The Commonwealth Parliament of Australia – Government Paper

The Commonwealth Parliament of Australia – Government Paper
The Commonwealth Parliament, the Australian Executive government and courts each played a role in the resolution of the Tampa crisis. The actions of these institutions will be discussed and then examined further in relation to the separation of powers doctrine; it will be argued that whereas the Parliament and courts acted within their powers, the Executive Government did not.

The government needed to change the existing refugee policy quickly to enforce John Howard’s decision to ‘draw a line on…an uncontrollable number of illegal arrivals’, by using executive action and attempting to pass legislation through Parliament. On the 29th August 2001, Howard tabled the retrospective Border Protection Bill 2001, aiming to put beyond doubt the domestic legal basis for actions taken regarding foreign ships within Australia’s territorial waters and to limit judicial review of action taken regarding such vessels. The Senate rejected this Bill.

The Executive responded to the Tampa situation in an unprecedented manner by preventing the vessel from entering Australia’s territorial waters through the use of military forces. This arm played a crucial role in the resolution of the crisis: as the Border Protection Bill 2001 was rejected, the Executive was forced to look to other means in order to resolve the situation. On the 1st September 2001, Howard announced that agreements had been reached for the rescuees to have their asylum claims processed in Nauru and New Zealand: the crisis was resolved through the help of these nations, and this was known as the Pacific Solution, initiated by the Executive. Processing centres where ‘offshore entry persons’ could be transferred to in order to have their claims processed were established at Papua New Guinea, Nauru and also on Christmas Island. Also implemented was legislation which excised Christmas Island and Ashmore Reef from the ordinary visa application and processing regime under the Migration Act 1958, such that individuals arriving on these islands did not have the same access to visas as those arriving on the Australian mainland, thereby strengthening deterrence against unauthorised arrivals.

In Minister for Immigration and Multicultural Affairs & Ors v Eric Vadarlis, the Full Federal Court overruled the initial decision that rescuees be brought to the Australian mainland, which had been made on the basis that the Commonwealth had detained the individuals without lawful authority. However, Justices Beaumont and French reasoned that the Commonwealth had in fact acted within its executive power; the court also took into account the urgent nature of the case, announcing the decision in advance of the publication of reasons. Vadarlis sought special leave to appeal in the High Court; although the importance of the claim was acknowledged, it was rejected as the matter had become a hypothetical due to the enactment of the Pacific Solution. The courts’ role in the resolution of the Tampa crisis would have been more significant had this not occurred, and will be discussed further in relation to the separation of powers doctrine.

The separation of powers doctrine divides power within a single level of government, allocating legislative, executive and judicial power to corresponding institutions of government. Thus, the legislative function (i.e. the Parliament’s function) is to make new law, and alter or repeal existing law; the Executive’s function is the carrying on of government according to law, including the framing of policy; as well as the supervision of defence. Thirdly, the judicial function regards the interpretation of the law and its application to cases. The roles of these institutions in the Tampa crisis will be assessed with respect to this definition of separation of powers, as it is readily applicable and relevant in a modern Australian context.

The Executive potentially prevented the effective exercise of the Parliament’s powers during the Tampa crisis by applying political pressure upon the Parliament to pass new legislation in order to prevent the rescuees from having their asylum claims processed on the Australian mainland. The courts, however, did not affect the Parliament’s exercise of their powers: the courts were deciding cases pertaining to the actions of the Executive only (to be discussed).

The actions of the Federal Parliament during the Tampa crisis potentially prevented the effective exercise of the Executive’s power to administer laws and carry out government business: Parliament rejected Howard’s Border Protection Bill 2001 (which was an attempt to legislatively validate the Executive’s actions) thereby limiting the Executive’s power which essentially depends on legislation: the Executive did not have the power to legally expel illegal immigrants from Australia’s borders. Despite this, the Executive continued to resolve the crisis in a manner appropriate to the government’s new assertive stance by initiating the Pacific Solution; and formally changed the policy later with the new border protection regime.

The actions of the Executive were examined in the aforementioned cases, which were a challenge to the Executive and its actions during the Tampa crisis, potentially preventing the exercise of their powers. At appeal, Justices Beaumont and French in the Full Court of the Federal Court reasoned that the Executive’s actions were within its powers given s.61 of the Constitution and the fact that the Executive has the power to promote national interests, even without a legislative basis. (Although it will not be discussed here, the ambiguity of s.61 must be acknowledged: the Commonwealth Constitution does not define ‘executive power’, such that its interpretation requires other assumptions.) On the other hand, Justice Black dissented, arguing that there is no executive power to expel individuals in peacetime and further, executive power existing within legislation overrides any powers existing outside legislation.

Having considered this, I submit that although the Executive government effectively resolved the crisis, their actions were inconsistent with the requirements of the separation of powers doctrine. The definition I have based my argument upon states that the Executive’s role is to ‘administer government according to law’: the Migration Act 1958 specifies that once asylum seekers enter the Migration Act Zone, they must be taken into detention. The actions of the Executive were outside of this existing legislation and were, therefore, inconsistent with the separation of powers doctrine. In this case, policy was being changed and created ‘on the run’, as opposed to through the legislative powers of Parliament.

It could be argued that the Executive simply took a formalistic reading of the 1951 Convention Relating to the Status of Refugees, thus providing a legal and justified basis for their actions (i.e. using the military to prevent the Tampa from entering Australia’s territorial borders), but it must be emphasised that the Executive continued to refuse entry when the individuals were within Australia’s borders; they did this with no legal basis but in defiance of existing legislation.

The actions of the Executive also prevented the courts’ exercise of their power to determine disputes: as the rescuees had been moved to either Nauru or New Zealand, pursuant to the Pacific Solution, the dispute in the High Court was hypothetical and not ‘constitutionally cognisable in a court exercising the judicial power of the Commonwealth.’ Furthermore, the courts were affected by the Parliament’s and Executive’s changes in the legislative framework, namely the limitations to the grounds for judicial review, passed on the 26th September 2001.

Although the courts’ interpretation and application of law were consistent with the separation of powers doctrine, these changes to legislation were not. Judicial review is a crucial concept in the separation of powers doctrine, given that limits are placed on the exercise of governmental power, and the importance of ensuring that this power is controlled. Further, the separation of judicial power serves to review executive action. However, the enforcement procedures in the new border protection scheme effectively removed all judicial review of decisions regarding immigration matters, except for the limited jurisdiction of the High Court.

Although the Tampa crisis was effectively resolved, I believe that the actions of the courts were consistent with the requirements of the separation of powers doctrine in Australia whereas the actions of the Executive were not, given its defiance of existing legislation. Further, Parliament’s and the Executive’s changes to legislation were also inconsistent with important concepts underlying the separation of powers doctrine: judicial review and limitation of power.