|
|
|
|
|
Tampa
|
|
|
This paper attempts to explore the judgements and issues arising from the Tampa affair that took place in September 2001. The Government’s decision to deny entry of the MV Tampa into Australian territory raised several debated concerns both nationally and internationally. Despite the Government’s constant re-iteration of the concept of the protection of national sovereignty, these constitutional issues argued in the Federal Court, primarily concerned the legality of the steps the government took in dealing with the situation. The two main issues in dispute were: what is the scope of the executive’s power to exclude, expel, and detain ‘aliens’? And if so, has such power been abrogated by legislation? In looking at the role of prerogatives and analysing the Federal Court’s decision, we will be able to answer these questions, and establish why there was a division amongst the court on these issues. In response to a request by the Australian Coast Guard, a Norwegian carrier ship, the MV Tampa rescued 433 from a sinking fishing boat. After mounting concerns that the rescuees were ill, the rescuees were taken to Nauru and New Zealand after they were denied entry into Australian territory. This was to initially determine whether the rescuees would be entitled to protection as refugees, despite that the Migration Act 1958 (Cth) could regulate the “entry, presence, departure and deportation of non-citizens.” The Act also permitted and empowered officers to board and search ships and also conferred on the Government powers to detain and remove unlawful citizens . The argument presented by the Victorian Council for Civil Liberties (VCCL) in the initial hearing heard by North J, was that the rescuees were unlawfully detained and sought relief on the grounds of habeas corpus to release the rescuees from detention. The VCCL argued that the Governments acts resulted in a total restraint on the freedom of the rescuees as they were detained on board the vessel . In the initial hearing North J concluded that the Migration Act was intended to regulate the whole area of removal of aliens, and leaves no exercise of any prerogative power on the subject . However, the judgement was over turned on appeal after the immediate subsequent passing of the Border Protection Act (Validation and Enforcement Powers) Act 2001 (Cth). Role of Prerogatives Prerogative powers are the common law powers of the Crown ultimately derived from the Queen. They are fundamental for Australia to function as a sovereign nation with the Commonwealth inheriting all the prerogatives powers of the Queen: Davis v Commonwealth. The role of prerogatives is to allow the executive to make decisions which are in the nation’s best interest without any statutory authority. S61 of the Constitution provides the executive with this discretionary power: “The executive power of the Commonwealth is vested on the Queen and is exercisable by the Governor-general as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth.” However, the scope of the Executive’s power is not exhaustive and the Executive must function within the powers conferred to it by the Constitution. In addition, the Executive is further limited as Parliament can limit or extinguish prerogative power by statute. The Executive’s Scope and Power of the Prerogative to Exclude, Expel and Detain Unlawful Non-Citizens In the initial hearing heard in the Federal Court, North J presiding alone held that the prerogative powers did not extend to the detainment and expulsion of non-citizens. His honour considered matter by way of habeas corpus, stressing the need for statutory authority as the basis for any detention if any right to habeas corpus is to be abrogated. In addition, his honour examined the lack of historical evidence as did Barton J in Robtelmes v Brenan: “There are dicta of Blackstone and Chitty to the effect that the Crown by its prerogative can expel even alien friends; but there does not seem to have been any attempt since the revolution to exercise such prerogative, and the extrusion of alien friends has since then always been effected by statutory authority.” In concluding his finding, his honour found that the exclusion, expulsion and detainment of unlawful non-citizens was not a legitimate exercise of the prerogative.
|
|
|
|
Still Can't Find What Your Looking For? Then Try a Essay Search!
|
