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Published online by Cambridge University Press: 17 January 2008
A peculiar and unique agreement exists between Australia and Nauru, which has ensured that, since 1976, appeals may be brought from the Supreme Court of Nauru, an independent Republic, to the High Court of Australia by virtue of a bilateral treaty1 and statutes of the respective Parliaments.2 In 1998 and 1999 two High Court judgments left a question mark hanging over the constitutional validity of this appellate scheme.3 Furthermore, in 2001, the Australian Law Reform Commission (ALRC) expressed the view that Australia should terminate the agreement as the arrangement was of no perceived ‘utility’ to Australia.4 For 29 years only two rather trivial cases were appealed from the Supreme Court to Australia's High Court.5 In 2005 a much more significant case, Ruhani, 6 was appealed from Nauru to Australia. The case was not only significant in that it concerned the validity of the so-called ‘Pacific Solution’, which involved Australia holding asylum-seekers offshore in Nauru for the processing of their refugee claims, but it also raised doubts about the desirability of the offshore municipal model of foreign appeals. This article examines the latter of those issues, intending to demonstrate that the model of foreign appeal adopted in the Nauru Treaty is a compromised version of appeal in comparison with the other two more common models.
1 Agreement between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (opened for signature 6 09 1976, entered into force 21 03 1977) 1216 UNTS 151; 1977 Australian Treaty Series (ATS) 11 (hereafter ‘Nauru Treaty’).Google Scholar
2 Nauru (High Court Appeals) Act 1976 (Cth)Google Scholar; Appeals Act 1972 (Nauru).Google Scholar
3 Australian Law Reform Commission (ALRC), The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, (Report No 92, 2001) [19.19]–[19.20].Google Scholar
4 ibid [19.18]–[19.19], [19.25]–[19.29].
5 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627Google Scholar; Amoe v Director of Public Prosecutions (Nauru) (1991) 103 ALR 595.Google Scholar
6 Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutor) (2005) 222 CLR 489Google Scholar; (2005) 219 ALR 199Google Scholar; [2005] HCA 42 (hereafter ‘Ruhani’)Google Scholar; Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutor) (No 2) (2005) 222 CLR 580Google Scholar; (2005) 219 ALR 270Google Scholar; [2005] HCA 43 (hereafter ‘Ruhani (No 2)’).Google Scholar
7 Susan, Boyd, ‘Australian judges at work internationally: Treason, assassinations, coups, legitimacy of government, human rights, poverty and development’ (2003) 77 Australian LJ 303, 306.Google Scholar
8 Namely, Tonga, Solomon Islands, Fiji, Vanuatu, Tuvalu, Kiribati, and Samoa have Courts of Appeal that are composed of three judges, at least one of whom is an expatriate. For more detail see also Boyd, (n 7), 305–6.Google ScholarSee also Justice and Electoral Committee, New Zealand House of Representatives, Supreme Court Bill (2003) 54–5 (Table 7).Google Scholar
9 Constitution of Botswana, s 100(3)(a). See also Robert, Verkaik, ‘Murderer in ‘White Mischief’ Case to Hang’, The Independent (London, 31 01 2001) 15 (Foreign News).Google Scholar
10 Sir Anthony, Mason, ‘Reflections of an Itinerant Judge in the Asia-Pacific Region’ (2000) 28 Intl J of Legal Information 311, 322.Google Scholar
11 See Ibralebbe v R [1964] All ER 251, 259Google Scholar, as cited in Fawcett, JES, ‘The Judicial Committee of the Privy Council and International Law’ (1967) 42 British Ybk of Intl L 229.Google Scholar
12 However, some have doubted whether the term ‘supranational’ is apt when referring to the Caribbean Court of Justice: Pollard, Duke E., The Caribbean Court of Justice: Closing the Circle of Independence (Caribbean Law Publishing Co, Kingston, 2004) 179.Google Scholar
13 However, to date only two countries have ratified provisions regarding the appellate jurisdiction of the court: namely Barbados and Guyana: The Constitution (Amendment) Act 2003Google Scholar, and The Caribbean Court of Justice (Amendment) Act 2003 (Barbados)Google Scholar; Caribbean Court of Justice Act 2004 (Guyana).Google Scholar The European Court of Justice cannot be characterised as a supranational court of appeal because the preliminary ruling procedure under art 234 of the EC Treaty does not demote the national courts below the ECJ. Instead, national courts seek guidance from the ECJ over matters regarding EC law, and this can hardly been seen as correcting errors of the lower courts: see David, Anderson, ‘The Law Lords and the European Courts’ in Le Sueur, Andrew (ed), Building the UK's New Supreme Court: National and Comparative Perspectives (OUP, Oxford, 2004) 201–2.Google Scholar The same can be said for the European Court of Human Rights.
14 Revised Agreement Establishing the Caribbean Court of Justice Fund.
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19 eg the Privy Council's position within the Jamaican judicial hierarchy is ensured through the Constitution of Jamaica, s 110.
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21 [1994] 2 AC 1 (hereafter ‘Pratt’).Google Scholar
22 Pratt [1994] 2 AC 1 at 17.Google Scholar
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33 See, eg, Forge v Australian Securities and Investment Commission [2006] HCA 44 at [220]–[222] (Kirby, J)Google Scholar; Justice Michael, Kirby, ‘Independence of the legal profession: Global and regional challenges’ (2005) 26 Australian Bar Rev 133, 140–1.Google Scholar
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36 ibid.
37 ibid.
38 Prasad v Republic of Fiji Islands [2001] NZAR 21Google Scholar; [2000] FJHC 122 (High Court of Fiji).Google Scholar
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48 This is just one of such bodies. Others include, eg, the Inter-American Court of Human Rights.
49 Optional Protocol to the Convention on Civil and Political Rights (opened for signature 19 12 1966, entered into force generally 23 03 1976; entered into force in Australia 25 12 1991; entered into force in Nauru 12 11 2001) 999 UNTS 171Google Scholar; [1991] ATS 39Google Scholar, Art 5(2)(b) (hereafter ‘Optional Protocol’).
50 Natalie, Schiffrin, ‘Jamaica withdraws the right to individual petition under the International Covenant on Civil and Political Rights’ (1998) 92 The American J of Intl L 563, 566–7.Google Scholar See Helfer (n 23) who advances three theories as to why Jamaica withdrew from the Protocol.
51 Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos Representación Regional para América Latina y el Caribe (2005) Compilación de observaciones finales del Comité de Derechos Humanos sobre países de América Latina y el Caribe (1977–2004), Caudro II.2 ‘Estado de Ratificaciones del Protocolo Facultativo del Pacto International de Derechos Civiles y Politicos en America Latina y el Caribe’, 49: Guyana decided to denounce the Optional Protocol, only to re-accede on the same day; Jamaica denounced the Protocol on 23 Oct 1997; and Trinidad and Tobago denounced the Protocol on 26 May 1998 and then re-acceded on 27 Mar 2000, only to denounce the Protocol again with effect from 27 June 2000.Google Scholar
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53 ibid. Notably, Finland and Sweden expressed regret to such a reservation.
54 Stephen, Vasciannie, The Privy Council versus the Caribbean Court of Appeal: some general observations (Officer of the Deputy Vice Chancellor, The University of the West Indies, 1996), 7.Google Scholar
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61 David, Goldsworthy, Losing the blanket: Australia and the End of Britain's Empire (Melbourne University Press, Carlton South, 2002) 38–40.Google Scholar
62 Anghie, (n 57) 452.Google Scholar
63 ibid.
64 Nauru Independence Act 1967 (Cth).Google Scholar
65 Anghie, (n 57) 452–4.Google Scholar
66 Agreement for the settlement of the case in the International Court of Justice concerning certain phosphate lands in Nauru (opened for signature 10 08 1993, entered into force 10 08 1993) 1770 UNTS 379.Google Scholar
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74 Western Pacific (Courts) Orders 1961 to 1971 (UK).
75 Arrangement ended by The Kiribati Independence Order 1979 (UK) and Kiribati Act 1979 (UK) s 6.
76 Kiribati Constitution s 123; At one time civil appeals ran from Seychelles to sovereign Mauritius: Fiji: Constitutional Conference, London, Apr 1970. UK Brief No. FCC (70) 4(h) Supplementary Brief, 2.
77 A similar arrangement existed between Western Samoa and New Zealand when Western Samoa was under the trusteeship of New Zealand. The arrangement ended when Western Samoa achieved independence: Western Samoa Act 1961 (NZ) s 7.
78 Nauru Treaty (n 1) Art 1(A)(a).
79 ibid Art 1(A)(b)(i).
80 ibid Art 1(A)(b)(ii).
81 ibid Art 1(B).
82 ibid Art 6(1).
83 ibid Art 6(2).
84 This provision appears to pay homage to the long-standing rule in private international law known as the ‘Moçambique rule’, which prevents a court from hearing matters relating to foreign immovables. See British South Africa Company v The Companhia de Moçambique [1893] AC 602.Google Scholar
85 Nauru Treaty (n 1) Art 2.
86 Although the preamble to the Nauru Treaty mentions the phrase ‘Court of Appeal’ no such court exists: Ruhani v Director of Police [2004] HCATrans 440 (10 11 2004) [459]–[464] (Mr Hanks).Google Scholar
87 Appeals Act 1972 (Nauru) s 41(1); High Court Rules 1952 (Cth) Order 70A(3) (repealed).Google Scholar
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90 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 1 11 1967, 2541 (Mr Bowen, Attorney-General)Google Scholar; the Constitution of Nauru art 57(2) also contemplates such an arrangement, stipulating that ‘Parliament may provide that an appeal lies as prescribed by law from a judgment, decree, order or sentence of the Supreme Court to a court of another country.’
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96 ibid [19.26].
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116 ibid at [27].
117 ibid at [33].
118 Nauru (High Court Appeals) Act 1976 (Cth).Google Scholar
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120 ibid at [19].
121 Ruhani v Director of Police (through the Secretary of Justice as the Director of Public Prosecutor) (2005) 222 CLR 489 at 492.Google Scholar
122 ibid at 493–4.
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126 ibid at [159] (Kirby J), [282] (Callinan & Heydon JJ).
127 ibid at [282].
128 ibid at [79] (footnotes omitted).
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133 ibid.
134 ibid at 102 (Gaudron J).
135 ibid at 109 (McHugh J).
136 ibid at 107 (Gaudron J).
137 ibid at 106; 107–8 (Gaudron J).
138 Nauru Treaty (n 1) Art 2(a).
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145 It also gives credence to the International Covenant on Civil and Political Rights (opened for signature 16 12 1966, entered into force generally 23 03 1976, entered into force in Australia 23 03 1976; entered into force in Nauru 12 11 2001) 999 UNTS 171Google Scholar; 1980 ATS 23 Art 14(5).Google Scholar
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157 ibid, s 3(2).
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161 Agreement Establishing the Caribbean Court of Justice Art III, para 3.
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164 This may parallel some of the problems that beset the United Kingdom when it was establishing a Pitcairn Court of Appeal offshore in New Zealand. That required a formal treaty which was far more thoroughgoing than the Nauru Treaty. See the Agreement between the Government of New Zealand and the Government of the United Kingdom of Great Britain and Northern Ireland concerning trials under Pitcairn Law in New Zealand and related matters (opened for signature on 11 10 2002, entered into force 14 03 2003) 2219 UNTS 58.Google Scholar
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