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The Forum > Article Comments > Was it legal? The Howard Government’s handling of MV Tampa > Comments

Was it legal? The Howard Government’s handling of MV Tampa : Comments

By Binoy Kampmark, published 15/1/2002

Binoy Kampmark argues that Australia had no legal right to refuse to process the asylum seekers on the MV Tampa

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As a “CONSTITUTIONALIST” I do wish to point out that the case before the Federal Court was badly handled.

The first issue is that under International law , since the sinking of the Titanic two boards of inquiry made known that one must come to the aid of people at the perils of the sea. This the Tampa did.

I understand that the Tampa was in fact requested by the Australian Government to assist in the rescue of the people. As it did.

I understand that the captain had the right to take the people rescued to the nearest port.

Regardless what the High Court of Australia may have ruled, no part of the Commonwealth can be excluded from the immigration zone. Either the legislation applies to the whole of the Commonwealth of Australia or not at all!

At the time of Federation the Troy case decided by the Privy Council was very much debated and the Commonwealth of Australia therefore was given the constitutional powers to deny any alien from entering the Commonwealth of Australia. However, where the Commonwealth of Australia participated in a treaty regarding refugees, then it cannot refuse entry of any refugee (as many applied to be accepted as refugees).

Refugees are not illegal, they are refugees unless the Commonwealth of Australia has determined otherwise and this decision has been enforced by a judicial decision of a State Court. The High Court of Australia has judges who have a lack of competence in certain constitutional issues and rely upon purported federal laws that are unconstitutional and so ULTRA VIRES.

The moment the Commonwealth of Australia took charge of the people of the Tampa, then by Section 120 of the Constitution they were to be handed over to a State to be dealt with according to State legal processes, if they were charged with a Commonwealth offence. If not then they could not be held in detention at all.

There-is-a-lot-more-to-it, see-also-my-blog-at and my website at

In my view, the people rescued were entitled to the application of Australian law, including immigration laws!
Posted by Mr Gerrit H Schorel-Hlavka, Thursday, 26 July 2007 2:26:04 AM
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