affiliated to the International Association of Constitutional Law
On Easter Sunday, it was revealed that Nauru had withdrawn from the bilateral treaty which gave Nauruan residents access of appeal to the High Court of Australia.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 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.
An 8-square mile island in the middle of the Pacific Ocean with a population of 10,000, Nauru is the smallest state in the world (aside from the Vatican). Home to Micronesians for at least 3000 years, Nauru was self-sufficient and had its own language and culture prior to European contact. The first recorded European contact with the island occurred soon after Britain’s establishment of a penal colony in Australia in 1788. The increased European trading rivalry in the Western Pacific led Britain and Germany to protect their respective interests by dividing the area up by declaration in 1886, with Nauru falling within the German sector. Following the discovery of phosphate on the island in 1900, a British company purchased mining rights from Germany, and a lucrative mining operation began, with Nauruan landowners being paid royalties of approximately 1/700th the value of the phosphate.
At the Versailles Conference following World War 1, the Australian Prime Minister was insistent that Australia be given effective ownership of Nauru as a reward for the sacrifices Australia had made for the British war effort (including the loss of 60,000 Australian lives). The US President was opposed to Allied colonial control over former Ottoman and German colonies, but the British Prime Minister broadly supported Australia’s demand, and a compromise was reached in the form of the mandate system. Nauru was designated a ‘Class C mandate’, the lowest of the three classes because ‘owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation’ they were deemed ‘best administered under the laws of the Mandatory as integral portions of its territory’ with a measure of League oversight.
Before the mandate had even been formally conferred, Britain, Australia and New Zealand drafted the Nauru Island Agreement 1919 (NIA) which set up the British Phosphate Commissioners (BPC). The terms of this short tripartite treaty were to have profound and long-term consequences for Nauru. The NIA established that the BPC was to consist of one commissioner for each of the three states, and that title to all Nauruan phosphate was to be vested in the BPC. Australia was to appoint an Administrator for Nauru, who would have the power ‘to make ordinances for the peace, order and good government of the Island’.
Between 1919 and 1968, when Nauru became independent, the BPC mined 34 million tonnes of phosphate from the island. Nauruan phosphate played a crucial role in fertilizing the imported farming practices which transformed huge tracts of Aboriginal and Maori land into the breadbaskets of the increasingly wealthy white settler nations of Australia and New Zealand. Throughout this period the BPC paid the Nauruans a low royalty which the BPC set based on what they deemed adequate to meet Nauruan needs.
It was evident to the Nauruans from at least 1925 that the mining operation was compromising the capacity of the land to sustain food producing trees (Anghie 1993: 462). Their protests went unheeded by the BPC, which continued its operations following World War 2, when the United Nations Trusteeship system replaced the League of Nations mandate system. The Australian government was aware that the mining could leave Nauru uninhabitable and at various times during the 1950s and 1960s floated the idea of permanently relocating Nauruans off their island, an idea the Nauruans strongly resisted (Anghie 1993: 459).
Nauruans fought hard for their independence and for control of the phosphate industry, eventually winning both battles. In 1967, the BPC sold the phosphate industry to the Nauruan government for $Aus21 million, and in 1968 Nauru became an independent constitutional republic. By this stage, approximately 1/3 of the island had already been mined out. In 1989 Nauru launched an action against Australia in the International Court of Justice, the first ever case by a former dependent territory against its colonial authority for abuse of power. The case settled in 1993 with Australia agreeing to pay Nauru $Aus107 million.
Despite the Australian pay-out, rehabilitation of Nauruan land has not occurred and may not be physically possible. Phosphate mining continues to this day, albeit at a lower level than in the 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, Australia’s notorious ‘Pacific Solution’, was motivated on the Australian side by a new hard-line policy of ‘deterring’ refugees from attempting to travel to Australia by interning those who did so in camps on Nauru and Papua New. In return, Australia promised Nauru significant increases in aid money and other assistance such as new sports facilities and scholarships for Nauruans to study in Australia. The agreement having been made, the Australian army constructed the refugee camp on mined out Nauruan land 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 Refugee Convention 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 establishes a Refugee Status Review Tribunal. Decisions of the Tribunal can be appealed to the Nauruan Supreme Court and, from there, to the High Court of Australia pursuant to the treaty from which Nauru has now withdrawn. The institution of the Act saw a sharp increase in Nauruan appeals to the High Court: during the treaty’s 40-year history, there have been only 16 reported decisions on appeal from Nauru, 11 of which have been refugee determination appeals (and of these, eight were allowed and two became moot because the applicant was granted refugee status in the meantime).
The increased Nauruan involvement with what was originally an Australian refugee 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  HCA 1. The plaintiff in this case was a Bangladeshi woman who 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 of Australia 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 lodgement 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, principally in visa fees for detainees which are paid for by the Australian government. 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 $200 to $8000, 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 in the international media. 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, last Thursday the Supreme Court increased the sentences further.
Nauru has not established an appellate court to replace the Australian High Court, meaning the protestors, other Nauruans and the detainees now have 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, Senior Lecturer, Birkbeck Law School
(Suggested citation: S. Keenan, ‘The Blurring of Australian and Nauruan Jurisdiction’, U.K. Const. L. Blog (9th Apr. 2018) (available at https://ukconstitutionallaw.org/))