THE EPISODE OF the refugees on the MV Tampa raised two separate problems, one moral, the other legal. To see both issues in perspective, it is useful to recall the facts that precipitated this unlikely crisis.

The refugees, most of them claiming to be from Afghanistan, embarked on a boat in Indonesia and headed for Australia. It began to sink. The master of the Tampa, quite properly, rescued them. He was about to take them to Indonesia when some of them threatened to commit suicide if they were not taken to Australia. He considered that many were in need of urgent medical help. He sailed towards Christmas Island and radioed for help, but none was given. He was asked to turn away, but considered the risks to life too great. Thus it was that 450 refugees found themselves in Australian territorial waters.

In normal cases, migration officers would have taken the refugees into detention, where they would have a couple of days in which to lodge applications for protection visas. They would be locked up whilst their applications were considered. They would be expelled if they did not qualify as refugees.

The government decided, for reasons unknown, not to deal with this group in the usual way. Instead, it called out the army. Officers of the SAS boarded the Tampa and imposed an effective blackout on communications between the refugees and the rest of the world. They refused to let anyone speak to the refugees. They closed the port at Christmas Island to prevent any other vessels approaching the Tampa. They knew that the master of the Tampa was not prepared to take the ship to sea again with the refugees on board.

Liberty Victoria brought an action challenging the legality of what was being done. It sought a writ of habeas corpus, one of the law's oldest and most powerful weapons against arbitrary detention. A solicitor, Eric Vardalis, also brought a similar action. They were heard together: the trial took place over a weekend. The government's legal argument involved two main propositions: firstly, the refugees were not being detained — they were free to go anywhere they wanted, except Australia; and secondly, the executive arm of government retains an unregulated prerogative right to expel non-citizens from the country without resort to the mechanisms of the Migration Act. The trial judge found that they were detained. That finding was overturned on appeal.

The second argument, which only emerged clearly during the appeal, is the interesting one. When the parliament passed the Migration Act, it gave the executive a power to detain and expel non-citizens. That power must be exercised in the manner provided by the Migration Act: it provides some (minimal) protections to applicants for refugee status.

The two-to-one decision on the appeal was that the executive retains an independent prerogative power to expel non-citizens. It can expel non-citizens summarily, without observing the protections provided by the Migration Act. In short, it can choose whether to afford to refugees the protections of the Migration Act, or simply to expel them.

The ability of the executive government to expel summarily, without regard to the protections contained in the Migration Act, is quite alarming when the moral dimensions of the problem are considered. Before the matter went to court, the government argued publicly that, by letting in these 450, we would encourage 'people smugglers' to bring more and more 'queue jumpers' to Australia. So, we have a government which considers that letting in refugees will encourage more to come, and which has an unregulated power to turn them away.

To say that accepting these refugees would encourage 'people smugglers' has as little logical or moral force as saying that treating disease will encourage people to contract cholera. The fact is that about ninety per cent of refugees who arrive in Australia turn out to have genuine claims to asylum. They do not leave their country of origin as a matter of opportunism, but as a matter of survival.

Under the Migration Act, Australia locks up refugees for years whilst their claims are assessed. Now, having established the existence of the prerogative power, it will presumably turn them away at the gates without considering their claims to asylum. Even if a refugee faces certain death on expulsion, they will have no opportunity to argue their case for asylum: they will just be turned away.

This is the most disturbing aspect of the matter. The government does not welcome refugees. It has the power to decide whether refugees in Australian territorial waters will have the protection of the Migration Act or not. From this day on, refugees will feel even less welcome in Australia than they have before now. Almost certainly, some will die as a result of their claim for asylum being ignored.

Most disturbing of all, this approach — kick them out and dump them on Nauru — has attracted substantial electoral support. This country of twenty million can surely afford to help a few thousands in desperate peril. Much poorer countries than ours receive far greater numbers of refugees than we do. We accepted far greater numbers after World War II, and Australian culture has been enriched by their presence. This is not a case of adjusting voluntary migration in order to balance our demographic development: it is a case of deciding whether to help some of the most miserable and oppressed souls in the world.

Australia used to be a friendly, generous country, one built on the idea of a fair go. When did we become so heartless?