Nearly four weeks ago, on Tuesday 13th March, the High Court’s jurisdiction apparently shrank. We know this because the media has reported that the High Court registry informed parties to a criminal matter in Nauru (which had previously reached the High Court last October) that:
The agreement between Australia and Nauru that gave the High Court of Australia jurisdiction was terminated as at 13/3/18.
The agreement in question is a treaty between the governments of Australia and Nauru signed in 1976, around six years after Nauru’s independence from Australia. Article 1 of the treaty states that ‘appeals are to lie to the High Court of Australia from the Supreme Court of Nauru’ in some cases. Article 6.1 provides that ‘this Agreement shall continue in force until the expiration of the ninetieth day after the day on which either Government has given to the other Government notice in writing of its desire to terminate this Agreement’. So, presumably, one government gave the other notice on or about Wednesday 13th December 2017, which happens to be the date of the High Court’s most recent judgment on Nauru law (ruling that Nauru’s immigration authorities denied procedural fairness to an asylum seeker transferred to Nauru in 2013.)Media reports quote the Australian government and (second-hand) the Nauru government as saying that Nauru gave notice to Australia. As noted previously here, the Nauru government announced a plan to end Nauru appeals to the High Court during its 50th anniversary celebrations earlier this year.
The removal of the High Court’s Nauru jurisdiction ends a small but recently busy part of the High Court’s work. Its end is controversial because of its impact on current and future litigants before the Nauru Supreme Court (including asylum seekers sent to Nauru by Australia), who lose an independent (and, for the moment at least, any) avenue for review of that court’s decisions. A particular controversy is that neither Australia nor Nauru told the public of the notice to terminate the treaty during the 90 day termination period, perhaps denying disappointed Nauru litigants the option of taking advantage of the transitional provision in Article 6.2 which preserves any appeal ‘instituted in the High Court’ before the treaty ends. It is possible that the two governments may have deliberately not published the notice for this reason. For whatever reasons of its own, the High Court opted not to publicise the pending loss of jurisdiction (if it was aware of it) or (since March 13th) the actual loss of its jurisdiction on its website.
In a blog post yesterday, Monash Law School’s Maria O’Sullivan raises some questions about the legal effect of Nauru’s withdrawal, including drawing an interesting analogy to the litigation last year over the UK’s withdrawal from the European Union. In the landmark Miller judgment, a majority of the UK Supreme Court ruled that the UK government lacked the prerogative power to withdraw from the EU treaty and instead could only withdraw if authorised by statute. The Court also ruled that the European Community Act did not provide that authority (as it did not ‘squarely confront’ the withdrawal question), so the UK Parliament had to pass a fresh statute authorising withdrawal. So far, neither Australia nor Nauru has passed any fresh legislation concerning the High Court’s Nauru jurisdiction. Indeed, Nauru’s statute continues to give the High Court jurisdiction (without any reference to the treaty or its end) and continues to state that the Court’s rulings are law in Nauru.
Given the issues at stake, it is possible that someone will seek to challenge the end of the High Court’s Nauru jurisdiction in some way. One argument may be that the Nauru government lacked the power to unilaterally withdraw from the treaty, either because the terms of Nauru’s local statute don’t contemplate executive withdrawal or because such a withdrawal is inconsistent with the requirements of the Nauru constitution. Another argument may be that the High Court registry’s apparent understanding of the Australian statute (which limits its grant of jurisdiction to ‘cases where the Agreement provides that such appeals are to lie’) as barring post-termination jurisdiction is wrong, perhaps because the Australian statute doesn’t ‘squarely confront’ the withdrawal question. There may also be scope for a narrower argument that the reported withdrawal was ineffective in some way due to its lack of publication. If these fascinating arguments are raised (and not, say, pre-empted by legislation in either or both jurisdictions) then there would be a further, especially difficult, preliminary issue: which nation’s courts could hear a challenge and (if the challenge is first heard in Nauru) could the High Court review that decision on appeal?