Australia’s Commitment to Refugees under two International

18 The governments good treatment of the Vietnamese boat people was a golden period of Australias immigration history. 46 In the 1970‟s, Australia displayed its welcoming humanitarian treatment to refugees. Australia had three facilities as immigration detention centers, in Sydney, Perth and Melbourne. 47 The facilities were adequate for basic protection and refugee processing occurred efficiently. This resulted in a change of Australia‟s treatment on refugees after 1992. 48 It was due to the number of boat arrivals increased between November 1989 and January 1992. 49 The „boat people‟ issue then became a serious concern not only in terms of the lack of control over Australia‟s borders, but also of whether the arrivals were „genuine refugees.‟ 50 The anxiety continued and drove Australia to establish „mandatory detention‟ in 1992. 51 In 1993, the Parliament extended the application of mandatory detention to all persons whose arrived without visas or who were in Australia on an expired or cancelled visa. 52 Unfortunately, this Act continues to influence asylum seeker policy until today. The most intriguing „boat people‟ arrival issue was the case of Tampa. It occurred on August 26, 2001, when Indonesian fishing vessel Palapa sunk on its 46 Ibid. 47 Ibid. 48 Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at: http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_LibrarypubsBN2011 -2012BoatArrivals, accessed in the 16 th of 2014. 49 Australia‟s Immigration Detention Policy and Practice. Australia Human Rights Commission. Available at: https:www.humanrights.gov.aupublicationslast-resort-national-inquiry-children-immigration-detention6- australias-immigration, accessed in the 16 th of October 2014 50 Malcolm Frasers Response to Commercial Refugee Voyages. ECU Publications Pre. 2011. Available at: http:ro.ecu.edu.aucgiviewcontent.cgi?article=7219context=ecuworks. Accessed in the 25th of December 2014. 51 Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at: http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_LibrarypubsBN2011 -2012BoatArrivals, accessed in the 16th of 2014. 52 Ibid. 19 way off Christmas Island, Australia. 53 It was then rescued by the Norwegian cargo ship MV Tampa with 433 Afghani asylum seekers found alive. 54 Australia prohibited survivors from accessing Australian territory and requested the Tampa to return survivors to Indonesia. 55 Its action referred to the 1979 International Convention on Maritime, Search and Rescue SAR, of which Australia and Indonesia were signatories. 56 According to the agreement, the area where the Palapa sunk was part of Indonesia‟s Search and Rescue Regions SRR. 57 However Indonesia turned down any obligation to assist the Tampa survivors. Indonesia believed these survivors were not refugees but illegal immigrants. 58 Moreover, on an interview on 30 August 2001 to Australian Broadcasting Corporation, Indonesia‟s Parliamentary Commission on Migration and Security, Yasril Ananta Baharuddin, defended Indonesia‟s stance on Tampa case: 59 „...because these are not refugees and this is not a political asylum according to the international law, Geneva Convention 1951.This is illegal migrant, so basically, economic reason from that point of view, we are under no obligation, international obligation I mean, based on law international and our national legislation. We cannot accept the 53 Australian Border Deaths Database. Monash University Arts. Available at: http:artsonline.monash.edu.authebordercrossingobservatorypublicationsaustralian-border-deaths- database, accessed in the 3 rd of September 2014. 54 Taylor, Savitri. The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at: http:blog.hawaii.eduaplpjfiles201111APLPJ_06.1_taylor.pdf, accessed in the 13 th of June 2014. 55 Tampa Enters Australian Waters with 433 Asylum Seekers on Board on Board. ABC News. 2001. Available at: http:www.abc.net.auarchives80daysstories201201193412121.htm, accessed in the 17th of October 2014. 56 Does Indonesia have to take asylum seekers rescued by the Australian Navy? ABC News. November 22, 2013. Availablet at: http:www.abc.net.aunews2013-11-14asylum-seekers-rescued-at-sea5088168, accessed in the 17th of October 2014. 57 Does Indonesia have to take asylum seekers rescued by the Australian Navy? ABC News. November 22, 2013. Availablet at: http:www.abc.net.aunews2013-11-14asylum-seekers-rescued-at-sea5088168, accessed in the 17th of October 2014. 58 Indonesia defend its stand on the Tampa. Australia Broadcasting Corporation. July, 30 2001. Available at: http:www.abc.net.au7.30content2001s355372.htm, accessed in the 17th of October 2014. 59 Ibid. 20 responsibility because they are not Indonesian citizens. They came from Afghanistan and other countries. ‟ According to the 1982 United Nations Convention on United Nations Convention on the Law of the Sea UNCLOS, ships have an obligation to rescue persons in distress at sea. 60 Yet no clear legal obligations were imposed on any state to take responsibility for ship crash survivors who did not wish to return home. 61 Meanwhile the UNCLOS Article to rescue persons in distress at sea had convinced Arne Rinnan, the Tampa Captain, to rescue the wrecked Palapa. Rinnan even pleaded to Australian authorities to receive the survivors. 22 His act relied on the commitment of Australia to treat boat people according to the International Rules of Sea Rescue, as codified in UNCLOS. 62 Yet more than two hours after his plea, Australian authorities continued to eschew responsibility for the sea rescue operation. 63 The proposal to have Indonesia as the spot of disembarkation was un-agreed upon. In fact, at the end, Indonesia agreed to allow the Tampa survivors to disembark on the Merak port of Indonesia, but unfortunately the survivors rejected it. 64 Australia‟s response delivered a clear message that it would assist the Tampa survivors to disembark on any place but Australia. To confirm it, a policy has been executed by the Australian government, assigning their regional 60 Preambule to the United Nations Convention on the Law of the Sea. Available at: http:www.un.orgdeptslosconvention_agreementstextsunclospart7.htm, accessed in the 4 th of September 2014. 61 The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at: blog.hawaii.eduaplpj...APLPJ_06.1_taylor.pdf, accessed in the 13 th of June 2014. 62 The State of The World‟s Refugees 2006. The UN Refugee Agency. April 2006. Available at: http:www.unhcr.org4444d3c320.html, accessed in the 4 th of September 2014. 63 Ibid. 64 Refugee Ship: Who should take Responsibility? BBC UK. September 4, 2001Available at: http:news.bbc.co.uk2hitalking_point1514960.stm. Accessed in the 13 th of December 2014.