Asylum seekers lost in Nauruan constitutional crisis

Adjunct Professor George Newhouse, the Principal Solicitor of the National Justice Project, has accused the Foreign Minister, Julie Bishop, of abandoning asylum seekers to a continuing legal limbo on Nauru.

Prof Newhouse has made the following statement:

“By simply accepting the Nauruan decision to sever all appeal options from the Nauruan Courts to the High Court of Australia, the Foreign Minister is complicit in stripping the Nauruan people and asylum seekers of their legal rights.

“The Australian Government has abandoned vulnerable people on Nauru and stands idly by while any entitlement to an independent appeal is taken away from them. These are life and death decisions since asylum seekers whose claims for protection are refused – without a right of appeal – could be sent back to harm or even death.

“The Government of Nauru has secretly triggered a clause under the treaty between Australia and Nauru to remove the right to appeal decisions made by the Supreme Court of Nauru to the High Court of Australia. Our Australian Foreign Minister knows that the right to appeal to the Hight Court of Australia is an important part of the democratic fabric Nauru and a lifeline for asylum seekers.

“Under the treaty, appeals from the Supreme Court of Nauru to the High Court of Australia can be ended with 90 days’ notice by either government. As the 90 days’ notice period has now expired, all basic appeal rights ostensibly cease. In the interim, the Nauruan government has failed to establish an independent court to hear those appeals; leaving everyone there in greater uncertainty.

“This is not the first time that the tiny Island nation of 10,000 people has been thrown into judicial chaos. In January 2014, the Nauruan government expelled the country’s only magistrate and refused to allow the then Chief Justice (both Australian Citizens) back into the country. No one has ever been held accountable for these acts. Since then, the High Court of Australia has set aside most of the decisions of the new Nauruan Judges.

“It is likely that the unilateral decision will be challenged because the Nauruan Government may have acted beyond its powers. In a similar case, Ms Gina Miller challenged the UK Conservative Government’s decision to trigger Brexit. In that case, (Miller v Secretary of State for Exiting the European Union) the UK Supreme Court held that the UK Secretary of State could not invoke the UK’s exit clause from the European Union without a vote by the UK Parliament. If the “Miller” precedent was followed on Nauru, then the decision to terminate the right to appeal to the High Court of Australia could be void. , There has been no vote on the decision by the Parliament of Nauru. See https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf

“The cancellation of these legal rights will have the immediate effect of stopping opposition members of the Nauru Parliament from appealing their sentences (for protesting against the current Nauru government) which will further damage the fragile “democracy” of Nauru. It will also limit the few remnant legal rights of the asylum seekers that the Australian Government has abandoned there.

“We are sending asylum seekers to an island prison without protection. Removing the oversight of the High Court of Australia is the final straw. In fact, 10 out of 11 adverse decisions made by the Nauruan Courts against asylum seekers on Nauru were subsequently reversed after appeals to the High Court. Australia has dumped more than a thousand men, women and children on Nauru and has a responsibility to protect the already limited rights of asylum seekers and refugees.”

“This act demonstrates once again how Australia’s migration policy has undermined the rule of law and civil society on Nauru,” said Prof Newhouse.

Jane Salmon for Adjunct Professor George Newhouse National Justice Project