By David Marr and Marian Wilkinson
Sydney Morning Herald
20 October 2001
The call came for Captain Arne Rinnan around midnight. It had already been a hell of a night. Now it was going to get much worse. On the line was an official of Australia's Department of Immigration and Multicultural Affairs issuing him with the warnings given to people smugglers. The captain of the MV Tampa was being threatened with the penalties of the Migration Act unless he turned back to Indonesia. Those penalties include massive fines and the power to seize and sell ships.
For the past 12 hours, Rinnan had been engaged in a rescue operation, working first with Australia and then with Indonesia to take 433 boat people on board his ship. But events during the night had taken a nasty turn that led Rinnan to swing the Tampa around and head for Christmas Island. Until this midnight call from DIMA, the authorities had all been playing it by the book. Communications between the Tampa and Australian officials over the previous hours had been courteous and professional. Suddenly, Canberra was playing a different game.
Australia was threatening the Tampa in the same way coast-watch officers routinely, and fruitlessly, try to halt the hulks used by people smugglers, boats flying no flags and acknowledging no owners. Canberra was acting ahead of its own best advice. Once the lawyers started looking at the problem later in the morning, there was a shift in tactics. But the government did not pull back. Instead, at lunchtime, John Howard emerged from cabinet and announced the human cargo on the Tampa 'will not be given permission to land in Australia or any Australian territories'.
Every aspect of the Tampa crisis was shaped by that declaration. Howard has been as good as his promise. This has made him one of the most popular prime ministers in the recent history of Australia. It helps that the minuses of his strategy are showing up abroad in Nauru, Oslo, New York, Geneva and Jakarta. Back home, it's all been pluses for the campaigning Prime Minister and his government.
The UN's highest official handling the crisis, Assistant High Commissioner for Refugees Soren Jassen-Petersen, told The Age the UN had found countries to take many of those on the Tampa who proved to be refugees, but Australia refused this solution because the asylum seekers would first have to land on Christmas Island. He also said those offers had now all been withdrawn. It is now almost inevitable that many of the Tampa people will end up in Australia.
Seven weeks into the crisis, Australia finds itself in this position: we have deployed the SAS and the navy, conducted a diplomatic quarrel with Norway, been snubbed by Indonesia and been rebuffed both publicly and privately by the UN. We have been the target of press criticism around the world. Tough new migration laws have come into effect that will allow Australia to expel refugee boats.
Across the Pacific, Australia is trying to establish a chain of holding camps. One is operating on Nauru; PNG has approved a second on Manus Island; and negotiations are continuing for camps on Kiribati and Palau. So far, this has cost more than $103 million, with no end to that spending in sight.
Since the Tampa, six more boats have reached Australian waters. One of those boats sat for days at Ashmore Reef.
We still have, by world standards, a small problem with boat people. Norway is expecting this year to take in about 16,000 asylum seekers. Australia was expecting about a quarter of that amount even before Howard sent this dramatic message to the refugee and people-smuggling world. The question is, will anyone take much notice?
'We will do everything we can to defend the integrity of our borders consistent with our international obligations and the behavior of a humane, decent country,' Howard told Sydney radio broadcaster Alan Jones.
'On the one hand, we want to defend our borders, rightly so. On the other hand, we are a decent people; we don't behave in a way that causes people to drown, and to die, we don't shoot people .. . and it's probably because of that that we are seen by many around the world as a soft touch.'
At 1 pm on Sunday, August 26, Australian Search and Rescue (AusSAR) put out a general alert that a wooden ferry was drifting with a large number of passengers in the Indian Ocean, north-west of Christmas Island. AusSAR had been keeping an eye on the boat for nearly 24 hours while trying, unsuccessfully, to alert its Indonesian counterparts to the problem. The stalled boat was in the Indonesian rescue zone.
Rinnan answered the call and as he changed course for the boat AusSAR asked him to coordinate further action with the Indonesians. Rinnan did so, but he was, in fact, guided to the KM Palapa 1 nearly four hours later by an Australian Coastwatch plane.
For AusSAR, the issue on this night was the safety of the people on the Palapa 1 and the crew on the Tampa. But Canberra was in two minds here. It would later be said that the Palapa 1 was closer to Java than Christmas Island. This was not so. Rinnan found the Palapa 1 at a point in the ocean 75 nautical miles from Christmas Island and 246 nautical miles from the Indonesian port of Merak. On board were 433 men, women and children, all but 10 of them identified as Afghans. This was undoubtedly a people- smuggling operation.
After two hours, with the empty Palapa 1 breaking up in the swell, the Tampa set off for Merak where permission to land these people had been given by the Indonesia Search and Rescue Authority.
The Tampa expected the voyage to take 30 hours but after only about 90 minutes there was an alarming incident on the bridge. A group of men confronted Rinnan. A few hours later, Rinnan's lawyer told DIMA, they described themselves as 'desperate people from a dangerous background and that they required him to take them to Christmas Island and made it clear to him that there would be dire consequences for safety of ship, crew and passengers if he did not. He felt threatened'.
Rinnan had on board his ship 355 men over the age of 16. They outnumbered his crew 13 to one and were threatening violence. Rinnan contacted AusSAR and spoke to the senior marine search officer on duty that night in Canberra. AusSAR has confirmed that Rinnan was told the decision on what to do was his as master of the ship. Rinnan said he would head for the closest safe port, Christmas Island.
AusSAR is reported to have advised him to hold a position offshore once he arrived in the morning and await customs officers. Sometime after 9.40pm, Rinnan turned the Tampa towards Australian waters.
That night, radio and newspapers had wind of the story and were checking details with Coastwatch and AusSAR. July and August had been a bad time for the government on the immigration front but there had never before been a story quite like this: hundreds of boat people were being taken away from Australia when they demanded to be delivered to Christmas Island and the captain of the Norwegian freighter was complying. The government was going to look as if it had lost control of illegal immigration.
Night after night in the weeks leading up to the Tampa crisis, an ashen- faced Philip Ruddock had been appearing on television to explain mass breakouts, suicides and nervous breakdowns in detention centres, the presence of a catatonic boy at Villawood and mass hunger strikes at Curtin. Howard was calling on the Senate to pass legislation to limit even further the access of asylum seekers to the courts. The annual boat-people season was under way and to prepare for their arrival Ruddock had announced new detention centres. Christmas Island was bursting: there would be 1000 asylum seekers there once those on the deck of the Tampa landed.
At some point after 9.40pm on the night of August 26, someone in the Federal Government decided the MV Tampa was to be turned back to Indonesia by threatening the master with the full weight of the Migration Act. The Tampa was not to be thanked for rescuing the human cargo on the Palapa 1 but accused of facilitating the asylum seekers' illegal voyage. Australia was taking the view that the Tampa was not on a search and rescue mission but conducting a people smuggling operation.
The Migration Act doesn't use that colorful language. It talks about bringing 'non-citizens' into Australia without visas. The master of a vessel that brings them in is liable to a fine of $10,000. Anyone who facilitates the arrival of groups of five or more, and is 'reckless as to whether the people had, or have, a lawful right to come to Australia', can be imprisoned for 20 years and fined $220,000.
Once the illegal passengers are taken into custody, the shipping line has to pay for transporting, maintaining, detaining and deporting them. If necessary, the government could get that money by seizing and selling the Tampa.
Who made the decision to tell the Tampa to turn around remains a mystery. Canberra knew what was going on out in the Indian Ocean because AusSAR, Customs and Ruddock's immigration department were monitoring the situation all through the night of August 26/27. Ruddock has told The Age no minister was involved, but he is vague about the level it came from in his department. He states it was 'operational' but perhaps came from higher up the line.
But when Neville Nixon of DIMA's Sydney office picked up the phone about midnight, he was ringing to threaten the captain of a 45,000-tonne ship flying the flag of a great maritime power. That captain had just conducted a difficult rescue operation at Australia's request and now, feeling threatened by the presence of hundreds of hostile men on his ship, was heading for the closest port, Christmas Island.
The phlegmatic Rinnan kept sailing and contacted the Wallenius Wilhelmsen Line. It was mid-afternoon on Sunday in Norway but the line moved swiftly. They contacted the Tampa's insurers who alerted their Sydney representative, James Neill, a solicitor employed by Aus Ship P&I in the northern beaches suburb of Newport. He dealt with the crisis from bed. By 2am he was on the phone to Nixon. The Tampa kept on course for Christmas Island.
The Norwegians were not familiar with Australia's Migration Act.
As the Tampa sailed towards Australian waters, Rinnan, backed by the Wallenius Wilhelmsen Line, was operating under the fundamental principle that it was for him as master of the ship to decide where, in this emergency situation, it was best to bring these people to land. The lawyers were already drafting a fax along these lines for Neville Nixon at DIMA: 'His view was that by far the safest course was to continue to Christmas Island.'
The approach of Rinnan, the shipping line and their lawyers was exactly the same as that taken earlier in the night by AusSAR: it was for Rinnan to decide.
Canberra scrambled before breakfast. If the decision to threaten the Tampa really was made by low-level DIMA bureau crats, it didn't stay with them long. Before 9am, the Prime Minister had convened a meeting of the National Security Com mittee of cabinet. Officials were meeting elsewhere. In the chair was the secretary to the Prime Minister's Department, Max Moore- Wilton. Their brief, in the words of DIMA chief executive officer Bill Farmer, 'was to prepare some very quick oral advice to ministers'.
The Tampa was 17 nautical miles from Christmas Island and only five nautical miles from Australian territorial waters. While the committees were meeting in Canberra, the boat was buzzed by a Coastwatch Dash-8, which radioed Rinnan not to enter Australian waters but turn around and take the people to Merak. He kept going. Moore- Wilton ordered another call be made to Rinnan. According to documents that emerged in the court case before Justice North, Neville Nixon told the Tampa's master 'the Australian Government at the highest level formally requests that you not approach Christmas Island'.
Rinnan stopped the ship and agreed to hold his position just outside Australia's territorial waters.
Cabinet was now meeting. At some point in the morning, the cabinet office directed Bill Taylor, the administrator of Christmas Island, to close the port at Flying Fish Cove 'to ensure that boats from Christmas Island did not attempt to reach the MV Tampa.'
The port was to remain closed for eight days. At noon on August 27, Howard emerged from cabinet to face a press scrum. The nub of what he had to say was this: the Tampa 'will not be given permission to land in Australia or any Australian territories'.
The ground rule was: they shall not land. But the strategy was already being undermined. Indonesia was turning its back on Australia. Norway was preparing a case to argue to the world that Australia was violating the conventions that safeguard lives on the high seas.
At his 1pm press conference, Howard told journalists Australia was offering Indonesia 'financial assistance' to take the Tampa people back. This was the first payment Australia offered one of its neighbors to help solve the problem. Not the last.
In Jakarta, officials were insisting the boat people should go back to where they'd set out from; Indonesia's view was that they'd already arrived in Australia. That view never changed. Both Australia and Norway knew by the end of that first day, Monday, August 27, that it was likely the Tampa would have nowhere to land the asylum seekers if Australia didn't take them on Christmas Island.
Indonesia proved no more co-operative when Downer called on the ambassador on Tuesday morning.
The next day the Tampa crisis reached flashpoint. The men, women and children on the Tampa were now facing not an overnight trip to Merak, but a long voyage. The Tampa was still lying just outside Australian waters, in sight of Christmas Island. What Rinnan wanted most from the island was a doctor. He asked time and again in the first 36 hours after he anchored off the island.
Promises were made by Howard and Ruddock in parliament, in press conferences and in radio interviews that the doctor would be sent. He never was. How sick were the asylum seekers on the Tampa? For both Australia and Norway, this was an important legal question. Illness on board gave Rinnan, in international law, a far stronger case for crossing the line and entering Australian territorial waters. It was even a defence to minor people smuggling charges under the Migration Act. But the legal usefulness of having sick people on board raised strong political doubts when the shipping line's solicitor, James Neill, told DIMA after the Tampa arrived off Christmas Island.
'The medical situation on board is critical. If it is not addressed immediately people will die shortly.'
Sources in Oslo have now told The Age the crew of the Tampa were in regular telephone contact with the Haukeland Hospital in Bergen, which specialises in rescue emergencies. The Norwegian doctors were most concerned about cases of dehydration on the Tampa and the predicament of a pregnant woman in pain whom the male crew could not examine. From Bergen, the doctors directed, as best they could, treatment using the basic medical supplies on board. They also instructed the chief officer how to check for faked symptoms. The crew reported to Oslo that things were going from bad to worse.
In a further fax late on the Monday, the shipping line's lawyer wrote at the top of a list of issues requiring resolution: 'Health - avoidance of fatalities over the next 24-48 hours. Immediate relief is required in relation to food, medical supplies and shelter from the sun. Longer term in relation to chronic diarrhoea, dehydration, sanitation and shelter from the elements, cooking.' The following morning, Tampa issued a medical distress signal. 'I don't think we can handle this situation any longer. Fifteen people have already lost consciousness and three of them no longer react to outside stimuli.'
All that day, medical help failed to appear from the island. That night about 9pm, the Tampa issued a 'pan-pan' emergency call. This is a high- priority call at sea, second only in urgency to a mayday. Canberra considered this for a few hours and about midnight made a bizarre offer to Rinnan: if an empty lifeboat were sent in to Flying Fish Cove, it would be filled with medical supplies and sent back to the Tampa. But there would be no doctor. Rinnan rejected the offer.
Why this refusal to send a doctor? Again the explanation may be legal. The problem with having a civilian doctor moving back and forth to the ship was that he could bring home an appeal from one of his patients for refugee status. That would trigger the operation of the Migration Act. One person, at least, would have to be brought on shore - and the rule of this operation was None Shall Land.
That appears also to be the reason that there was no more talk of Rinnan being a people smuggler. That charge would compel officials to bring on shore all the people he was accused of trying to spirit into the country. Diplomatic notes had been passing between Norway and Australia for two days before Downer and his counterpart, Thorbjoern Jagland, finally spoke at 1.30am on the Wednesday morning. Jagland insisted the Tampa be allowed to approach the island. 'People are dying on board.'
Downer reiterated Australia's position that the Tampa's passengers would not land. Both men were resolute. Later that morning, about 9.30am, they spoke again. By this time, Downer must have known from his people in the Australian embassy in Jakarta that Indonesia was absolutely refusing to take the Tampa people back. Yet Downer continued to insist to Jagland that the Tampa could not enter Australian waters. Lawyers in Oslo and in Canberra had been hard at work shoring up the positions of their governments. Australia's core contention was that nations have a fundamental right to close their territorial seas to protect their security. Norway's counterclaim was that Australia's security was not at stake: at issue here were the international rules of sea rescue. The Tampa had carried out a rescue at Australia's direction in accordance with Article 98 of the UN Convention on the Law of the Sea and was now a vessel in distress, which Australia was obliged to assist under the Safety of Life at Sea Convention.
Downer's response was to threaten 'appropriate action' if the ship entered Australian waters. He had, in fact, been sent to make this call from a meeting in Howard's office at which Admiral Chris Barrie, head of Australia's armed forces, was present with Moore-Wilton.
'Appropriate action' was code for military intervention. It was a grave step. Australia was ready. SAS troops had arrived the day before on Christmas Island. They could secure the boat. Norway was not deterred. A little after 11.30am, Rinnan informed the Flying Fish Cove harbor master he was entering Australian waters. 'It is the only way we can see to get medical supplies on board.' Howard was told immediately. He rang the Norwegian Prime Minister but failed to persuade Jens Stoltenberg that the Tampa should, even now, head for Indonesia.
At noon, Lieutenant Gus Gilmore, the officer in charge of the SAS regiment, was ordered to board and secure the ship. He did this with 45 troops by 2pm. Norwegian officials have told The Age they cannot recall in recent memory a similar incident involving one of their ships. Jagland reported the armed occupation of the Tampa to the International Shipping Organisation and the UN. Australia's strategy to this point had the full approval of the Labor Party.
But later that afternoon, Labor baulked at Howard's Border Protection Bill. The bill did not enhance Australia's protection under international law. It didn't remove this country's name from any of the many conventions on the law of the sea to which Australia is a party. But the bill would allow the government to tow the Tampa out to sea and keep it there without the Wallenius Wilhelmsen Line having any recourse in the Australian courts.
This was, in fact, the second and essential arm of the military solution the Howard Government had chosen to pursue that morning: first the boat would be occupied by the SAS and then forced out to sea. It was not the fate of the 433 people crammed on its decks, nor the difficult position of the crew, nor the fact that by this time the Tampa had nowhere to sail to that stiffened the resolve of the opposition. Labor objected to the way the legislation would exempt the Commonwealth officials involved in the operation against the Tampa from all legal liability.
Howard was not perturbed. 'The law is often an unpredictable thing,' he told parliament. 'It is in the national interest that the courts of Australia do not have the right to overturn some thing that rightly belongs to the determination of the Australian people, as expressed through their representatives in parliament.' Nothing said or written about the Tampa crisis so perfectly captures the mood of the time: the law must not stand in the way when action is mandated by the popular will.
And Howard's actions were popular. But in the early hours of August 30, Labor rejected the Border Protection Bill and the government had the Tampa on its hands. The SAS was on board but the legislative power to send the ship away never arrived. Rinnan was refusing to budge. Meanwhile, a doctor was at last treating the sick. There were ill people on the Tampa, but the SAS doctor believed none was so ill they needed to be brought ashore.
Howard had succeeded in this at least: after all the turmoil of the past three days, and at extraordinary cost, not one of the people rescued by the Tampa had set foot on Australia.