By Maria O’Sullivan

The Nauru Government surprised many in the international community earlier this week by announcing that it had withdrawn from a highly important judicial review agreement with Australia. This agreement allows applicants in Nauru to lodge an appeal with the High Court of Australia and therefore provides an important oversight mechanism for affected individuals.

Whilst it is acknowledged that Nauru, as a sovereign nation, is entitled to establish its own Court of Appeal and sever its appellate ties with Australia, the way in which the process has been carried out is concerning for a number of reasons. Firstly, it has been done despite the fact that the Parliament of Nauru has not yet passed legislation amending its domestic appeals legislation or a constitutional amendment to create an alternative court of appeal. Secondly, the withdrawal was done secretly, without public notification.

Many argue that Nauru’s actions were politically-motivated:  to stop appeals to the High Court from the so-called ‘Nauru19’ – Nauruan citizens who have been charged for involvement in an anti-government protest. Among those accused are former president of Nauru Sprent Dabwido and former justice minister Mathew Batsiua. However, it is also thought that the Australian government has been unhappy with the number of successful appeals to the High Court by asylum-seekers in Nauru (which have had a 90% rate of success).

Therefore, the withdrawal of the High Court appeal avenue has repercussions not only for Nauru citizens but also the many asylum-seekers who are held in Nauru as part of an offshore processing regime which is directly supported (legally and financially) by the Australian government.

The purpose of this article is to assess the lawfulness of this move from a public law perspective and address the wider implications of this, particular for asylum-seekers on Nauru.

The operation of appeals to the Australian High Court

An appeal from the Nauru Supreme Court to the Australian High Court was established by an Agreement between the Governments of Australia and Nauru signed in 1976 (after Nauru’s independence). It provides that, in certain civil cases, an appeal lies to the High Court as of right against any final judgment of the Supreme Court of Nauru.

The appeal process provided in the Agreement was implemented in legislation in Australia via the Nauru (High Court Appeals) Act 1976 (Cth).  Importantly, the appeal right set out in the Australian legislation is directly linked to the operation of the Agreement: Section 5(1) of the Act provides that ‘appeals lie to the High Court of Australia from the Supreme Court of Nauru in cases where the Agreement provides that such appeals are to lie.’ Thus, the High Court of Australia obtains jurisdiction over Nauru only by virtue of this Agreement.

However, this is only part of the story. We must also consider the lawfulness of the withdrawal under Nauruan law. Article 6 of the bilateral Agreement clearly provides for revocation, which provides that it:

 ‘shall continue in force until the expiration of the ninetieth day after the day on which either Government has given to the other Government notice in writing of its desire to terminate this Agreement.’

It appears that the Nauru Government revoked the treaty in December 2017, therefore cutting off the appeal option as of 13 March 2018.

On its face, the withdrawal from the Agreement by the executive arm of the Nauruan government appears to be lawful: the Agreement relates only to the ‘Government’ of each country and the relevant notice has been given to Australia to terminate the Agreement. However, we must also consider relevant legislation and the Nauru Constitution to establish whether Parliamentary approval is required before the appeal right can be severed.

Does the Nauru Parliament need to pass a law to rescind the appeal right?

Importantly, Part V and VI of the Nauru Appeals Act provides that, in certain circumstances, ‘an appeal shall lie to the High Court [of Australia]’. The Nauru legislation is therefore slightly different to its Australian equivalent, in that it does not specifically tie the operation of the High Court appeal avenue to the bilateral Agreement. Rather, the provisions of the Nauru Appeals Act stand on their own as operative law.

Further, the role of Parliament in providing an appeal right to another country is specifically mentioned in the Article 57(2) of the Nauru Constitution, which states:

Parliament may provide that an appeal lies as prescribed by law from a judgment, decree, order or sentence of the Supreme Court to a court of another country.

Whilst this does not specifically mention the role of Parliament in the withdrawal of the Agreement, it does underline the centrality of Parliament in establishing the appeal process. Notably, it refers to prescription of the appeal right by law (not merely by executive action). Presumably if it is Parliament that establishes the appeal right to another country, it must also therefore be Parliament who must dis-establish that appeal right.

Application of principles from the UK case of Miller

In addition to the above, the need for Parliament approval to severe the High Court appeal avenue is arguable using public law principles developed in the UK following Brexit. In a famous case called Miller, the UK Supreme Court held that European Communities Act 1972 gave UK citizens certain EU rights and that these cannot be taken away by an Executive act (by the Prime Minister). This is an important decision as the power to make or unmake treaties is generally considered to be one which can be exercised by the executive arm of government without legislative authority. To put it simply, the argument arising from the Miller judgement is that the Executive cannot abrogate an Act of Parliament or frustrate an Act of Parliament (for more on this, see Robert Craig, who has written a cogent analysis of the Miller case).

By analogy, it could be argued that the appeal rights of people in Nauru cannot be taken away by an executive act and must be approved by Parliament. Or, put another way, that the Nauru government cannot frustrate the operation of the Nauru Appeals Act.

In making a case for the need for parliamentary approval of the withdrawal from the Agreement by Nauru, it is noteworthy that the Justice Minister for Nauru compared Nauru’s abolition of the High Court avenue to the decision by Australia to abolish appeals to the UK Privy Council. I would underline that Australia did this by an Act of Parliament (the Australia Act 1986), not merely by executive action. Therefore the Australia-Privy Council analogy in fact supports the need for parliamentary approval of the withdrawal and does not assist the arguments put forward by the Nauru government.

Should potential applicants have been notified about the treaty revocation?

In addition to the public law principles discussed above, I would argue that there are procedural fairness arguments that could be made in this case. This is due to the fact that asylum seekers who have received a negative decision by the Nauru Supreme Court have been left without an adequate mechanism to file a judicial review claim challenging the legality of that decision.

The fact that the Nauru government secretly renounced the treaty without making it public has denied those applicants the opportunity to exercise their statutory right to apply for appeal under the terms of the Agreement (which was still open to them from December 2017 to 13 March 2018).

Gregory Dale, who has written an excellent scholarly analysis of the Nauru-Australia appeal process, has suggested that the 90 day requirement was put in the treaty for a reason:

‘Presumably by inserting the 90-day requirement into the treaty, the countries were seeking to protect the rights of an individual to appeal a decision, and to provide Nauru time in which to devise another appeals mechanism.’

Unfortunately, there is no explicit requirement in the Agreement for public notification of the intention to withdraw. In order to challenge the lawfulness of the withdrawal on this basis, one would have to argue the UK administrative law principles of legitimate expectation and/or administrative estoppel (which would be possible due to the operation of the Custom and Adopted Laws Act 1971 (Nauru), operation of which is discussed in more detail by Andrew Roberts here).

The argument here would be that there was an ‘expectation’ created by the existence of the bilateral Agreement and that persons should have been notified before the Government terminated the treaty. This argument requires further analysis and justification and is outside the boundaries of this brief piece, but I believe the central issue of the fairness of Nauru’s actions in relation to potential appellants is a legal issue which should be considered.

Conclusions

The withdrawal by Nauru from an Agreement giving rise to an important appeal right has far reaching implications not only for those individuals affected by the decision, but also for the Nauruan constitutional structure.

It also illustrates the legal complexities which arise from the offshore refugee program operated in Nauru on behalf of the Australian government. Nauru, quite rightly, argues that it is a sovereign nation and can renounce the appeal right to the High Court of Australia if it so wishes. However, in practice, the situation is far more complex. This is due to the way in which Nauru has devolved its sovereignty to Australia by holding asylum seekers transferred from Australia in its Regional Processing Centre (RPC). Due to this process, there is blurring of sovereignty and Nauru is not simply accountable to itself for the actions taken against its own citizens, but also for the way in which it treats asylum-seekers who are present due to Australian action and support.

For this reason, in addition to the public law arguments raised above, we must also consider the implications of the recent actions of Nauru for the Memorandum of Understanding (MOU) between Nauru and Australia relating to offshore processing. Clause 5 of that MOU provides that ‘The Republic of Nauru will conduct all activities in respect of this MOU in accordance with its Constitution and all relevant domestic laws.’ This indicates that the failure of Nauru to lawfully rescind the High Court appeal right will put it in breach of the terms of the MOU with Australia.

In closing, as I have argued elsewhere, I contend that the Australian government is legally responsible for the treatment of refugees in both Nauru and PNG. Australia must now act as a leader within the region to ensure that Nauru establishes its own robust Court of Appeal and, in the meantime, that the abolition of the appeal avenue to the High Court of Australia is carried out lawfully. This should involve Parliamentary approval in Nauru and an opportunity for affected individuals to exercise their right to appeal to the High Court until those parliamentary obligations have been fulfilled.

Dr Maria O’Sullivan is a Deputy Director of the Castan Centre for Human Rights Law and specialises in international refugee law. Many thanks to my colleague, Dr Patrick Emerton (Faculty of Law, Monash University) who provided valuable guidance in relation to the potential arguments arising from the UK Miller case. Patrick is a constitutional expert at Monash Law and his work can be found here.

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