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12 Pac. Rim L. & Pol'y J. 49 (2003)
In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows

handle is hein.journals/pacrimlp12 and id is 61 raw text is: Copyright C 2003 Pacific Rim Law & Policy Journal Association

IN THE WAKE OF THE TAMPA: CONFLICTING VISIONS
OF INTERNATIONAL REFUGEE LAW IN THE
MANAGEMENT OF REFUGEE FLOWS
Mary Crockt
Abstract:  The Australian Government's decision in August 2001 to close its
doors to a maritime Good Samaritan, Norwegian Captain Rinnan, his crew, and 433
Afghan and Iraqi rescuees, provided a curious contrast to the image of humanity,
generosity, and openness that Australia tried so hard to foster during the 2000 Olympic
Games in Sydney. Victims or villains according to how the facts and the law are
characterized, the MI/V Tampa rescuers represented for lawyers the intersection of a
variety of areas of law and a clash of legal principles. The ambiguities in both
international and state law pertaining to asylum seekers and refugees give rise to
questions of state responsibility.
The stand taken by Australia set a precedent that, if followed by other refugee
receiving countries, could only worsen the already deplorable problems facing asylum
seekers in the world today. The immediate Australian response to the Tampa Affair was
a rash of legislative amendments to Australia's 1958 Migration Act that stifled appeals to
federal.courts and granted officers a broad range of power over rescuers within and
outside of Australia's territorial jurisdiction.  Australia has also responded with
Operation Relex and the Pacific Solution which have not only been inadequate to
address the needs of the rescuers, but have arguably violated both state and international
law. The conflicting interpretations of the law-both domestic and international-that
have emerged in the wake of the Tampa may be testament to the inadequacies of the legal
framework for the protection of refugees.
I.      POINTS OF DEPARTURE
The decision by the Australian Government to close its doors to sea-
borne asylum seekers, or boat people, in August 2001 took many people
by surprise.' Perhaps it was the nature of the incident that led to the
t B.A. (Hons.) L.L.B. (Hos.) Ph.D. (Melb.), Senior Lecturer in Law, University of Sydney; Chair,
Nationality and Residence Committee, International Law Section, Law Council of Australia. This Article
is based on various lectures and seminars Professor Crock has delivered on the subject of the Tampa
Incident, but was prepared first and foremost for the Symposium held at the University of Washington,
Seattle, Australia's Tampa Incident: The Convergence of International Domestic and Refugee and
Maritime Law in the Pacific Rim, in April 2002. Mary Crock also authored a second article on the Tampa
Incident, entitled Mary Crock, Durable Solutions or Politics of Misery? Refugee Protection in Australia
After the Tampa, in FENCED IN: BORDER PROTECTION, ASYLUM AND DETENTION IN AUSTRALIA (Michael
Darcy ed., forthcoming). Thanks are due to Edwin Abuya, Ben Saul, and Ed Santow for research
assistance, and to the following people who provided commentary on drafts of this paper: Guy Goodwin-
Gill, Don Rothwell, Penelope Mathew, Michael Head, Veronica Taylor, Jessica E. Tauman, Ron
McCallum, Ellen Hansen and Marissa Bandharangshi. Any errors that remain and opinions expressed are
the author's own.
Donald Rothwell provides the following account of the events that began the Tampa Affair:

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