Chapter 1 - Border Protection: A New Regime
On Sunday 26 August 2001, a 20-metre wooden Indonesian fishing boat with 433 Afghan asylum
seekers on board was in distress in the Indian
Ocean 140 kilometres north of Christmas Island. The boat was within the Indonesian
search and rescue zone, but it was a routine surveillance flight by Coastwatch
which spotted the vessel and so it was the Australian Search and Rescue
(AusSAR) which broadcast a call to ships in the vicinity to render it
assistance. A Norwegian container ship, the MV Tampa, with a crew of 27 and licensed to carry no more than 50
persons, responded to the call.
Guided by Coastwatch, the Tampa’s captain, Arne Rinnan, reached the stricken boat, the Palapa.
He took on board the Palapa’s passengers
and crew and began to head for Indonesia.
A number of those rescued, however, objected to being returned to Indonesia
and threatened to commit suicide if the captain did not take them to Australia.
accordingly changed his course for Christmas
As the Tampa approached Christmas Island on 27 August, however, Australian authorities directed the captain
to keep out of Australian territorial waters and to take his rescued passengers
back to Indonesia. The Prime Minister, Mr Howard, insisted that: ‘I believe that it
is in Australia’s national interest that we draw a line on what is increasingly
becoming an uncontrollable number of illegal arrivals in this country’, and
stated that those rescued by the Tampa
would not be allowed to land in Australia.
What followed was to become
known as ‘the Tampa crisis’.
It was in essence a five day ‘stand off’ between the Australian government and
the captain of the Tampa over where the rescued Afghans were to be taken. The crisis proved
to be the catalyst for a new so-called ‘border protection’ regime in Australia.
This chapter outlines the
response to the Tampa crisis, out of
which grew a new legislative framework for handling unauthorised boat arrivals,
the so-called Pacific Solution, a new framework for whole-of-government
coordination of these issues, and operational strategies of disruption,
interception and deterrence. This regime forms the background to the events and
policies which are the subjects of the Committee’s inquiry.
The Resolution of the Tampa Crisis
From 27 August 2001, Captain Rinnan began to
express concern about the medical condition of some of the asylum seekers on
board his vessel. Intensive
communication on this and other issues ensued over the next two days between
the Tampa, Coastwatch, the Rescue
Coordination Centre (RCC) at AusSAR, the Australian Federal Police (AFP) on
Christmas Island, the Department of Foreign Affairs and Trade (DFAT), the
Department of Defence (particularly Maritime Headquarters), the Royal Flying Doctor
Service, the Indonesian search and rescue authority, the Australian Embassy in
Jakarta, the Departments of Transport and Regional Services (DTRS), the Prime
Minister and Cabinet (PM & C), and Immigration and Multicultural Affairs
(DIMA), and the Joint Rescue Coordination Centre Stavanger in Norway.
At 11.15pm on
Tuesday 28 August, the Royal Flying Doctor Service sent a fax to the AusSAR’s
Rescue Coordination Centre after having just spoken to the master and first
officer of the Tampa. These
officers had advised that there were 438 people on board of whom 15 were
unconscious. Further, there was one sick child, one person with a broken leg,
and a large number of people with open sores and skin infections. The adults
had begun a hunger strike and were suffering abdominal pains and diarrhoea. The
Royal Flying Doctor Service assessed that there was a ‘mass situation medical
crisis and that medical attention was urgently required’.
Overnight and in the early
hours of 29 August, the Tampa sent increasingly insistent calls for medical assistance.
Australian authorities indicated that they were working urgently on the matter,
but they continued to forbid the Tampa to enter Australian waters.
At 11.26am, Captain Rinnan sent a
message to the RCC, saying that he had tried to accommodate the wishes of the
Australian authorities, but that the situation was deteriorating rapidly and
getting out of hand. He advised his intention of proceeding to the nearest
At 11.39am on 29 August 2001, the Tampa entered Australian waters. The RCC sent a message advising the
master that such action was ‘a flagrant breach of Australian law’, and that the
Australian Government was initiating ‘necessary actions to board the vessel
under appropriate legal powers’. Shortly
after 12.35pm, the Tampa was boarded by 45 Australian SAS members. On the same day, the
Prime Minister tabled the Border Protection Bill 2001. Essentially the Bill sought to put beyond
doubt the domestic legal basis for actions taken in relation to foreign ships
within the territorial sea of Australia,
to have retrospective effect from the morning of 29 August 2001. The Bill also sought to confine judicial review of the direction or
enforcement action taken in relation to such vessels.
In the early hours of 30
August, however, the Senate rejected the Bill, with the Opposition
criticising the width of the proposed powers, and contending that it would not
necessarily resolve the legal issues surrounding the Tampa. 
The crisis, generated by the
Government’s rhetorically charged insistence that no asylum seeker aboard the Tampa was to set foot on Australian soil, was finally resolved through
the assistance of neighbouring countries. On 1 September 2001, the Prime Minister announced that agreements had been reached with
the governments of New
Zealand and Nauru for
the people rescued by the Tampa to be conveyed to, and their claims to asylum assessed in, those
two countries. On 2 September, an agreement with Papua New Guinea was announced, allowing for the transshipment of people from the Tampa through Port Moresby, on the Australian troopship HMAS Manoora.
Having achieved an ‘ad hoc’
solution to the Tampa crisis,
the government moved to institute a comprehensive new border protection regime.
A New Regime
The post-Tampa regime for handling ‘unauthorised boat arrivals’ (UBAs) was
developed quickly and ‘on the run’. This was because even before the fate of
those on board the Tampa had been resolved, the government knew of three more boats carrying
up to 900 people that were due in Australian waters at any time.
In general terms, the central
aim of the government’s new regime was identical to the stand taken by the
Prime Minister during the Tampa crisis, that ‘[w]e will not allow these people to land in Australia’. In other words, the government’s new
policy was that it would not allow ‘unauthorised arrivals’ to land on
Australian territory, in a manner uncontrolled by the Australian government,
for the purpose of claiming refugee status. Individuals seeking asylum must be
processed ‘off-shore’, and then decisions about whether to accept them as
refugees to Australia made in the same way as decisions are made in relation to the
claims of those assessed as refugees in camps elsewhere in the world.
The difficulty for the
government in implementing this policy, however, is that, under the 1951 Convention
Relating to the Status of Refugees, Australia’s
protection obligations are engaged when asylum seekers enter Australia’s
jurisdiction by entering its territorial seas.
The Migration Act 1958, and access to
administrative and judicial review opportunities, apply to reception and
processing within Australia’s migration zone.
If the government wished to
ensure that it controlled exactly who it would accept as refugees and when it
would accept them, it needed to make sure that individuals without proper
authorisation could no longer reach Australia’s
migration zone, but without breaching its protection responsibilities under the
In order to prevent ‘unauthorised
arrivals’ from landing on Australian territory, then, the government
implemented a multi-faceted strategy. One facet of the strategy involved
legislation which excised certain islands to the north of Australia
from the ordinary visa application and processing regime under the Migration Act 1958. This meant that, for
example, even if asylum seekers landed on an Australian territory such as Christmas Island or Ashmore
Reef, they did not have the same access to visas as people landing on the
A second facet of the strategy
involved establishing agreements with certain Pacific countries so that
‘offshore entry persons’ could be transferred to those countries and have their
claims to asylum processed there. This part of the new regime is known as the
‘Pacific Solution’. Plans were also subsequently announced for a new processing
centre on Christmas Island, one of the new ‘excised offshore places’.
The new regime also required
much greater interagency coordination between the relevant government bodies,
and for this reason an interdepartmental
committee (IDC) known as the People Smuggling Taskforce (PST) was established
to coordinate the activities of different agencies and to provide
whole-of-government advice to ministers.
in an attempt immediately to reduce the numbers of people travelling to Australia by boat, strategies for both
preventing asylum seekers from leaving Indonesia and strategies for intercepting them
at sea before they reached landfall in Australian territory were implemented.
the remainder of this chapter, the Committee will provide a brief outline of
each of these facets of the new border protection regime. They constitute the framework within which specific issues, such as
SIEV 4 and ‘children overboard’, the sinking of SIEV X and
the Pacific Solution, must be considered.
On 26 September, the second
last sitting day of 2001, the Senate passed the following bills relating to
Amendment (Excision from Migration Zone) Act No.127 2001;
Amendment (Excision from Migration Zone) (Consequential Provisions) Act No.128
Legislation Amendment (Judicial Review) Act No.134 2001;
Legislation Amendment Act (No. 1) No.129 2001;
Legislation Amendment Act (No. 6) No.206 2001; and
Protection (Validation and Enforcement Powers) Act No.126 2001.
The Australian National Audit
Office, as part of its report on the Management
Framework for Preventing Unlawful Entry into Australian Territory, has
summarised the major features of the changes to the legislative framework
surrounding the management of migration and refugee issues since September
2001. They include:
measures to strengthen the deterrence of
unauthorised arrivals. These include a new tiered visa regime for refugees
engaged in ‘secondary movement’, or movement from a country in which they have
or can access protection, but who choose to travel to Australia nevertheless
for reasons which are not ‘Refugees Convention related’. They also include minimum
prison terms for people convicted of people smuggling;
the exclusion of certain territories from
Australia’s migration zone, including Christmas Island, Ashmore and Cartier
Islands, and the Cocos (Keeling) Islands. This means that unauthorised arrivals
to these territories cannot apply for a visa, except by ministerial discretion;
the possible detention and removal from those
territories of unauthorised arrivals to ‘declared countries’ where they have
access to refugee assessment processes modelled on those of the United Nations
Commissioner for Refugees (UNHCR);
a clarification of the circumstances in which
Australia owes a person protection under the Refugees Convention, including
addressing key concepts in the definition of a refugee;
a limit to the grounds for judicial review;
prohibition of class actions in migration
the possibility that adverse inferences may be
drawn when visa applicants fail to provide supporting information, including
documentation, without reasonable explanation.
The Senate referred a further
related Bill, the Migration Legislation Amendment (Further Border Protection
Measures) Bill 2002, to the Senate Legal and Constitutional Affairs References
Committee on 25
The Bill has the effect of expanding the definition of ‘excised offshore
place’ to include the Coral Seas Territory and certain islands that form part of Western Australia,
Queensland and the Northern
Aspects of the legislative
framework for the new border protection regime are discussed in more detail in
the context of the so-called ‘Pacific Solution’, in Chapter 11.
Both Nauru and
Papua New Guinea are declared countries under the newly inserted s198A of the Migration Act 1958, providing the legislative
framework for the establishment of offshore processing centres in those
countries. The agreements reached with Nauru and
Papua New Guinea mark a substantial shift in Australia’s
treatment of asylum seekers. Both countries are hosting processing centres paid
for and operated by Australia, and Nauru is receiving $26.5 million in additional aid monies to do so.
Since the establishment of the
offshore processing centres 1515 people have been transferred to Nauru or
PNG. A breakdown of these numbers by nationality, and an outline of the
agreements reached with Nauru and PNG, is provided in Chapter 10. As of 1 October 2002, 960 persons remained on Nauru,
and 102 on Manus.
Asylum seekers processed on Nauru and
Manus do not have access to the refugee status determination procedures applied
on the Australian mainland. Refugee claims on Nauru may
be processed by either the United Nations High Commissioner for Refugees
(UNHCR), or by Australian immigration officials applying processes stated to be
in accordance with those of the UNHCR. All refugee determinations on Manus are
undertaken by Australian officials. The centres are managed by the
International Organisation for Migration (IOM) under a service agreement with Australia.
The cost of these arrangements is considered in Chapter 11.
As of 17 September 2002, protection claims for all 1,495 people who had sought a refugee
status determination on Manus and Nauru had
received an initial decision. Of
this number 520 people were approved as meeting criteria for refugee status,
and 975 had been refused. Four hundred and thirty two of the successful
claimants were Iraqis, 59 Afghans, and 29 of other nationalities. Initial decisions for Iraqi claimants
were successful in 67% of cases, compared to just over 7% for Afghan claimants.
The only avenue of appeal
against an adverse refugee status determination is to a review of the decision
by a higher level official. As of 17 September 2002, a further 181 people had
been found to meet refugee criteria on review of their previously negative decisions,
bringing the total number of people found to be refugees to 701, including 524
Iraqis, 133 Afghans, and 44 people of other nationalities. Eighty one review
decisions are still pending.
Resettlement of asylum seekers
who are found to meet refugee status criteria is reliant upon a place being
found for them in Australia or another country.
As of October 2002, 200 people
processed on Nauru or Manus had been allowed into Australia,
most on three or five year temporary protection visas. The majority were women
or children with family in Australia.
A further 194 people from Nauru and
Manus had been accepted by New Zealand, and eight refugees had been resettled in Sweden.
central body established to coordinate the government’s post-Tampa border protection regime was an
interdepartmental committee (IDC) known as the People Smuggling Taskforce
PST held its first meeting on Monday 27 August 2001, while the Tampa crisis was yet to be resolved. Between 27 August
and 9 November 2001, the PST met at least 53 times,
sometimes two or three times in a single day.
that period, the PST was chaired by Ms Jane Halton, then Deputy Secretary, Social Policy
Division, PM & C and its membership consisted of (usually) high level
representatives from the following agencies:
Federal Police (AFP);
Maritime Safety Authority (AMSA);
Protective Services (APS);
Quarantine and Inspection Service (AQIS);
Customs Service (ACS);
of Defence and the Australian Defence Force (ADF);
of Foreign Affairs and Trade (DFAT);
of Immigration and Multicultural Affairs (DIMA);
of Transport and Regional Services (DTRS); and
of the Prime Minister and Cabinet (PM & C).
to evidence provided to the Committee by the PST Chair, the primary role of the
body was to provide a forum for information sharing and coordination of
activities among the agencies involved in various facets of the government’s
border protection strategy. The Taskforce also provided advice and policy
options for government.
discussed at PST meetings included the logistics of accommodating and catering
for the humanitarian needs of asylum seekers in both offshore processing
centres and on Christmas, Ashmore and Cocos Islands; the logistics of
transporting intercepted asylum seekers to Nauru, Manus and elsewhere; the time
at which new arrivals were anticipated; and the success of ‘disruption’ and
‘deterrence’ strategies in slowing the rate of new arrivals.
Committee discusses the role and activities of the PST in more detail in
and deterrence activities
Finally, at the operational or
‘sharp end’ of the new border strategy, a twin pronged approach was adopted.
One prong of the strategy is a ‘disruption’ campaign aimed at pre-empting
people smugglers and asylum seekers before
they could organise to leave Indonesia.
Prior to the Committee’s
inquiry, little was known on the public record of the nature, scope and
workings of the disruption strategy. Members of the Committee questioned a
number of agencies, particularly the AFP and DIMIA, on how the strategy is
directed and operates.
The AFP Commissioner, Mr Mick Keelty, defined
the nature and scope of the disruption strategy in the following terms:
By disruption, we mean the use of the Indonesian national police
to divert potential passengers to the International Organisation for Migration
or the interception by the Indonesian national police of passengers prior to
boarding vessels. What would happen ... is that potential passengers are gathered
sometimes in a number of locations and at the last moment they are provided
with details or transport to an embarkation point and they are placed on the
vessels at the embarkation point. Often a disruption activity would be to
prevent the passengers from getting to the point of embarkation or, if we knew
who the people smuggler was, to have the Indonesian national police arrest the
organiser, or in other ways to disrupt the gathering of the people prior to the
Additional activities under the
collecting intelligence to assist both the
disruption campaign within Indonesia and the naval interception of SIEVs
transiting to Australian territory;
targeting key figures in the people smuggling
pipeline with the aim of dismantling the syndicates organising smuggling
information campaigns inside Indonesia,
particularly amongst fishing crews and port areas, warning that people
smuggling is a criminal activity and of the legal penalties in Australia; and
Indonesian authorities apprehending vessels
attempting to depart illegally from Indonesian ports.
The organisational framework involves
the AFP and the Indonesian National Police (INP) as the lead agencies in each
country. On the Australian side, DIMIA, DFAT and AusAID also support the AFP.
Disruption activities were also canvassed at meetings of the People Smuggling
Taskforce during the September to November 2001 period.
In addition to the INP,
Indonesian defence and immigration agencies are also involved in disruption
actions on the ground in Indonesia.
At the bilateral level, the
disruption strategy comes under the auspices of a specific protocol between the
AFP and INP to target people smuggling syndicates operating out of Indonesia.
The Protocol was established on 15 September 2000 and is part of
a broader Memorandum of Understanding (MOU) between the AFP and INP to
cooperate on investigations into transnational crime. That MOU was originally
agreed on 27
October 1995 and renewed on 13 June 2002.
According to the AFP:
The Protocol allowed for the AFP and INP to provide advice
regarding target selection, technical and management support of operations,
informant management, information facilitation and assistance in financial
Under the provisions of the
Protocol, the INP established five Special Intelligence Units dedicated to
people smuggling operations. AFP instructors have trained these units in such
matters as investigation and surveillance techniques. The AFP has also provided
almost A$100,000 to the INP units to defray operational costs such as the INP
informant network, IT and communications equipment, transport, travel and
meals. This was funded from the Law Enforcement Cooperation Program.
The principal point of contact
between the AFP and INP is the AFP Liaison Officers based in Jakarta, who have
the discretion to deal with their Indonesian counterparts on operational
matters. Commissioner Keelty
emphasised to the Committee that the AFP neither directs nor dictates the INP’s
operations against people smuggling. It is only in a position to seek the
cooperation of the Indonesian authorities and to provide advice and assistance.
In terms of outcomes, Commissioner Keelty informed the Committee that ‘since February 2000, the Indonesian
authorities have diverted over 3,000 people suspected of intending to enter Australia
illegally into legitimate migration processes under the auspices of the United
Members of the Committee
questioned the AFP about the Indonesian response to the disruption campaign. Commissioner Keelty advised the Committee that in September 2001 the Indonesian
government suspended the people smuggling protocol, which was not re-adopted
formally until renewal of the MOU in June 2002.
When pressed by Committee
members about the reasons for the suspension, the Commissioner appeared
uncertain, indicating that the Indonesian foreign ministry had concerns that
the disruption activities should come under a ‘more formal
The Commissioner also noted that his counterparts in Indonesia had informed him
of tensions within the INP over resourcing disparities and the extra funding
provided to the Special Intelligence Units, but he stated that these factors
did not, in his opinion, cause the suspension.
The Commissioner further
advised the Committee that despite visiting his counterpart in the INP to discuss
this matter, he was unable to shed any more light on the decisions behind the
Indonesian action. The Commissioner
argued that it was a matter for DFAT to take up with the Indonesian foreign
ministry, and that if the AFP had decided to pursue the issue it would have
gone through DFAT channels, not the AFP-INP connection. The AFP did not pursue
the matter further, even though the Commissioner conceded that ‘we were taken
by surprise a bit, because things were working so well’.
Following the suspension of the
protocol, the AFP experienced a reduction in the level of cooperation from the
INP, with responses to requests for support being dealt with on a case by case
basis and more slowly than previously. The five INP Special Intelligence Units
continued operations but were not dedicated solely to people smuggling, instead
focusing on broader transnational crime issues. However, the AFP maintained that the
spirit of cooperation between both parties continued. In particular, the AFP
pointed to the arrest of an ‘allegedly significant’ people smuggler in Australia
on 5 October
2001 as a notable outcome of the ongoing
cooperation between both police forces.
Members of the Committee were
also concerned to ascertain if the Australian Government had sought legal
advice about the nature of the activities and methods employed under the
disruption strategy. Witnesses from the AFP and DIMIA, as well as the former Chair of the
PST, Ms Jane Halton, stated that no such
advice had been sought or received. In response to a question about whether
legal advice had been sought, Commissioner
No, there is no reason to. Nothing untoward came to our
attention. As far as we are aware and can possibly be aware, the Indonesians
were acting lawfully in Indonesia
and we were acting lawfully in Australia.
The Committee notes that it has
not been able to gather more detailed information on the exact nature of the
disruption measures employed in Indonesia.
Further, it is concerned about the general lack of transparency surrounding
elements of the strategy itself. In particular, the inability of the AFP to
provide clear and precise information about the factors behind the Indonesian
Government suspending the protocol governing the disruption effort compounds
the sense of concern that a key diplomatic partner had cause to abrogate an
element of the bilateral relationship. The Committee finds it perplexing that
neither the AFP nor any other Australian agency took action to get to the
bottom of this matter. The Committee considers that this matter warrants
further investigation and reporting back to the Parliament.
Furthermore, the Committee
notes that since the close of its hearings on the inquiry, more information has
emerged on the public record about the nature of the disruption activity that
occurred in Indonesia. The gravity of that information has raised more questions about
the methods and tactics employed under the auspices of the disruption campaign.
The Committee therefore believes that a full independent inquiry into what
disruption actions did occur prior to refugee vessels departing Indonesia
is required. The focus of such an inquiry should be on the activity that Australia
initiated or was instrumental in setting in motion through both its partners in
the Indonesian government and its own network of informants.
The Committee recommends that a
full independent inquiry into the disruption activity that occurred prior to
the departure from Indonesia of refugee vessels be undertaken, with particular attention to the
activity that Australia initiated or was instrumental in setting in motion through both its
partners in the Indonesian government and its own network of informants.
The second prong of the new
border strategy is a deterrence strategy, implemented by the Navy under the
auspices of Operation Relex. In the next chapter the Committee considers the
detail of Operation Relex.