The Blurring of Australian and Nauruan Jurisdiction

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Sarah Keenan

Birkbeck Law School

This article was originally posted on the UK Constitutional Law Association Blog. The article has been edited to meet the IACL Blog publication guidelines. You can read the full article here.

On Easter Sunday, it was revealed that Nauru, the smallest state in the world (aside from the Vatican) with a population of 10,000, had withdrawn from the bilateral treaty which gave Nauruan residents access of appeal to the High Court of Australia. The following day, the Australian Department of Foreign Affairs and Trade (DFAT) confirmed that Australia was notified of the withdrawal in December meaning that, pursuant to the treaty’s 90-day withdrawal notice period, the severance of jurisdiction had taken effect on 12 March. When a state severs the appellate jurisdiction of a former colonial power, it is usually understood as a sign of decolonisation. Nauru President Baron Waqa has characterised the move in these terms, stating that ‘severance of ties to Australia’s highest court is a logical step towards full nationhood and an expression of confidence in Nauru’s ability to determine its own destiny’. However, an examination of the relationship between Australia and Nauru casts serious doubt on this statement. Nauru’s severance of appellate rights to the High Court of Australia may ironically signal its increased exploitation by and dependence on Australia.

Nauru’s rich Phosphate deposits were exploited by British and Australian Governments until independence in 1968, by which point 1/3 of the island had been mined out. Such was the level of exploitation that the Australian Government settled an ICJ action brought by Nauru in 1993 for $A107 million.

Phosphate mining continues to this day, albeit at a lower level than in the British Phosphate Commissioners (BPC) boom days. Mined-out phosphate lands cover almost 90% of the island, and Nauru is now mining its secondary deposits, an imminently finite resource. When in 2001 Australia approached several Pacific island states to host offshore detention centres for people who had travelled to Australia by boat to seek asylum, Nauru was the first to agree. This offshore arrangement was part of Australia’s hard-line policy of ‘deterring’ refugees from travelling to Australia by interning those who did so in camps on Nauru and Papua New Guinea. In return, Australia promised Nauru significant increases in aid money and other assistance. The agreement having been made, the Australian army constructed the refugee camp  and shipped approximately 1000 people to be detained there, causing an overnight 10% increase in the island’s population.

Australia briefly paused its ‘Pacific Solution’ in 2008, closing the Nauru centre, but it restarted the arrangement in 2012. When Nauru signed the Memorandum of Understanding reopening the detention centre it was, as Cait Storr notes, the year before the final installation of its ICJ settlement pay-out from Australia. Since the reopening, Nauru has become more involved in the legal, political and economic maintenance of the centre and those detained there. In 2011, Nauru acceded to the Convention Relating to the Status of Refugees and the following year passed the Refugees Convention Act 2012, which sets up a system whereby the Secretary for Justice and Border Control makes refugee determinations on the basis of recommendations from Refugee Status Determination Officers. The Act also established a Refugee Status Review Tribunal. Decisions of the Tribunal could be appealed to the Nauruan Supreme Court and, from there, to the High Court of Australia.. The institution of the Act saw a sharp increase in Nauruan appeals to the High Court: during the treaty’s 40-year history, there were only 16 reported decisions on appeal from Nauru, 11 of which have been refugee determinations.

The increased Nauruan involvement with what was originally an Australian determination and detention process has blurred Australian and Nauruan jurisdiction. In practice, Nauru’s Refugees Convention Act operates with significant ‘mentorship’ from members of the Australian Department of Immigration and Border Protection, and some Tribunal members are Australian lawyers. Detainees have expressed confusion about who is responsible for their refugee determination process because Australian immigration officers were conducting the interviews, even though they had repeatedly been told it was a Nauruan process.

Some of the issues connected to the confusion over Australian and Nauruan power and responsibility for the detention and related processes were brought to light in the case of M68 v Minister for Immigration and Border Protection [2016] HCA 1. The plaintiff in this case had been forcefully transported to Nauru by Australian authorities in January 2014. In August she was brought to Australia for obstetric and gastroenterological review, and she gave birth to a daughter while in detention in Brisbane. Soon after, she launched an action in the High Court seeking an injunction and writ of prohibition against her transportation back to Nauru. She argued that Australia had detained her on Nauru without legal basis. In the five months between the lodgment of her case and its hearing, the Australian government passed legislation retrospectively validating its capacity “to take, or cause to be taken, any action in relation to the arrangement or the regional processing functions” of another country. In the same period, the Nauruan government announced that the detention centre was now “open”, and that detainees would have freedom of movement on the island.

By a majority of six to one, the High Court found for the Minister, deciding that the validating legislation, and thus Australia’s forcible transportation of the plaintiff to Nauru, was constitutional. Demonstrating the lack of clarity over who is in control of detention on Nauru, three judges found that the plaintiff was detained by the Australian government, three judges found that she was detained by the Nauruan government, and one judge found that the detention was under Nauruan law, though ‘it might be said’ such detention was procured, funded and caused by Australia.

The lack of legal clarity over who is responsible for refugee detention on Nauru is of benefit to the Australian government, which seeks to distance itself from responsibility for the centre while retaining significant control over it. The Australian government modified its policy in 2013 such that “maritime arrivals” would be permanently refused settlement in Australia, even once their claims have been processed (the vast majority of those who arrive by boat are successful in their refugee claims). As such, the Nauru centre is no longer for “processing” claims, but is rather a site of indefinite detention. The centre presently holds around 500 men, women and children in dire conditions. Two refugees self-immolated on Nauru in 2016 and the UN has described the mental health of detainees as ‘very, very shocking’. Only a (necessarily) convoluted tort law precedent gives detainees access to injunctive relief from the Australian court system, based on the finding that the Australian minister retains a duty of care to detainees even while they are being held offshore. Pursuant to this duty, the Federal Court of Australia has granted two injunctions over the last four months ordering emergency medical evacuations of two refugee children from Nauru, both of whom had become suicidal as a result of their detention. Both injunctions were contested by the Australian government.

Nauru is now economically dependent on the detention centre, which accounted for half of its domestic revenue last year. Nauruan politics have been destabilised since the re-opening of the detention centre in 2012. A state of emergency due to “economic security” was declared in 2013, bringing forward general elections. In 2014, Nauru increased the cost of its journalist visa fees from $A200 to $A8000, a move criticised by the Nauru Opposition and by refugee organisations. Soon after, two longstanding Australian members of the Nauruan judiciary were expelled, and a number of Nauruan opposition MPs were suspended from the parliament for criticising the government. A protest against their suspension the following June resulted in public order convictions for 19 Nauruans, including a former Nauruan president and justice minister. Three of these protestors successfully appealed to the Australian High Court against the severity of their sentences. In the appeal, the Nauru Department of Public Prosecutions was represented by an Australian commercial law firm and QC and the appellants were represented by Australian human rights lawyers. Following the (Australian) High Court’s decision that the (Nauruan) Supreme Court had erred in increasing the sentences, the Supreme Court responded by increasing the sentences further.

Nauru has not established an appellate court to replace the Australian High Court, meaning that there is now no access to a court of appeal. With the Waqa government’s evident distaste for media scrutiny, combined with Nauru’s dependence on the detention centre and the legal opacity of who is responsible for the crimes against humanity which there is significant evidence to suggest are being committed there, the severance of High Court jurisdiction allows the Australian government to exert power and control on the island with even less accountability then before.

Sarah Keenan is a Senior Lecturer at Birkbeck Law School.