BY ANDREW ROBERTS

The High Court has recently handed down three decisions in its unusual jurisdiction hearing appeals from the Supreme Court of Nauru. BRF038 v Republic of Nauru (delivered 18 October 2017) and HFM045 v Republic of Nauru (delivered 15 November 2017) both involved applicants who had been refused refugee status. In both cases, the High Court allowed the appeal on the basis that the Supreme Court of Nauru erred in failing to hold that the Refugee Status Review Tribunal denied the appellants procedural fairness. Cecil v Director of Public Prosecutions (Nauru) (delivered 20 October 2017) was an appeal from the decision of the Supreme Court of Nauru to increase sentences on appeal for criminal convictions for civil disobedience. The Court granted leave to appeal and allowed the appeal on the basis that the Nauru Supreme Court failed to identify any error of law before substituting its own sentences. In addition to these decisions, there are a number of other proceedings that are either reserved, pending hearing or have been finalised by consent. It appears that this little-used jurisdiction is becoming a more significant part of the Court’s workload.

As Gregory Dale has explained, there are two main foreign appeal models. The first is a ‘supranational appellate court’, where a country confers appellate jurisdiction on a supranational court. The Privy Council is an example of this model. The second is ‘expatriate judges’, where judges from one country sit on the court of appeal of another country. This model is common in the Pacific, and is seen in countries such as Tonga, Vanuatu and Fiji. The arrangement between Australia and Nauru is distinct from both of these. Dale calls it an ‘offshore municipal appellate court’, which involves one country adopting another country’s court of appeal as its own. This is a particularly unusual arrangement, and may well be the only example in the world. Putting aside the particular issues raised in these recent cases – on one view, these decisions do little to develop the law – this post will consider how it is that these cases are heard by the High Court at all and how the Court goes about the task of exercising this unusual jurisdiction.

An overview

The role of the High Court in hearing appeals from Nauru is established by bilateral treaty. The arrangement is given force in Australia by the Nauru (High Court Appeals) Act 1976 (Cth) and in Nauru by the Appeals Act 1972 (Nauru). The ability to confer appellate jurisdiction on a foreign court is also explicitly provided for in the Constitution of Nauru (s 57(2)). Nauru became an independent republic on 31 January 1968. Prior to independence, Nauru had been administered by Australia since World War I. While the current arrangement came into effect in 1976, it re-established an arrangement that had existed prior to independence.

The High Court only has jurisdiction to hear appeals from Nauru in certain circumstances (Treaty, Art 1). When the Nauru Supreme Court is exercising original jurisdiction, an appeal lies to the High Court:

  • In criminal cases, as of right by a convicted person against conviction or sentence;
  • In civil cases:
    • as of right against any final judgment, decree or order;
    • with the leave of the trial judge or the High Court against any other judgment, decree or order.

Where the Nauru Supreme Court is exercising its appellate jurisdiction, an appeal only lies with the leave of the High Court in both civil and criminal cases. Notably, this means that while an appeal to the High Court from any lower Australian court requires a grant of special leave, an appeal can be brought from the Supreme Court of Nauru to the High Court as of right in many cases or with leave of a Judge of the Nauru Supreme Court in others. The jurisdiction must also be exercised by a Full Court of at least two Justices (Nauru (High Court Appeals) Act s 7).

It is not strictly correct to say that the High Court is the final court of appeal for Nauru or that it functions as a true apex court because there are important limitations on its jurisdiction. Important areas are excluded from the reach of the High Court’s jurisdiction (Appeals Act (Nauru) s 45). The most significant of these exclusions are that an appeal does not lie where it involves the interpretation of the Nauru Constitution, the rights of a person to be or remain a member of the Nauruan Parliament, or against a judgment on appeal from the Nauru Lands Committee or its successors. The nature of these exclusions represents a concern to preserve Nauruan sovereignty in these areas which go to the core of the country’s independence.

This jurisdiction has only been invoked on a relatively small number of occasions. There have only been six reported decisions before these most recent judgments, the last of which was in 2013. Of the reported decisions, three were relatively straightforward criminal appeals, one of which appears to have involved an allegation against an Australian citizen living on Nauru. One case concerned a transfer of land that was brought by a former president of Nauru. Ruhani v Director of Police was an objection to the competency of the High Court to hear appeals from Nauru (which will be discussed below). The last was the substantive decision in that case.

The constitutionality of the arrangement

While the Nauruan constitution specifically provides for this jurisdiction, the position under the Australian constitution is more complicated. In particular, the question arises as to whether the Nauru (High Court Appeals) Act conferred on the High Court a judicial function extraneous to Chapter III of the Australian Constitution. That was the issue in Ruhani. Mr Ruhani was one of the asylum seekers taken to Nauru after arriving in Australian waters aboard the MV Tampa. Mr Ruhani brought an action for habeas corpus in the Nauru Supreme Court, claiming he had been held in immigration detention against his will. The Government of Nauru argued that the Nauru (High Court Appeals) Act was inconsistent with Chapter III because it purported to confer jurisdiction on the High Court to hear and determine appeals of a kind not referred to in s 73 of the Constitution. However, by majority, the Court upheld the validity of the Act. The Court held that an ‘appeal’ from Nauru was in fact not an exercise of appellate jurisdiction. The exercise of the Court’s power to hear an appeal from Nauru is the first exercise of judicial power in Australia. Thus, in hearing an appeal under the Nauru (High Court Appeals) Act, the court is invoking its original jurisdiction, consistent with s 76(ii) of the Constitution, ‘arising under any laws made by the Parliament’.

While Ruhani secures the constitutionality of the jurisdiction, the decision also foreshadows some other issues which may arise in future cases. For example, Justice McHugh raised the prospect that the High Court may have to apply the Kable principle to itself (at [79]). In Kable v Director of Public Prosecutions (NSW), a majority of the Court held that a state parliament could not confer on a state court powers or functions that are incompatible or inconsistent with the institutional integrity of a court vested with Federal jurisdiction. In Ruhani, Justice McHugh suggested that the application of this principle would prevent the Court hearing an appeal that involved Kable-type Nauruan legislation. In such cases, presumably a litigant’s avenues for appeal would exhaust with the Nauru Supreme Court.

What law does the High Court apply?

In Ruhani, Justice McHugh said that the Nauru (High Court Appeals) Act ‘gives effect to the law of Nauru as federal law’ (at [66]). Beyond this proposition however, the Court has not really interrogated the question of what law it is to apply. While the Court readily engages with Nauruan statute law, in no case has the Court relied on Nauruan case law in reaching its decision. Rather, decisions either do not rely on much case law at all or draw heavily on Australian cases (supplemented with some limited international jurisprudence).

However, if the Court is to apply the law of Nauru, according to the Custom and Adopted Laws Act 1971 (Nauru), it should be looking to the law of England. Section 4(1) and (2) of that Act provides that the common law, statutes of general application and the principles and rules of equity which were in force in England on 31 January 1968 are adopted as the law of Nauru. That is not to say that the law of Nauru is static. Section 4(4) of the Custom and Adopted Laws Act provides that the law may

be altered and adapted by the Courts to take account of the circumstances of Nauru, and of any changes of those circumstances, and of any alterations or adaptations of those principles and rules which may have taken place in England.

This issue was averted to in HFM045, where the respondent put an argument on the basis of the UK case of R v The Chief Constable of the Thames Valley Police; Ex parte Cotton [1990] IRLR 344 as to the scope of procedural fairness requirements. The Court, citing the Custom and Adopted Laws Act, said that the appeal did not ‘present the occasion to consider any difference between the law of England and the law of Australia respecting the content of the obligation of procedural fairness in its application in Nauru’ (at [47]). The Court disposed of the argument by distinguishing Cotton and did not further analyse the effect of the Custom and Adopted Laws Act. By holding that Cotton was distinguishable, no further occasion arose to consider any differences between the laws of Australia and England as no other argument was put that raised the issue.

Another challenge the Court may face in exercising this jurisdiction is in the requirement under the Custom and Adopted Laws Act to apply customary law – although again, this has not as yet been addressed in the decided case. Nauru (like many other Pacific countries) requires that customary law be considered and applied as part of the law of Nauru to the extent that it has not been expressly or by necessary implication displaced by Parliament (s 3). In Nauru’s case, the provision is principally concerned with issues related to property law, but also extends to ‘any matter affecting Nauruans only’. Unlike many other Pacific states, Nauru’s provision that adopts customary law is enshrined in statute, rather than in the Constitution. As such, it is not excluded from consideration by the High Court under the terms of the agreement and so the Court may be required to consider matters of customary law if the question arose.

Even if it is applying Australian (or English) law, the legal doctrines which the High Court is called upon to apply may be affected by the particular circumstances of Nauru. The High Court averted to this in Amoe v DPP (Nauru) (1991) 57 A Crim R 244. In that case, decided in 1991, the High Court was called upon to consider whether the trial judge erred in failing to consider the defence of provocation in a murder case. The Court held that the defence would not be available on the facts of the case because of the time that had elapsed between the incident said to give rise to the loss of self-control and the actual incident. However, the Court also suggested in obiter that the defence might have faced ‘other difficulties’. In particular, the Court asked (but did not answer): ‘[w]ould an ordinary Nauruan of the appellant’s age and temperament have reacted in the way in which he did after such an interval of time had elapsed?’ (at 254). It is significant that the Court used the term ‘ordinary Nauruan’ rather than ‘ordinary person’. This recognises that there may be a need to treat matters on appeal from Nauru differently from domestic matters because of cultural and contextual differences. The ordinary Nauruan is no doubt different from the man on the Bondi tram.

Conclusion

When the Nauru (High Court Appeals) Act was passed, politicians said that the arrangement was not a vestige of the past colonial relationship but a means of providing access to a highly qualified court to assist Nauru.[1] There may be advantages to the Court’s current approach of applying Australian legal doctrines. On one view, Australian law may be more developed or more comprehensive than domestic Nauruan law. That is, there may be advantages to a nascent legal system to adopting the law of another country to supplement its own laws. This is presumably the reason for adopting English law, and Australian law would have similar advantages. Clearly, also, the High Court’s expertise is in Australian law. At the same time, it is also arguable that to co-opt Australian law for Nauru may fail to meet the particular needs of the Nauruan people. The New Zealand Law Commission has suggested that foreign judging may undermine a sense of national identity and independence (at 205). As Natalie Baird has noted, Australian judges are ‘cultural outsiders’ to Nauru. There is a risk that foreign judges apply foreign techniques and foreign laws that are not attuned to the particular circumstances of the jurisdiction. As the NZ Commission has suggested, foreign appeals may also inhibit the development of a distinct Nauruan jurisprudence (at 205).

There are also more pragmatic questions. In 2001, the Australian Law Reform Commission recommended the termination of this arrangement. The Commission raised issues of the constitutional validly of the arrangement (since largely resolved) and the unusual leave provisions. Considering how few cases had come before the Court at that time, the Commission said that the jurisdiction ‘would appear to have no obvious utility’ but also noted that it had ‘very little impact on the workload of the High Court’ (at 342–5). The Commission was of the view that Australia could better provide legal assistance to Nauru in other ways, such as providing additional judges to Nauru’s appellate Court (that is, expatriate judges). If the recent decisions and those pending are indeed an indication of the growth of this jurisdiction, it may be that while the jurisdiction has greater utility for Nauru, it also becomes a significant workload for the Court and a distraction from the Court’s domestic responsibilities. This may be all the more pressing if the Court is called upon to reach beyond domestic jurisprudence in deciding these cases. Should these cases continue to come before the Court, it will not be long before it is called upon to grapple with some of the difficult questions that arise as to how the Court should exercise this jurisdiction. Either that, or Parliament will need to consider the ongoing viability and utility of the jurisdiction.

 

[1] See Commonwealth, Parliamentary Debates, Senate, 4 November 1976, 1610–12 (Drew Durak); Commonwealth, Parliamentary Debates, House of Representatives, 2 November 1976, 2227–9 (Lionel Brown); Commonwealth, Parliamentary Debates, House of Representatives, 2 November 1976, 2229­–30 (Ian McPhee).

 

Andrew Roberts is currently an Associate at the Federal Court of Australia and a Reporter for the Federal Court Reports and Federal Law Reports. The views expressed are those of the author. The author would like to thank Professor Rosalind Dixon for her guidance on an earlier version of this post.

Suggested citation:  Andrew Roberts, ‘Appeals to Australia from Nauru: The High Court’s Unusual Jurisdiction on AUSPUBLAW  (4 December 2017) <https://auspublaw.org/2017/12/appeals-to-australia-from-nauru/>