Yesterday, three judges of the High Court played an unusual role: hearing an appeal from a non-Australian court. The court in question is the Supreme Court of Nauru and the appeal was from the verdict of its Chief Justice (former Victorian judge The Hon Geoffrey Eames AM QC) that a husband and wife were guilty of raping the wife’s niece. The High Court hears such appeals pursuant to an agreement struck after Nauru’s independence, continuing a similar arrangement  briefly in place towards the end of Australia’s administration of the island.

The appeal role, provided for by the Appeals (Amendment) Act 1974 (Nauru) and the Nauru (High Court Appeals) Act 1976 (Cth), is especially strange for Australia’s national court. The appeal was brought directly against the Chief Justice’s guilty verdict (instead of against an ‘intermediate’ appeal decision by another court) and the husband and wife did not have to ask for permission (usually ‘special leave’) to appeal (unlike everyone else who appeals to the High Court). In 2001, the Australian Law Reform Commission recommended stopping Nauru appeals altogether, citing their oddity, rarity, and doubtful constitutionality. However, the recommendation has not been followed and the High Court later dismissed a constitutional challenge to the scheme.

Chief Justice French and Justices Kiefel and Bell reserved their decision on the rape appeal.