensed with it after a hearing that lasted less than two hours, followed by a bare fifteen-minute recess. In a one-page judgment, they declared that the claim for a writ of habeas corpus had been 'overtaken by events' - namely the government's forced transfer of the Tampa refugees to Nauru. The three justices asserted that: If the persons concerned are now detained (a question about which there has been no trial) each would be detained in a foreign country subject to whatever is the law of that country. In doing so, the judges chose to disregard affidavits showing that the Australian government was paying all the costs of the Nauru detention camp and that Australian officers were 'overseeing' the 'arrangements' there. Whatever the precise legal situation in Nauru, the refugees were clearly being held on Australia's behalf. Moreover, Australian military personnel herded the '* Judgment of French J, para 185. l9 JudgmentofBlackCJ,paras See generally the transcript of Vadarlis v MIMA & Ors M

7 HEAD: THE HIGH COURTAND THE TAMPA REFUGEES 29 " See Head (2000). '' Border Protection (Validation and Enforcement Powers) Act 2001, Part 2, ss 6, Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001, s 198A(2).

8 These provisions could allow refugee boats to be sunk deliberately to prevent them landing on Australian soil. And this is not far-fetched. Shots have already been fired in the direction of at least one over-crowded and sinking boat, whose occupants government ministers then falsely accused of throwing children overboard.24 The Human Rights and Equal Opportunity Commission, a respondent in the High Court hearing, submitted that the legislation was unconstitutional on two grounds. First, the sections cited above purported to exclude the exercise of federal judicial power in a way that is inconsistent with ~ irn.~~ Secondly, by seeking to validate that which was previously invalid, but without defining any legal standard, the legislation also usurped the judicial power. The three justices described this issue as 'an important constitutional question' and said the same of the issues of standing and executive power, but declared it unnecessary to examine the questions because of the view they had formed that the Australian detention had come to an end. The Political Climate As the Full Court deliberated, government leaders and media commentators applied intense pressure to the judges, arguing that the terrible events in the United States on 11 September 2001 made it essential for the government to wield wider powers. The Commonwealth Solicitor-General, David Bennett QC, told the court that North J's decision could restrict the government's ability to avoid such disasters as the attack on the World Trade Center. In the media, Defence Minister Peter Reith insisted that, if North's ruling stood, it would open the floodgates for terrorists to enter the country on refugee boats.26 Without offering a skerrick of evidence, a junior minister, Peter Sli per, 9 2Y claimed there was 'an undeniable linkage between illegals and terrorists. Media proprietors and columnists openly called into question the right of courts to test the validity of legislation. An editorial in the Sydney Daily Telegraph attacked Vadarlis and the Victorian Civil Liberties Council for showing 'suspect' judgment: 'The broader issue is the right of a court to act against the wishes of the elected government,' it insisted.28 Sydney Morning Herald columnist Padraic McGuinness labelled the Civil Liberties Council 'the Council for Criminal Liberties', and expressed the hope that the terror attacks in America would render legal rulings redundant: 'Popular feeling will now ensure that the government will have little difficulty in ti htening up on refugee policy so as to diminish the interference of the courts.,f3 24 See Head (2001a). 25 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR O'Loughlin and Skehan (2001). 27 Sydney Morning Herald (2001). 28 Daily Telegraph (Sydney)(2001). 29 Sydney Morning Herald, 13 September 2001.

9 HEAD: THE HIGH COURTAND THE TAMPA REFUGEES 31 After the Full Federal Court decision was handed down, the government tried to bully the lawyers who had acted pro bono in arguing the refugees' case. It threatened to pursue them for crippling legal costs if they appealed to the High Court, breaching a long-standing convention of not seeking costs in cases of public importance. It also warned that the lawyers could be charged personally with the expense of keeping the refugees aboard the Manoora while the High Court deliberated.30 Writing in the Australian, two Australian National University legal academics, Robin Creyke and John McMillan, asserted that the Full Federal Court should have declined to hear the Tampa case on the ground that it was non-j~sticiable.~' The authors went so far as to describe judicial review as a 'negative disruptive factor'. They seriously suggested that the legality of the government's actions should not be tested, because anyone wronged could sue for damages at a later date. (This is ludicrous given that the refugees have been removed from the jurisdiction and, in any case, the courts have consistently refused to award damages for breaches of statutory duties.) They also claimed that discussion of the dispute by national political leaders and the mass media provided an appropriate 'accountability mechanism' - ignoring the -- - manipulative role played by politicians and the media in demonising asylum seekers, particularly in the lead-up to the 10 November federal election. As authority for their argument, the authors offered Minister for Arts, Heritage and Environment v Peko- Wallsend where. in 1987, the Federal Court ruled &at the mining company's challenge to a cabinet decision to nominate Kakadu for World Heritage listing was non-justiciable and ought to be 'decided in the political arena'.32 Yet that was a procedural fairness case, in which the company sought the right to be heard by the cabinet. It is an elementary proposition of administrative law that, at least in terms of ultra vires, no level of government is immune from judicial review.33 The views advanced in the media were arguably reflected in comments from the High Court bench. When Vadarlis's barrister contended that the government had acted 'contrary to law', Gaudron J accused him of 'playing political games', insinuating an illegitimate political purpose behind his challenge to the government's illegal action. Despite the magnitude of the issues at stake, the High Court decision was hardly reported in the mainstream media. In one interview, Eric Vadarlis described the High Court decision as 'very disappointing' for the refugees on Nauru, who would now be 'forgotten' and 'off the front pages forever'. He said the verdict was 'frightening' from the standpoint of arbitrary government power: 30 Seccombe and Marr (2001). I 31 Creyke and McMillan (2001). 32 (1987) 15 FCR 274 at 278 per Bowen CJ See, for example, R v Toohey: En parte Northern Land Council (1981) 151 CLR 170; FA1 Insurance v Winneke (1982) 151 CLR 342; Re Ditford: Ex parte Deputy I Commissioner of Taxation (1988) 83 ALR 265.

10 It is the start of the line. At the moment, the government has incredible and wide-ranging powers. The prerogative of the executive is unchecked. It is not just for migration. It could be for freedom of assembly, or any conduct at This is indeed a timely warning. At this point, the measures rubberstamped in the Tampa case - arbitrary detention and unfettered use of executive power - apply directly only to asylum seekers, but the assault on democratic rights will not stop there. Following the High Court decision, Attorney-General Daryl Williams confirmed the government's intention to proceed with legislation giving the political police - the Australian Security Intelligence Organisation (ASIO) - powers to detain people incommunicado for interrogation for up to 48 hours without charge, deny them access to legal advice and force them to answer questions, on pain of imprisonment for up to five years.35 Secondary Sources References Robin Creyke and John McMillan (2001) 'No Place for Dispute in Court', Australian, 25 September, p 13. Daily Telegraph (Sydney) (2001) 'Outraged Elite All at Sea', 8 September. Michael Head (2000) 'The High Court and the Removal of Kosovar Refugees' 4 Macarthur Law Review 197. Michael Head (2001a) 'Australian Election: The Howard Government's Big Lie Unravels', World Socialist Website, Michael Head (2001b) 'Australian High Court Rubberstamps Howard Government's Treatment of Tampa refugees', World Socialist Website, David Marr (2001) 'Arne Rinnan, A Man Who's Not Like Us', Sydney Morning Herald, 22 December, p 20. Toni O'Loughlin and Craig Skehan (2001) 'Reith Blasts Court as New Boat Arrives', Sydney Morning Herald, 17 September. Michael Seccombe and David Marr (2001) 'Appeal and You'll Pay: Liberties Lawyers Warned on Court Costs', Sydney Morning Herald, 18 September. Michael Seccombe (2001) 'Detainees for Succour: Nauru to get $10 m More', Sydney Morning Herald, 12 December, p 1. Sydney Morning Herald (2001) 'Minister Claims Link Between Boatpeople and Terrorists', 18 September. 34 See Head (2001b). 35 D Williams, media release, 'upgrading Australia's counter-terrorism capabilities', 18 December 2001,

11 HEAD: THE HIGH COURT AND THE TAMPA REFUGEES 33 Cases Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 FA1 Insurance v Winneke (1982) 151 CLR 342 Ministerfor Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274 R v Toohey: Ex parte Northern Land Council (1981) 151 CLR 170 Re Bolton t3 Anor; Ex parte Beane (1987) 162 CLR 514 Re Ditford: Ex parte Deputy Commissioner oftaxation (1988) 83 ALR 265 Ruddock v Vadarlis [2001] FCA 1329 Vadarlis v MlMA and Ors M93/2001 at Victorian Civil Liberties Council Incorporated v Minister for Immigration and Multicultural Affairs [2001] FCA 1297 Legislation Border Protection (Validation and Enforcement Powers) Act 2001 Jud~cia y Act 1903 Migration Act 1958 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001