The Tampa affair: 20 years on

Background

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:

In this video, David Marr of the Sydney Morning Herald explains the Tampa incident unfolded: ‘The boat that changed it all’.
Feature pages on the Tampa as a ‘turning point’ in Australian history have been created by the National Museum of Australia and the ABC.
Peter Mares offered this analysis of the significance of the Tampa affair in The Monthly, a decade after the incident.
Captain Arne Rinnan gave this press conference in September 2001.
Other interviews with Arne Rinnan a decade on were featured on Channel 10 and SBS.

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.

Other resources:

S Evans, 'Developments - Australia', International Journal of Constitutional Law (2003) 1: 123-130
'Refugees: The Tampa Case', A reflection from Julian Burnside, who represented the Victorian Council for Civil Liberties in the case.

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

Other resources:

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

GS Goodwin-Gill, 'Refugees and Responsibility in the Twenty-First Century: More Lessons Learned from the South Pacific', 2003 Pacific Rim Law & Policy Journal: 323-347
CMJ Bostock, ‘The International Legal Obligations owed to the Asylum Seekers on the MV Tampa’, International Journal of Refugee Law (2002) 14 (2 and 3): 279-301
Bostock argues that the Australian Government’s actions undermined the international refugee protection regime through denying the right of the asylum seekers to seek protection, and raised concerns relating to Australia's obligations under customary law and refugee law.
E Willheim, ‘MV Tampa: The Australian Response’, International Journal of Refugee Law (2003) 15 (2): 159-191
Willheim examines the international legal implications of the Tampa Affair, and issues arising in the interaction between maritime and refugee law in these circumstances.
D Rothwell, ‘The Law of the Sea and the M/V Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty’ (2002) 13 Public Law Review 118 (Subscription only)
Rothwell argues that the actions of Australia in the Tampa Affair, including denying Tampa's entry into Australian waters, ignoring the Tampa's distress calls, and using military force to board the ship in distress so as to prevent the ship reaching Australia and rescuees disembarking, calls into question Australia's commitment to the law of the sea and international law.
M Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’, International Journal of Refugee Law (2002) 14 (2 and 3): 329-364
Pallis examines the obligations of states toward asylum seekers at sea, concluding that there were at the time a range of gaps in the protection framework for such asylum seekers.
N Frenzen, ‘10th Anniversary of Australia’s Tampa Affair’, Migrants at Sea, 26 August 2011
Frenzen explains how the guidelines for protection of asylum seekers at sea changed in the 10 years following the Tampa affair.
M Crock, ‘In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ (2003) 12 Pacific Rim and Policy Journal 49
Crock examines the different interpretations of the legality of the Australian Government's actions in the Tampa affair, exploring the varying characterisations of the facts and law itself.
P Mathew, ‘Australian Refugee Protection in the Wake of the Tampa’ (2002) 96 American Journal of International Law 661 (Subscription only)
Mathew critiques the legality of the Australian Government's actions during the Tampa Affair, and in introducing the Pacific Solution.
A Edwards, ‘Tampering with Refugee Protection: The Case of Australia’, International Journal of Refugee Law (2003) 15 (2): 192-211
Edwards finds that, as of 2003, many of legislative amendments introduced after the Tampa affair were in breach of, or risked breaching, international refugee law.

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?

These books, talks and news articles feature the stories of those rescued by the Tampa:

These are the people Australia didn’t want — the controversial Tampa refugees reveal life now', news.com.au, 11 June 2016
Abbas Nazari, who was a child aboard the Tampa, has published a book about his experience called 'After the Tampa' (Allen & Unwin, 2021). Abbas also gave a TedX talk in 2012 and was interviewed by The Guardian in 2019.

Documentaries

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

The Leaky Boats (2011)
Freedom Stories (2015)

Relevant treaties and guidelines

Convention relating to the Status of Refugees (1951)
United Nations Convention on the Law of the Sea (1982)
International Convention on Maritime Search and Rescue (1979)
International Convention for the Safety of Life at Sea (1974)
International Maritime Organization Assembly Resolution A.920(22) on ‘Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea’ (2001).
International Maritime Organization Guidelines on the Treatment of Persons Rescued at Sea, MSC.167 (78) (2004)
Conclusion on Protection Safeguards in Interception Measures No. 97, UNHCR Executive Committee 54th session (2003).