The 2001 federal election was shaped by the maritime rescue of 438 people by a cargo vessel, the MV Tampa. When the ship’s captain, Arne Rinnan, attempted to take the rescuees to Christmas Island, the Howard government responded by closing the port, an action whose validity under domestic law was upheld by the Full Court of the Federal Court (including then Justice Robert French).

This week, two aspects of the Tampa affair’s aftermath reached the High Court. Today, French CJ heard a preliminary hearing on the validity of the PNG solution, a descendant of the Pacific solution, which started when the Australian government arranged for the 438 mainly Afghan asylum seekers rescued by the Tampa to be sent to Nauru for processing. And two days ago, on the twelfth anniversary of the asylum seekers’ removal from the Tampa, the full Court heard argument on the constitutional validity of mandatory minimum sentence provisions for people smugglers, laws enacted just weeks after the incident.

Interestingly, Neil Williams SC used the Tampa incident itself to illustrate the breadth of conduct that could be subject a mandatory sentence of five years imprisonment:

[T]hose points are in a sense illustrated by the facts concerning a person who is — perhaps Australia’s best-known example of conduct falling within this — Captain Rinnan of the MV Tampa — … if he were to repeat the conduct under the legislation in its current form — that he was acting pursuant to a duty under the international law of the sea and at the request of the government when he picked up the non-citizens would not of itself provide an offence [sic defence]. It is possible he may have a defence of sudden or extraordinary emergency, but the fact that he initially set course for Indonesia after picking them up may well take him outside the provision in 10.3 of the Criminal Code. It is not productive to debate the details of that particular case, but the example is sufficient to demonstrate the extraordinary range of circumstances in which a person might find themselves liable to conviction and the mandatory minimum terms that ensue.

The question of whether a maritime emergency can trigger a necessity defence was famously addressed by Canada’s top court in 1984, in a case concerning an Alaska-bound marijuana smuggling operation forced by a storm to land on Vancouver Island.

As several judges observed at Tuesday’s hearing, Williams’s core argument may invite the Court to make a political judgment about the proportionality of the Australian parliament’s response to the problem of people smuggling. If they choose to enter those dangerous waters, the judges will presumably opt to steer well clear of the Tampa.