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Appealing to Whom? Australia's ‘Appellate Jurisdiction’ Over Nauru

  • Gregory Dale
Extract

A peculiar and unique agreement exists between Australia and Nauru, which has ensured that, since 1976, appeals may be brought from the Supreme Court of Nauru, an independent Republic, to the High Court of Australia by virtue of a bilateral treaty1 and statutes of the respective Parliaments.2 In 1998 and 1999 two High Court judgments left a question mark hanging over the constitutional validity of this appellate scheme.3 Furthermore, in 2001, the Australian Law Reform Commission (ALRC) expressed the view that Australia should terminate the agreement as the arrangement was of no perceived ‘utility’ to Australia.4 For 29 years only two rather trivial cases were appealed from the Supreme Court to Australia's High Court.5 In 2005 a much more significant case, Ruhani, 6 was appealed from Nauru to Australia. The case was not only significant in that it concerned the validity of the so-called ‘Pacific Solution’, which involved Australia holding asylum-seekers offshore in Nauru for the processing of their refugee claims, but it also raised doubts about the desirability of the offshore municipal model of foreign appeals. This article examines the latter of those issues, intending to demonstrate that the model of foreign appeal adopted in the Nauru Treaty is a compromised version of appeal in comparison with the other two more common models.

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1 Agreement between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (opened for signature 6 09 1976, entered into force 21 03 1977) 1216 UNTS 151; 1977 Australian Treaty Series (ATS) 11 (hereafter ‘Nauru Treaty’).

2 Nauru (High Court Appeals) Act 1976 (Cth); Appeals Act 1972 (Nauru).

3 Australian Law Reform Commission (ALRC), The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, (Report No 92, 2001) [19.19]–[19.20].

4 ibid [19.18]–[19.19], [19.25]–[19.29].

5 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Amoe v Director of Public Prosecutions (Nauru) (1991) 103 ALR 595.

6 Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutor) (2005) 222 CLR 489; (2005) 219 ALR 199; [2005] HCA 42 (hereafter ‘Ruhani’); Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutor) (No 2) (2005) 222 CLR 580; (2005) 219 ALR 270; [2005] HCA 43 (hereafter ‘Ruhani (No 2)’).

7 Susan, Boyd, ‘Australian judges at work internationally: Treason, assassinations, coups, legitimacy of government, human rights, poverty and development’ (2003) 77 Australian LJ 303, 306.

8 Namely, Tonga, Solomon Islands, Fiji, Vanuatu, Tuvalu, Kiribati, and Samoa have Courts of Appeal that are composed of three judges, at least one of whom is an expatriate. For more detail see also Boyd, (n 7), 305–6.See also Justice and Electoral Committee, New Zealand House of Representatives, Supreme Court Bill (2003) 54–5 (Table 7).

9 Constitution of Botswana, s 100(3)(a). See also Robert, Verkaik, ‘Murderer in ‘White Mischief’ Case to Hang’, The Independent (London, 31 01 2001) 15 (Foreign News).

10 Sir Anthony, Mason, ‘Reflections of an Itinerant Judge in the Asia-Pacific Region’ (2000) 28 Intl J of Legal Information 311, 322.

11 See Ibralebbe v R [1964] All ER 251, 259, as cited in Fawcett, JES, ‘The Judicial Committee of the Privy Council and International Law’ (1967) 42 British Ybk of Intl L 229.

12 However, some have doubted whether the term ‘supranational’ is apt when referring to the Caribbean Court of Justice: Pollard, Duke E., The Caribbean Court of Justice: Closing the Circle of Independence (Caribbean Law Publishing Co, Kingston, 2004) 179.

13 However, to date only two countries have ratified provisions regarding the appellate jurisdiction of the court: namely Barbados and Guyana: The Constitution (Amendment) Act 2003, and The Caribbean Court of Justice (Amendment) Act 2003 (Barbados); Caribbean Court of Justice Act 2004 (Guyana). The European Court of Justice cannot be characterised as a supranational court of appeal because the preliminary ruling procedure under art 234 of the EC Treaty does not demote the national courts below the ECJ. Instead, national courts seek guidance from the ECJ over matters regarding EC law, and this can hardly been seen as correcting errors of the lower courts: see David, Anderson, ‘The Law Lords and the European Courts’ in Le Sueur, Andrew (ed), Building the UK's New Supreme Court: National and Comparative Perspectives (OUP, Oxford, 2004) 201–2. The same can be said for the European Court of Human Rights.

14 Revised Agreement Establishing the Caribbean Court of Justice Fund.

15 See further Swinfen, David B, Imperial Appeal: the debate on appeal to the Privy Council, 1833–1986 (MUP, Manchester, 1987) 178220.

16 See Geoffrey, Robertson, The Justice Game (Chatto & Windus, London, 1998) 100; Boyd, (n 7) 306.

17 David, Simmons, ‘Issues of Judicial Independence in the Caribbean Court Room’ (2001) 14 Commonwealth Judicial J 8, 13.

18 Justice and Electoral Committee, New Zealand House of Representatives, Supreme Court Bill (2003), 1112.

19 eg the Privy Council's position within the Jamaican judicial hierarchy is ensured through the Constitution of Jamaica, s 110.

20 Megan, Richardson, ‘The Privy Council and New Zealand’ (1997) 46 ICLQ 908, 912–13; Robyn, Martin, ‘Diverging Common Law: Invercargill Goes to the Privy Council’ (1997) 60 MLR 94. In 2003, New Zealand ended appeals to the Privy Council and established its own Supreme Court.

21 [1994] 2 AC 1 (hereafter ‘Pratt’).

22 Pratt [1994] 2 AC 1 at 17.

23 Pratt, at 22. See also Helfer, Lawrence R, ‘Overlegalizing Human Rights: International Relations Theory and the Commonwealth Backlash Against Human Rights Regimes’ (2002) 102 Columbia L Rev 1832, 1869.

24 Helfer, (n 23) 1869.

25 Pratt, at 30.

26 Constitution of Jamaica s 17(1); Pratt, at 33.

27 Pratt, at 35 (my emphasis).

28 Helfer, (n 23) 1888–91.

29 David Simmons rebuked such suggestions: see Peter, Gregory and Fergus, Shiel, ‘Remarks outrage Caribbean judges’, The Age (Melbourne, 15 04 2003) 4.See also Kirsty Brimelow, ‘A shadow of death hangs over Jamaica and its criminals’, The Times (London, 17 10 2006) 4 (Law).

30 Simmons, , ‘The Caribbean Court of Justice: A Unique Institution of Caribbean Creativity’ (2005) 29 Nova L Rev 171, 175.

31 Kenneth, Handley, ‘The Constitutional Crisis in Fiji’ (2002) 5 The Judicial Rev 287, 287. Similarly, Non-Permanent Judges of the Hong Kong Court of Final Appeal are appointed on three-year terms: Hsu, Berry F.C.Judicial Independence Under the Basic Law’ (2004) 34 Hong Kong LJ 279, 297.

32 Simmons, (n 17) 12; Dorothy, Lightbourne, ‘A Leap into the Dark’ in Delano, Franklyn (ed), We Want Justice: Jamaica and the Caribbean Court of Justice (Ian Randle Publishers, Kingston, 2005) 108–9. This is a troubling prospect in small states where the appointment of acting judges can be dependent on the whim of an individual eg. Under the Constitution of Nauru, Art 53, an acting judge may be appointed and dismissed by the President of Nauru alone.

33 See, eg, Forge v Australian Securities and Investment Commission [2006] HCA 44 at [220]–[222] (Kirby, J); Justice Michael, Kirby, ‘Independence of the legal profession: Global and regional challenges’ (2005) 26 Australian Bar Rev 133, 140–1.

34 George, Williams, ‘The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji’ (2001) 1 OUCLJ 73.

38 Prasad v Republic of Fiji Islands [2001] NZAR 21; [2000] FJHC 122 (High Court of Fiji).

39 Republic of Fiji Islands v Prasad [2001] NZAR 385; [2001] FJCA 2 (Court of Appeal of Fiji).

40 Handley (n 31).

41 Mason, (n 10) 316.

42 Ian, Brownlie, Principles of Public International Law (6th edn, OUP, Oxford, 2003) 75, Crawford, (n 55) 31–2.

43 Supreme Court Act 2003 (NZ) s 3(1)(a)(i).

44 Reid, Alan S. and Nick, Ryder, ‘Death of the Privy Council: Exaggeration or Stated Fact?’ (2001) 14 Commonwealth Judicial J 32, 36.

45 New Zealand, Parliamentary Debates, House of Representatives, 14 Oct 2003, 9112 (Richard Worth).

46 Justice Robert, French, ‘Judicial exchange: Debalkanising the courts’ (2006) 15 J of Judicial Administration 142, 142.

48 This is just one of such bodies. Others include, eg, the Inter-American Court of Human Rights.

49 Optional Protocol to the Convention on Civil and Political Rights (opened for signature 19 12 1966, entered into force generally 23 03 1976; entered into force in Australia 25 12 1991; entered into force in Nauru 12 11 2001) 999 UNTS 171; [1991] ATS 39, Art 5(2)(b) (hereafter ‘Optional Protocol’).

50 Natalie, Schiffrin, ‘Jamaica withdraws the right to individual petition under the International Covenant on Civil and Political Rights’ (1998) 92 The American J of Intl L 563, 566–7. See Helfer (n 23) who advances three theories as to why Jamaica withdrew from the Protocol.

51 Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos Representación Regional para América Latina y el Caribe (2005) Compilación de observaciones finales del Comité de Derechos Humanos sobre países de América Latina y el Caribe (1977–2004), Caudro II.2 ‘Estado de Ratificaciones del Protocolo Facultativo del Pacto International de Derechos Civiles y Politicos en America Latina y el Caribe’, 49: Guyana decided to denounce the Optional Protocol, only to re-accede on the same day; Jamaica denounced the Protocol on 23 Oct 1997; and Trinidad and Tobago denounced the Protocol on 26 May 1998 and then re-acceded on 27 Mar 2000, only to denounce the Protocol again with effect from 27 June 2000.

52 Office of the United Nations High Commissioner for Human Rights, ‘Optional Protocol to the International Covenant on Civil and Political Rights New York, 16 December 1966’ (2006) <http://www.ohchr.org/english/countries/ratification/5.htm> accessed 26 January 2006; see generally Helfer, (n 23) 1881–2.

53 ibid. Notably, Finland and Sweden expressed regret to such a reservation.

54 Stephen, Vasciannie, The Privy Council versus the Caribbean Court of Appeal: some general observations (Officer of the Deputy Vice Chancellor, The University of the West Indies, 1996), 7.

55 For an extensive history of Nauru see Christopher, Weeramantry, Nauru: Environmental Damage Under International Trusteeship (OUP, Melbourne, 1992); See also James, Crawford, The Creation of States in International Law (2nd edn, OUP, Oxford, 2006) 47 (Table 1).

56 Australian Department of Foreign Affairs, ‘Nauru’ <http://www.dfat.gov.au/geo/fs/naur.pdf> accessed 26 03 2007.

57 Antony, Anghie, ‘“The Heart of My Home”: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34 Harvard Intl LJ 445, 449–50.

58 ibid 450.

59 ibid 450.

60 ibid 451.

61 David, Goldsworthy, Losing the blanket: Australia and the End of Britain's Empire (Melbourne University Press, Carlton South, 2002) 38–40.

62 Anghie, (n 57) 452.

64 Nauru Independence Act 1967 (Cth).

65 Anghie, (n 57) 452–4.

66 Agreement for the settlement of the case in the International Court of Justice concerning certain phosphate lands in Nauru (opened for signature 10 08 1993, entered into force 10 08 1993) 1770 UNTS 379.

67 UNGA, ‘Introduction to the Annual Report of the Secretary General’ (1967) 22nd Sess, para 163, UN Doc A/6701/Add.1 cited in Daniel, Orlow, ‘Of Nations Small: The Small State in International Law’ (1995) 9 Temple Intl and Comparative LJ 115, 126; Grant, Thomas D, ‘States newly admitted to the United Nations: Some Implications’ (2000) 39 Columbia J of Transnational L 177, 180.

68 Orlow, (n 67) 115.

69 John, Connell, ‘Nauru: The First Failed Pacific State?’ (2006) 95 The Round Table 47, 53.

70 Republic of Nauru, ‘Letter dated 8 January 2003 from the Permanent Representative of Nauru to the United Nations addressed to the Chairman of the Security Council Committee established pursuant to Resolution 1373 (2001) concerning counter-terrorism’, UN Doc S/2003/127.

71 Craig, Skehan, ‘Nauru defends whaling stance’ Sydney Morning Herald (Sydney, 27 06 2005) 8; Peter, Alford, ‘Votes on whales ‘not sold’’ The Australian (24 06 2005) 9; See also Alexander, Gillespie, ‘Transparency in International Environmental Law: A Case Study of the International Whaling Commission’ (2002) 14 Georgetown Intl Environmental L Rev 333, 345–7.

72 Australian Broadcasting Corporation, ‘Australia disappointed by Pacific whaling vote’ <http://www.abc.net.au/worldtoday/content/2005/s1399886.htm> accessed 27 03 2007.

73 Connell, (n 69) 57.

74 Western Pacific (Courts) Orders 1961 to 1971 (UK).

75 Arrangement ended by The Kiribati Independence Order 1979 (UK) and Kiribati Act 1979 (UK) s 6.

76 Kiribati Constitution s 123; At one time civil appeals ran from Seychelles to sovereign Mauritius: Fiji: Constitutional Conference, London, Apr 1970. UK Brief No. FCC (70) 4(h) Supplementary Brief, 2.

77 A similar arrangement existed between Western Samoa and New Zealand when Western Samoa was under the trusteeship of New Zealand. The arrangement ended when Western Samoa achieved independence: Western Samoa Act 1961 (NZ) s 7.

78 Nauru Treaty (n 1) Art 1(A)(a).

79 ibid Art 1(A)(b)(i).

80 ibid Art 1(A)(b)(ii).

81 ibid Art 1(B).

82 ibid Art 6(1).

83 ibid Art 6(2).

84 This provision appears to pay homage to the long-standing rule in private international law known as the ‘Moçambique rule’, which prevents a court from hearing matters relating to foreign immovables. See British South Africa Company v The Companhia de Moçambique [1893] AC 602.

85 Nauru Treaty (n 1) Art 2.

86 Although the preamble to the Nauru Treaty mentions the phrase ‘Court of Appeal’ no such court exists: Ruhani v Director of Police [2004] HCATrans 440 (10 11 2004) [459]–[464] (Mr Hanks).

87 Appeals Act 1972 (Nauru) s 41(1); High Court Rules 1952 (Cth) Order 70A(3) (repealed).

88 Nauru Treaty (n 1) Art 1(A); ALRC (n 3) [19.15].

89 Nauru Act 1965 (Cth) s 54, made pursuant to the Agreement between the Government of Australia, the Government of New Zealand and the Government of the United Kingdom of Great Britain and Northern Ireland relating to the Territory of Nauru (opened for signature on 26 11 1965, entered into force 26 11 1965) 1965 ATS 20 Art 5(4). No such case was ever appealed from the Court of Appeal (as it then existed) to the High Court under these arrangements: Commonwealth of Australia, Parliamentary Debates, Senate, 2 12 1976, 2469 (Senator McClelland). The arrangement under the Nauru Act 1965 (Cth) s 54(2) was subject to the ‘leave of the High Court’.

90 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 1 11 1967, 2541 (Mr Bowen, Attorney-General); the Constitution of Nauru art 57(2) also contemplates such an arrangement, stipulating that ‘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.’

91 Appeals (Amendment) Act 1974 (Nauru).

92 Commonwealth of Australia, Parliamentary Debates, Senate, 2 12 1976, 2469 (Senator McClelland).

93 Commonwealth of Australia, Parliamentary Debates, Senate, 4 11 1976, 1610–12 (Senator Durack).

94 ALRC (n 3) [19.25].

95 ibid [19.27].

96 ibid [19.26].

97 (hereafter ‘Re Wakim’)(1999) 198 CLR 511.

98 Constitution of Australia Act 1901 (Cth), s 73.

99 Constitution of Australia Act 1901 (Cth), ss 75 and 76.

100 Ruhani at [119] (Gummow, & Hayne, JJ).

101 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (hereafter ‘VCCL’)(2001) 182 ALR 617 at [14]–[17].See also Peter, Mares, Borderline: Australia's response to refugees and asylum seekers in the wake of the Tampa (UNSW Press, Sydney, 2001).

102 VCCL at [18].

103 ibid at [22].

104 ibid at [25]–[26]; in these cases the term ‘rescuees’ was adopted by the courts insetad of asylum-seekers in the interests of neutrality: ibid at [17] Mares (n 101) 122–6.

105 ibid at [27]; Border Protection Bill 2001 (Cth) s 8.

106 VCCL at [29].

107 ibid at [70], [72], [81].

108 ibid at [170].

109 Ruddock v Vadarlis (2001) 183 ALR 1 at 55, 57.

110 ibid at 55–8.

111 Transcript of Proceedings, Vadarlis v Minister for Immigration and Multicultural Affairs No M93 of 2001 (High Court of Australia, 27 11 2001).

112 ibid at ll 2246–8 (Gaudron J).

113 Ruhani v Director of Police (through the Secretary of Justice as the Director of Public Prosecutor) (2005) 222 CLR 489 at 490; Meaghan, Shaw, ‘Nauru can hold asylum seekers, High Court rules’, The Age (Melbourne 1 09 2005) 6.

114 Amiri v Director of Police [2004] Civil Action No 8 of 2004 at [1] (Unreported, Supreme Court of Nauru, Connell CJ, 31 05 2004).

115 ibid at [16].

116 ibid at [27].

117 ibid at [33].

118 Nauru (High Court Appeals) Act 1976 (Cth).

119 Ruhani at [2].

120 ibid at [19].

121 Ruhani v Director of Police (through the Secretary of Justice as the Director of Public Prosecutor) (2005) 222 CLR 489 at 492.

122 ibid at 493–4.

123 Ruhani at [119] (Gummow, & Hayne, JJ).

124 Ruhani at [108].

125 ibid at [110]–[112] (Gummow & Hayne JJ).

126 ibid at [159] (Kirby J), [282] (Callinan & Heydon JJ).

127 ibid at [282].

128 ibid at [79] (footnotes omitted).

129 Kable v Director of Public Prosecutions (NSW) (hereafter ‘Kable’) (1996) 189 CLR 51.

130 ibid at 63.

131 ibid.

132 ibid at 64.

133 ibid.

134 ibid at 102 (Gaudron J).

135 ibid at 109 (McHugh J).

136 ibid at 107 (Gaudron J).

137 ibid at 106; 107–8 (Gaudron J).

138 Nauru Treaty (n 1) Art 2(a).

139 Sueur, Andrew Le, What is the future for the Judicial Committee of the Privy Council? (The Constitution Unit, UCL, London, 2001) 5.

140 Privy Council Office, ‘The Oath of a Privy Counsellor’ <http://www.privycouncil.gov.uk/files/word/Privy%20Counsellor's%20Oath.doc> (accessed 2 01 2007).

141 Sir Gerard Brennan, ‘Speech on swearing in as Chief Justice’ (1995) <http://www.hcourt.gov.au/speeches/brennanj/brennanj_swearing.htm> (accessed 2 01 2007).

142 ibid.

143 ALRC (n 3) [19.26].

144 eg the Constitution of the Republic of Trinidad and Tobago 1976 s 109(1)(c) stipulates that appeals are to lie to the Privy Council as of right against any ‘final decisions in any civil, criminal or other proceedings which involve a question as to the interpretation’ of the Constitution, subject to some exceptions.

145 It also gives credence to the International Covenant on Civil and Political Rights (opened for signature 16 12 1966, entered into force generally 23 03 1976, entered into force in Australia 23 03 1976; entered into force in Nauru 12 11 2001) 999 UNTS 171; 1980 ATS 23 Art 14(5).

146 Commonwealth of Australia, Hansard, Legal and Constitutional Legislation Committee, Senate, 26 05 2006, 1718, 21 (Brian Walters SC).

147 Ruhani (No 2) at [26] (footnote omitted).

148 ibid at [34].

149 Ruhani at [289].

150 Although it is difficult to gain a holistic impression of the HRC's influence: UNGA, ‘Report of the Human Rights Committee, vol. 1’ UN Doc Supp No 40 (A/61/40) paras 229–31; Office of the United Nations High Commissioner for Human Rights, ‘Civil and Political Rights: The Human Rights Committee’, Fact Sheet No 15 (Rev 1) <http://www.ohchr.org/english/about/publications/docs/fs15rev.1_en.pdf> (accessed 27 03 2007), 2930.

151 ibid at [294].

152 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.

153 Constitution of Nauru Art 4; Appeals Act 1972 (Nauru) s 39(1). Furthermore, Nauru is not a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (opened for signature on 15 12 1989, entered into force generally 11 07 1991; entered into force in Australia 11 07 1991) 1642 UNTS 414; [1991] ATS 19 (hereafter ‘Second Optional Protocol’).

154 Extradition Act 1988 (Cth) s 22(3)(c). See further New South Wales Council for Civil Liberties, ‘Submission to the Minister for Justice and Customs review of Australia's Extradition Law’ (2006) <http://www.nswccl.org.au/docs/pdf/extradition%20review.pdf> (accessed 15 05 2006).

155 Section 4.

156 Death Penalty Abolition Act 1973 (Cth) s 5.

157 ibid, s 3(2).

158 Nauru (High Court Appeals) Act 1976 (Cth).

159 Ruhani at [8](Gleeson, CJ), [66]–[67](McHugh, J), [103]–[105](Gummow, & Hayne, JJ), [216]–[217](Kirby, J).

160 Ruhani at [78].

161 Agreement Establishing the Caribbean Court of Justice Art III, para 3.

162 Oliver v The Queen [2007] UKPC 9 at [19].

163 Swinfen, (n 15) 201–2.

164 This may parallel some of the problems that beset the United Kingdom when it was establishing a Pitcairn Court of Appeal offshore in New Zealand. That required a formal treaty which was far more thoroughgoing than the Nauru Treaty. See the Agreement between the Government of New Zealand and the Government of the United Kingdom of Great Britain and Northern Ireland concerning trials under Pitcairn Law in New Zealand and related matters (opened for signature on 11 10 2002, entered into force 14 03 2003) 2219 UNTS 58.

* Honorary Researcher, The Constitution Unit (University College London); LLB (Hons) (Griffith), BCom (Griffith). I wrote part of this article while working in the capacity as a Tutor and Research Assistant at Griffith University Law School, Australia. In reference to an earlier draft, I would like to thank Associate Professor Graeme Orr (University of Queensland Law School) for his detailed comments and encouragement, Associate Professor Mary Keyes (Griffith University Law School) for her invaluable suggestions, and Lesley McFadzean for her detailed remarks regarding content and style. I would also like to thank the anonymous referees for their comments. Of course, all errors and opinions remain my own.

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