Summary of Justice North's findings

INTRODUCTION

In accordance with the practice of the Federal Court in some other cases of public interest, North J has prepared this brief statement to accompany the reasons for judgment, delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete.

STATEMENT

1. On 26 August 2001, 433 people were rescued at sea in international waters near Christmas Island and taken on board the MV Tampa.

2. The rescuees were mostly Afghanis. They have sent a letter to the government of Australia saying "you know well about the long time war and its tragic human consequences and You know about the genocide and massacres going on in our country and thousands of us innocent men, women and children were put in public graveyards, and we hope that you understand that keeping view of above mentioned reasons we have no way but to run out of our dear homeland and to seek a peaceful asylum."

3. On Wednesday 29 August Captain Arne Rinnan, the master of the MV Tampa, came to the conclusion that some of the rescuees required urgent medical treatment. He asked for assistance. When none was forthcoming he took the MV Tampa into Australian territorial waters about 4 nautical miles off Christmas Island.

4. Mr Farmer, the Secretary of the Department of Immigration and Multicultural Affairs, was present at a number of government meetings held to deal with the situation. He gave evidence to the Court that the government determined its policy at the highest level. That policy was that responsibility for the rescuees was not with Australia but with Indonesia and Norway.

5. Consequently, the government determined that it would not permit the rescuees to land on Christmas Island.

6. When the MV Tampa came into Australian territorial waters 45 SAS troops were sent out to board the ship.

7. The question of Australia's policy towards refugees is a matter of great current debate in our community. It is important for me to stress that the role of the Court is to determine questions of law which are brought to it. That is what I have done in this case. The written reasons explain how I have come to my conclusions. 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.

8. The Migration Act gives the government very wide powers to detain and remove unlawful non-citizens who are about to enter or who are in Australia. These powers, however, also confer certain rights on detainees.

9. The proceedings were commenced by the Victorian Council for Civil Liberties Incorporated and Mr Eric Vadarlis. The Victorian Council for Civil Liberties Incorporated is an organisation concerned to protect fundamental rights and freedoms. Mr Vadarlis is a solicitor practising in Melbourne who wishes to provide free legal advice to the rescuees on migration matters.

10. The applicants argued that the Migration Act applied to the situation of the rescuees. As a result, the respondents had duties under the Act to detain the rescuees and at the same time to allow them the applicable rights, including the right to apply for protection visas as refugees. The applicants asked the Court to order that the rescuees be brought ashore to the Australian mainland and allow them to make applications for protection visas.

11. For a number of reasons set out in my judgment I do not accept these arguments of the applicants. In one instance, they have not established that the duty under the Migration Act applied to the situation of the rescuees. In other instances the present law means that they do not have a sufficient interest to bring the proceeding. This aspect of the applications must fail.

12. The applicants then argued an alternative basis for their claims. They contended that if the Migration Act did not apply to the situation of the rescuees, then the rescuees were detained without any lawful authority.

13. They contended that no person in Australia, whether a citizen or a non-citizen, can be held in detention without lawful authority.

14. That principle is so well established in Australian law that the respondents did not challenge it. It has a foundation in the law reaching back many hundreds of years.

15. Therefore, the area of debate on this issue was confined. The applicants argued that the rescuees were held in detention by the respondents on board the MV Tampa, and as the respondents had no authority to detain them the court should order that they be released from detention.

16. The respondents argued that the rescuees were not held in detention on the MV Tampa but that they were free to go wherever they wished other than to Australia.

17. I have considered the evidence placed before the Court concerning the situation of the rescuees on the MV Tampa. I have concluded that they were held in detention within the meaning of the law. An extract from my written judgment explains part of the reasoning as follows:

"In my view the evidence of the respondents' actions in the week following 26 August demonstrate that they were committed to retaining control of the fate of the rescuees in all respects. The respondents directed where the MV Tampa was allowed to go and not to go. They procured the closing of the harbour so that the rescuees would be isolated. They did not allow communication with the rescuees. They did not consult with them about the arrangements being made for their physical relocation or future plans. After the arrangements were made the fact was announced to them, apparently not in their native language, but no effort was made to determine whether the rescuees desired to accept the arrangements. The respondents took to themselves the complete control over the bodies and destinies of the rescuees. The extent of the control is underscored by the fact that when the arrangements were made with Nauru, there had been no decision as to who was to process the asylum applications there or under what legal regime they were to be processed. Where complete control over people and their destiny is exercised by others it cannot be said that the opportunity offered by those others is a reasonable escape from the custody in which they were held. The custody simply continues in the form chosen by those detaining the people restrained."

18. The applicants have established that the rescuees were held in detention by the respondents without lawful authority.

19. An ancient power of the Court is to protect people against detention without lawful authority.

20. The orders of the Court will require that the respondents release the rescuees onto the mainland of Australia. Given the practical issues that arise in releasing the rescuees and bringing them to Australia and the agreement reached by the parties, I have allowed a short delay so that the release must be completed by 5.00pm Australian Eastern Standard Time on Friday 14 September 2001, or at the determination of any appeal from my decision to the Full Court of the Federal Court of Australia, whichever is the later.

Melbourne, 11 September 2001

This judgment is available in full text on the internet at the following address: www.fedcourt.gov.au