Australia achieved international notoriety through its bold handling of the MV Tampa incident in August 2001 and the subsequent creation of the Pacific Plan, which involved extraterritorial processing of asylum seekers. The Tampa incident and its aftermath is possibly the most vivid illustration in this book of the role of law in developing state refugee policy which is contrary to the spirit of the 1951 Convention relating to the Status of Refugees (Refugee Convention) (if not international law). Effectively, this Plan situated the asylum seekers in a legal limbo outside the Australian legal system and prevented them from seeking asylum in Australia. Importantly, the arrangements for the Plan were achieved through the passage of legislation by compliant legislators. This included a law excising parts of Australian territory from the ‘migration zone’ as defined in the Migration Act 1958 (Cth) (Migration Act).

Through the Pacific Plan, Australia successfully denied the asylum seekers access to the national legal system and outsourced its responsibilities under the Refugee Convention. It will be shown in this chapter that the Pacific Plan was the natural outgrowth of restrictive and deterrent policies to refugees which had developed over the previous decade and which demonstrated the power of the executive to drive a legislative agenda to keep asylum seekers apart from the Australian community.

The first part of this chapter describes the history and development of legal responses to refugees and asylum seekers in Australia (including the legislative framework and the constitutional basis of this jurisdiction).