Last Wednesday, the High Court conducted an unusual sitting, where two ‘full court’ (two or more judge) benches heard final appeals simultaneously in separate Canberra courtrooms. This joint sitting is the product of two oddities: first, the High Court’s rare role hearing appeals from a single judge court, the Supreme Court of Nauru (allowing the Court to sit unusual three judge benches); and second, a recent uptick in such appeals. However, these may be amongst the last such sittings. Three weeks ago, at Nauru’s 50th anniversary of its independence in 1968, Nauru’s President Baron Waqa reportedly told the national parliament of a plan to terminate the High Court’s role:
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.
The High Court’s current role as a partial appellate court for Nauru has been in place since 1976, and follows an earlier similar role for the three years prior to Nauru’s independence. But it ‘may well be the only example in the world‘ of such an arrangement. While many small countries utilise foreign judges, they usually do so either by appointing them to local courts (as in Hong Kong and many other Pacific nations) or authorising appeals to a multi-national court (like the Privy Council or some courts in the Caribbean.)
As comprehensively discussed by Andrew Roberts on AusPubLaw, the High Court’s Nauru role has long been considered awkward in Australia, in part because the High Court has to apply Nauruan law, including its customary law (although Nauru has recently adopted Australia’s federal criminal code); in part because Nauruans can bring appeals to the High Court from single-judge Nauruan benches or civil decisions without leave; in part because the High Court’s jurisdiction in such cases sits awkwardly with Australia’s constitutional arrangements (including questions like the hearing of fresh evidence and the application of the Kable principle.) In 2001, the Australian Law Reform Commission cited the jurisdiction’s oddity as a reason to negotiate with Nauru to end the High Court’s role, and three years later the Commonwealth refused to defend the constitutionality the federal statute granting the High Court jurisdiction when it was (unsuccessfully) challenged by the Nauru police. A more recent development is a dramatic shift in the numbers of such actions. While the current arrangement’s first forty years saw just five High Court decisions on appeal from Nauru, its 41st saw the commencement of at least thirteen Nauru appeals.
Radio New Zealand reports that the President’s proposal is opposed by some in Nauru, notably former Justice Minister Matthew Batsiua:
One of the avenues that we have been using is appealing to the High Court of Australia for certain decisions that have gone against us, and we have had some success with that. So we believe the government is reacting to those situations and they are trying to shut off those avenues.
Indeed, in October last year, the High Court quashed a Nauruan Supreme Court decision raising the sentences of three of nineteen participants (including Batsiua) in an alleged ‘unlawful assembly’ outside the Naruan parliament. Moreover, the overwhelming users of the High Court’s Nauru jurisdiction are asylum seekers (placed in Nauru by Australia under the ‘Pacific Solution’) challenging administrative decisions about their status. Of the sixteen reported High Court decisions on appeal from Nauru to date:
- one is a civil appeal (by a former President against the Nauru Lands Council, which the High Court allowed)
- four are criminal appeals, with three appeals dismissed but the most recent one (involving the unlawful assembly) allowed
- eleven are asylum seeker appeals, with eight allowed (all in the last eight months) (five by consent of all the parties, three by reasoned judgment) and three dismissed (one in 2005 and two last year where the appeal was moot because the applicant had been granted refugee status.)
These raw numbers suggest why the end of the High Court’s role in Nauruan court decisions may be welcomed, not only by the government of Nauru but also by the government of Australia.