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?
Jeremy, thanks for an interesting post. Regarding your concluding question — the appropriate forum for challenging the termination of appeals — it may be of help to consider a case from several years ago. Jamaica has decided to end appeals to the UK Privy Council and substitute it with the Caribbean Court of Justice as a final court of appeal. Three bills were passed to that effect and signed into law in 2004. There was a challenge to their validity, claiming that the Parliament of Jamaica did not follow the procedure provided by the Constitution for such a change. This was heard at the Jamaican courts, and they rejected it. The challengers than appealed to the Privy Council. It allowed the appeal: Independent Jamaica Council for Human Rights (1998) Ltd v Marshall-Burnett  UKPC 3,  2 AC 356 (http://www.bailii.org/uk/cases/UKPC/2005/3.html). Lord Bingham for the Board said expressly that Jamaica is free to end appeals to the Privy Council using the proper procedure. For some reason, it has yet to do so. Be that as it may, this is a possible course of action in a Nauru-Australian litigation as well: begin at Nauru and end in Canberra, just like any other case under the (challengers’) assumption that the termination of appeals is flawed and invalid. Otherwise, and this is something I don’t know, is there a procedure for starting a Nauru case at the HCA?
Thanks Matan. That’s fascinating (although I am sad that the outcome was Jamaica not joining the CCJ’s appellate jurisdiction.)
But there are some important differences in the Nauru/Australia situation. The most relevant one is that the High Court’s appellate jurisdiction over Nauru law specifically excludes Nauru’s constitution. So, if the argument against the notification or absence of an appeal court rests on Nauru’s constitution, then that can only be resolved by the Supreme Court of Nauru, without appeal. But I think there’s a good argument that that doesn’t apply to a Miller argument or other arguments based on Nauru’s appeals statute.
The HCA’s Nauru jurisdiction is strictly appellate, so any High Court ruling on whether Nauru law’s permits the withdrawal must come on appeal from the Nauru Supreme Court. Of course, if the Nauru SC and the HCA reach opposite conclusions on whether the HCA can still review a Nauru SC decision (or on whether the issue is under the Nauru constitution or not), then we’ll have a (fascinating!) constitutional paradox.
The HCA of course has its original jurisdiction over Australian law, including on matters arising under a treaty, and on prerogative writs against commonwealth officers (including the HCA itself, I think), so – assuming standing, remedies etc – someone could potentially initiate a case in the HCA seeking a ruling on whether its Nauru appellate jurisdiction continues to exist or not.
One final point: Nauru got its independence pursuant to a 1968 Australian statute, so there’s also an interesting question of whether or not the HCA has some authority to rule on whether Nauru laws are constitutional under that statute? (I assume that the Privy Council gets some similar authority from Jamaica’s ties to the imperial parliament?)
The post-termination questions just add up, it seems. Perhaps we’ll once again see a Nauru case at the HCA with a panel of more than three judges.
Jeremy,I read this post with interest.I have grave doubts,however,that any failure to give notice(if notice to the public was in fact required which I also doubt) gives rise to any private right.I don’t know of any other case where this has been suggested.
If, contrary to what I have said above,there is a private right,then there must be proceedings first in the Nauru courts followed by an appeal to the High Court.