by John Howard
Separately, I telephoned the Norwegian Prime Minister, Mr Jens Stoltenberg, to reinforce our concern about what was occurring. He absolved himself and his Government of any responsibility, despite the fact that it was a Norwegian-registered and -flagged vessel with a Norwegian captain. He said care for those rescued at sea was entirely the responsibility of the Australian Government.
Initially the ship’s captain, Arne Rinnan, agreed that he would not bring the vessel into Australian waters if medical assistance for necessitous cases was provided. We told him then, as we had previously, that Australian authorities would be able to provide medical assistance, either through use of an Australian helicopter or, if the ship’s captain preferred, by permitting the lifeboat of the Tampa to pick up medical supplies and assistance from Christmas Island. The lifeboat was an enclosed one and was internationally certified.
The captain then indicated that he would accept the Australian offer. While the Tampa was standing off Christmas Island, Australian authorities conducted distance medical examinations (by radio) and concluded that there was no medical emergency on board requiring evacuation. At that stage no one had presented as a medical emergency.
Suddenly, on the morning of 29 August, the ship’s captain relayed a high-priority medical distress call declaring he would proceed to Christmas Island if medical assistance were not forthcoming by 1500 hours EST. This was completely contrary to both what he had previously said, and the basis of the understanding the Australian authorities thought they had concluded with him.
Captain Rinnan was reminded of the previous advice that there was no basis for a distress call and that, in any event, the authorities were working with all possible speed to get medical supplies and a doctor to the vessel. He was again told that he did not have authority to enter Australian waters.
Despite this, the Tampa shortly afterwards entered the 12-nautical-mile limit of Australian territorial waters. He was then informed that all necessary steps would be taken to maintain the integrity of our borders, including territorial waters.
As a consequence of Captain Rinnan’s action, the Chief of the Defence Force was authorised to order Defence personnel to board and secure the vessel, now in Australian territorial waters. At approximately 12.45 pm EST, on 29 August, the ship was secured by a unit of the Special Air Service (SAS) under the command of Lieutenant Colonel Gus Gilmore.
After the SAS had secured the vessel, Captain Rinnan provided advice which contradicted his earlier explanation for seeking to enter Australian territorial waters. His position now was that he decided to enter Australian territorial waters because a spokesman for the survivors of the Indonesian vessel had indicated that the survivors would begin jumping overboard if medical assistance was not provided quickly.
The preliminary assessment provided by the Australian Defence Force doctor (who, along with a paramedic, had gone on board with the SAS) indicated that nobody had presented as being in need of urgent medical assistance as would require their removal to the Australian mainland or to Christmas Island. Medical examinations of the asylum-seekers on board the Tampa continued.
Later that same day I reported to parliament on what had happened. I emphasised that our advice was that Australia was under no legal obligation to accept responsibility for the survivors of the Indonesian vessel. This was a point I had made in my discussion with the Norwegian Prime Minister, earlier in the day.
The Government’s view was that the Tampa should resume its original voyage for the Indonesian port of Merak. We had put this to both the Norwegian Government as well as the company which owned the vessel. Neither was the least bit helpful. Both imagined that my Government would cave in to the pressure applied by the asylum-seekers through the duress they had brought to bear on Captain Rinnan.
The situation was to turn even more difficult. The Indonesian Government became quite uncooperative. President Megawati declined to take my telephone calls to discuss the matter. It was obvious that, irrespective of international legal niceties, Indonesia saw this as Australia’s problem. The Indonesians were now in no mood to receive the asylum-seekers back.
My critics made much of the fact that President Megawati refused to speak to me. Given the Javanese cultural aversion to confrontation, her refusal to pick up the telephone was hardly surprising. She wanted to avoid saying no. By refusing to take my telephone call, she communicated her position without the embarrassment of a personal conversation.
Speaking to parliament, I said:
This is a very difficult — in fact, for Australia, I think — unprecedented situation. Nobody is lacking in compassion for genuine refugees. Nobody pretends for a moment that the circumstances from which many people flee are not very distressing. But, equally, it has to be said that, in the last 20 years, no country has been more generous to refugees than Australia. After the Indo-Chinese events of the 1970s, this country took, on a per capita basis, more Indo-Chinese refugees than any country on Earth.
We have continued to be a warm, generous recipient of refugees, but we have become increasingly concerned about the increasing flow of people into this country. Every nation has the right to effectively control its borders and to decide who comes here and under what circumstances, and Australia has no intention of surrendering or compromising that right. We have taken this action in furtherance of that view. It remains our very strong determination not to allow this vessel or its occupants, save and except humanitarian circumstances clearly demonstrated, to land in Australia, and we will take whatever action is needed — within the law, of course — to prevent that occurring.
As well as thanking the men of the SAS, I emphasised our position in relation to humanitarian medical assistance. I made it plain that the vessel returning to international waters would in no way affect our willingness, or capacity, to provide whatever humanitarian medical assistance was needed, including the transport of necessitous cases to the mainland or to Christmas Island. The Norwegians were not to be allowed to use medical emergencies as an excuse to remain in Australian waters.
What I said to parliament summarised my attitude on asylum-seeker policy. Although the circumstances of the Tampa had not been foreseen it became, almost immediately, a powerful symbol of our determination to regain control over the flow of people into Australia.
It was apparent after a short period of time that the Australian people strongly backed the stand my Government had taken. My actions on the Tampa were instinctive, driven both by application of international law and the simple principle that every nation has a right to protect its borders and decide who to admit as immigrants or refugees.
Much has been made of the declaration of mine at the Coalition’s policy launch on 28 October 2001 when I said, ‘We’ll decide who comes to this country and the circumstances in which they come.’ It was a spontaneous paraphrase of what I had told parliament. It resonated with Australians because it said directly and simply what they felt.
Some 15 minutes before I made my statement to the house, I had spoken to Kim Beazley, the Opposition leader. His reaction was cautious but supportive. He responded immediately to my statement and endorsed what the Government had done. On reflection, it would not have been credible for him to have done otherwise. He had been a member of the Keating Government which had introduced mandatory detention in 1992. Mandatory detention was part of a broader framework of policies designed to protect our borders from illegal immigration.
Later that day the Attorney General advised me that, for more abundant caution, a special Border Protection Bill should be put through parliament as soon as possible, placing beyond any argument the legal authority of what the Government had done regarding the Tampa. The bill, when enacted, would have express operation from 9 am on 29 August 2001, the morning the Tampa’s captain had called us.
It was framed broadly, sought to have effect notwithstanding any other laws to the contrary, and was not specific to the Tampa. The reason for the bill not being restricted to the Tampa was to ensure
that the legislation would apply to any future situations similar to that of the Tampa. It was this provision which was subsequently used, more than any other, to justify the action of the Labor Party and the Democrats in blocking the legislation in the Senate.
I introduced the Border Protection Bill into parliament on the evening of 29 August, having handed a copy of it to Kim Beazley in my office shortly before dinner. It was obvious when I gave him the bill, plus a quick explanation, that he was uncomfortable. He had to make a decision as to whether or not to back it. His initial reaction was not encouraging.
I do not know what internal Labor Party processes occurred between my handing him a copy of the bill in my office, and his replying to my second-reading speech that evening. The Labor Party, whilst agreeing to urgent debate and therefore a vote on the bill, came down decisively against it.
There had been a dramatic change in Kim Beazley’s rhetoric. In the afternoon he had been in strong bipartisan support, but later that evening he trenchantly attacked not only the substance of the bill but also the motives of the Government. He said that we were trying to use the bill and, therefore, the issue, as a political wedge. He said it was politically motivated. His complaint of substance was that the bill itself had sweeping provisions which could apply to any circumstance.
Beazley displayed poor judgement in his response to this bill. We faced an unprecedented situation. Beazley must have known this. There was mounting public anger about illegal immigration, and very strong support for the Government’s action in relation to the Tampa. Beazley had realised this in giving endorsement earlier in the day.
Yet within the space of a few hours his tone had changed. He reacted in a completely different fashion in his response to the Border Protection Bill. Given that the bill sought to reinforce the legality of what had been done earlier in the day, and given also that Beazley said then that it was completely proper to use the SAS to board the Tampa, his response to the Border Protection Bill was inexplicable.
In the debate he said:
What is going on here is a desperate effort, of a piece with efforts to reintroduce native title, with efforts to do native title legislation, with efforts to again put forward industrial relations legislation, all of it in the last couple of weeks of this parliament, to try to drive wedge politics and to play politics with the lives of Australians. Well, I tell you, Mr Prime Minister: we will not be in it. Whatever particular political advantage you think it gives you, we will not be in it. In the circumstances in which you have apparently made a series of errors, given the advice that has been given to you, we are prepared to consider, if it is necessary, a legislative solution to the Tampa problem in particular. What we are not prepared to consider for one minute is a legislative solution which claims to alter the regime that applies now, entirely on the basis of three hours’ consideration in this parliament this night. This is extraordinary and we will not be going along with it.1
It was a remarkable turnaround. His references to native title and industrial relations represented political hysteria. We had not brought about the Tampa crisis. A week earlier nobody in federal parliament had heard of the Tampa. The issue had come like a bolt from the blue, and the Government had had to deal with it quickly and effectively.
On the face of it, the legislation was far-reaching. What we needed, however, was a piece of legislation that did give us the capacity to deal with a Tampa-type situation again if needed. If in fact, as Beazley had said earlier in the day, our action in relation to the Tampa was completely proper, then surely the opposition could have no valid objection to future action of that kind also being put beyond legal argument.
Clearly Beazley faced internal pressure on the issue. There were many in his party unhappy with the bipartisan support he had given on the Tampa despite the strength of public feeling. As a compensation for this, he decided to oppose the Border Protection Bill. It was typical of how he often ended up in a compromised position. He endeavoured to walk both sides of the street on issues when the Australian people clearly demanded direct, unconditional behaviour from their government. The community felt that Australia was losing control of its immigration policy, and firm action was needed to end this.
In response to Beazley’s objections to the Border Protection Bill, I offered the insertion of a sunset clause of only six months. He rejected this as a compromise, further evidence of the internal pressure being applied to him. The bill passed all stages in the House of Representatives that evening, but was defeated in the Senate.
Almost immediately after the boarding of the Tampa by the SAS, legal action had been commenced by the Victorian Council for Civil Liberties and others seeking orders from the Federal Court that a writ of habeas corpus be issued on the grounds that the asylum-seekers had been unlawfully detained on the Tampa. On 11 September, Mr Justice North decided in favour of the Council for Civil Liberties in relation to the claimed unlawful detention. He ordered that the asylum-seekers be brought to mainland Australia. That is what they had wanted all along.
The Commonwealth appealed against North’s decision. On 17 September the Full Bench of the Federal Court overruled North’s decision and found that the asylum-seekers had not been illegally detained. They would not have to be brought to the mainland.
Fresh legislation then went through parliament, addressing issues left outstanding as a result of the court decision and some other issues related to the boarding of the Tampa. By then they were incidental.
The pressing problem had become what to do with the Tampa asylum-seekers. If they were processed through the normal mandatory detention system, that would involve them coming to the mainland, thus defeating the original purpose of the whole exercise. The Government wanted to deter people from setting out for Australia in the first place and that required sending a message that not even the processing of their refugee claims would occur in Australia. Once it became clear that Indonesia would not take any of them, a search commenced for other destinations.
A nearby location was logical, and Alexander Downer suggested Nauru. The UN would not agree to East Timor. We agreed that Peter Reith should talk to Nauru’s President, Rene Harris, because of earlier contact in a previous portfolio. Reith went there immediately and within a few days had negotiated an agreement to establish an offshore processing facility on Nauru. Thus was born the Pacific Solution.
Meanwhile, Downer had also raised the issue with Simon Murdoch, the New Zealand High Commissioner in Canberra. Murdoch was a highly respected New Zealand bureaucrat who had held all the senior positions. He was likable, intelligent and strongly committed to the Trans-Tasman relationship. He was the most helpful New Zealand interlocutor I came across in my time as Prime Minister.
Murdoch spoke to Helen Clark and, to our considerable relief, she agreed that New Zealand would take 150 of the 434 asylum-seekers. This was quite a breakthrough. I rang Helen Clark to finalise the agreement and expressed my gratitude to her. Here was an example of the pragmatism of our relationship. On one interpretation Helen Clark would have been a fierce critic of what the Australian Government had done. She was an internationalist, and there were no shortage of people denouncing my Government’s actions as being contrary to the spirit of what the United Nations stood for on refugees.
On the other hand, she saw the value of assisting her Anzac partner. It was a gesture from her that I would not forget. It burnished New Zealand’s credentials as a humanitarian country. Also New Zealand, by reasons of geography, was never likely to become a target for people-smuggling.
HMAS Manoora, with appropriate military personnel, undertook the delicate transfer of the asylum-seekers from the Tampa to Nauru. Understandably they strongly, and in some cases violently, resisted being taken off the Tampa. This all occurred in the glare of heavy media coverage, much of which sought to show Australia’s actions in the worst possible light.
Australia’s handling of the Tampa was heavily criticised by the United Nations and human rights organisations.
Despite the international hand-wringing, more careful observers in other countries, facing even more daunting problems with illegal immigration, thought otherwise of our stance.
I repeatedly said that for every asylum-seeker who had their refugee claim accepted, one less person who had waited patiently in a refugee camp could be admitted to Australia. Every one of the 12,000 places allocated annually in our humanitarian program taken by an asylum-seeker validly winning acceptance meant someone else was disappointed. I was not heartless towards the asylum-seekers, but there was a limit to how many refugees Australia could take. My critics gave little thought to the millions of people in refugee camps all around the world hoping their turn would come. Those critics bristled at my use of the term ‘queue-jumper’, but I persisted because it described, simply and accurately, what was at stake.
Deterrence had to be the core of any effective response to the surge of asylum-seekers. It had to be made crystal clear that asylum-seekers would find it hard to reach Australia, so there was no point in trying in the first place. Offshore processing in Nauru as well as Manus in Papua New Guinea was a key component, but it was reinforced by legislation, in September, which gave the minister power by regulation to excise offshore territories from our migration zone. Given the way in which various islands dotted the northern approaches to Australia, this was an effective way of intercepting asylum-seekers before they reached the mainland. Initial excisions were Christmas Island, Ashmore Island, Cartier Islands and then Cocos Islands. Most boat people arrived at these islands and, by reason of the excisions, were deemed to be outside Australia’s refugee protection system. They could be taken to Nauru or Manus for processing.