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Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in

Submission from the Hon Geoffrey M Eames AM QC

Nauru and the Rule of Law

In December 2010 I was appointed Chief Justice of the Republic of Nauru by President Marcus Steven. I held that position until I resigned on 13 March 2014. My resignation was forced, because the Nauru government of President MP had revoked my visa, thus making it impossible for me to perform the role of Chief Justice. The actions of the Nauru government constituted a series of flagrant breaches of the Rule of Law. The fact that the government is not committed to the Rule of Law should be a matter of concern to the Australian government.

Removal of an independent judiciary

Resident Magistrate and Registrar of the Supreme Court, Peter Law, was arrested on 19 January 2014, forced on to an aeroplane and deported under police escort. No reasons were given to him by the government for this extraordinary action. The reasons, however, are now very clear – Mr Law had offended the Minister for Justice and Border Control, Mr , by making interim orders, as Registrar, restraining the unlawful deportation of two expatriate businessmen, an Australian, Rod Henshaw, and a Fijian, Mohammed Haneef. The Resident Magistrate granted the applicants leave to commence judicial review proceedings.

David Adeang, was incensed by Peter Law’s orders because he believed, wrongly, that under legislative amendments to the Immigration Act 1999 that had been steered through Parliament by him in December 2013, non-citizens could be deported without notice, or grounds, and were denied the right to review his decisions in the courts.

As events repeatedly confirmed, the concept of separation of powers was not well understood or accepted by some members of the government.

No reasons were provided to Haneef or Henshaw for their deportation. Henshaw had been the media adviser to the former government, and in that role had written and published media statements that were highly critical of Adeang. It seems likely that that Adeang’s animosity towards Henshaw was a key factor in his removal. 2

Peter Law responded to the Minister’s SMS by saying that the injunctions were merely interim orders, preserving the status quo, pending any review, appeal or confirmation after a full hearing. He noted that the cases were next listed for mention on Monday 20 January 2014 when, if it wished, the Government could seek to have the orders set aside or appealed. Rather than take that course on Monday 20th January, as Peter Law had suggested, the government had Mr Law arrested, deported and replaced on Sunday 19th January 2014. When first arrested, Peter Law telephoned me in Melbourne and applied for orders restraining his deportation.

On Sunday 19 January 2014 I was telephoned by President Waqa, who advised me of the proposed deportation and I sought his assurance that no further action would be taken to deport Law before I arrived in Nauru the following morning.

I advised the President that if he refused to provide the requested undertaking I would issue injunctions restraining any further action until my arrival.

I had booked a flight to Nauru, to arrive at 5.30 am the following day, Monday 20 January 2014. Upon failure of the President to give an appropriate undertaking, I drafted and issued injunctions restraining the President, the Minister for Justice, the Commissioner of Police and the airline from proceeding with the deportation. Those orders were served, but were ignored. The police officer in charge said “we don’t take our orders from the Chief Justice”.

I had sent e mails to the respondents pointing out that failure to comply was likely to constitute contempt of court. That afternoon the airline rang me to advise that my visa had been withdrawn by the government.

The orders made by Peter Law as Registrar of the Supreme Court were supported by comprehensive reasons and were entirely appropriate under Nauruan Law. The amending legislation was seriously flawed, due to very poor drafting by a Fijian lawyer engaged by the government for the purpose. The deficiencies of the amending legislation were admitted in open court by the Solicitor General who had appeared for the government when the orders were first made by the Registrar.

The Solicitor General and also the Senior Government Solicitor subsequently resigned in protest about the government’s treatment of Peter Law and myself.

The government tacitly admitted the deportation orders issued against Henshaw and Haneef - and subsequently against Peter Law, too - had been defective, because it repealed the legislation entirely and substituted a brand new Immigration Act 2014, which by s.35, purported to act retrospectively so as to declare that any proceedings or orders that had been commenced or made challenging decisions made under the former Act are “no longer taken to be a valid proceeding and hence must be discontinued”. Whilst a fairly pointless discretionary right of review of decisions of the Minister is given to the President - s.11((13) provides that no person 3

had any right to challenge or seek review of the Minister’s decision, or to bring any proceedings in any court.

The replacement Resident Magistrate, one Andrew Jacobson, who had been flown to Nauru from Melbourne by the government for the purpose of replacing Law, conducted only one substantive, and brief, hearing in his memorable reign. On 29 January 2014 he sat on the cases of Henshaw and Haneef (notwithstanding that I had made orders expressly ruling that those cases were in the Supreme Court and were to be conducted by me or a Supreme Court judge appointed by me).

He declared the new legislation to be valid and effective and he held that the plaintiffs Henshaw and Haneef had no case, indeed, had no right to argue a case. They were deported soon after. The same day that he dismissed the judicial review applications and discharged the injunctions magistrate Jacobson flew out of Nauru, never to return.

Not only did I have a written contract guaranteeing my appointment to age 75, but Article 51 of the Nauru Constitution provided that a judge could not be removed except upon a two thirds vote of parliament in the event of proved misconduct or incapacity. It was, however, impossible for me to perform the duties of Chief Justice from Victoria. On 13 March 2014 I resigned.

In September 2014 the government appointed a new Chief Justice, Ratu Joni Madraiwiwi, and two puisne justices, Elizabeth Hamilton-White and Mohammed Shafi Khan. A new resident Magistrate had been earlier appointed.

At his welcoming ceremony on 8 September 2014 the Chief Justice extended warm greeting to the government and people of Nauru and offered particular salutations to the President and First Lady “because of their blood ties with my homeland Fiji”. He said that the new appointments “strengthened the capacity of the judiciary and represents a determination to move beyond the turbulent challenges of the recent past. It will ensure a more collegial and consultative judiciary going forward”.

Submission of Mr Peter Law

I have read the submission of Mr Peter Law to this Committee (Submission No 28) and save for some minor details agree with it. One of the details about which I am uncertain concerns the terms on which three new Supreme Court judges and a new resident Magistrate were appointed in 2014 by the President.

After the cancellation of my visa the President and Ministers claimed that they had removed the judiciary as an act of sovereignty, it being the right of government to decide who would hold judicial posts. One Minister, MP, publicly proclaimed that any future appointees to judicial positions would be appointed on six monthly contracts only, reviewable at the end of each six month period. 4

Such a contractual arrangement would be a very blatant denial of judicial independence, but I do not know whether the new appointees were in fact appointed on such terms. If they had accepted such terms then any claim to judicial independence would be very hollow.

However, even if the new judges were granted tenure to age 75, as was my contract, the Nauru government has demonstrated that it would ignore this contractual term if it deemed it appropriate. Nor would the constitutional guarantee of security of tenure deter the government. In my case, the government simply overrode those safeguards to judicial independence by removing my visa when I was off island. The three new Supreme Court judges could equally be removed in that way, since none is a Nauruan citizen.

The Rule of Law

The Asia Pacific Regional Director of the International Commission of Jurists, Sam Zarifi, summed up the relevant principles of the rule of law: “(R)emoving judges from office, without any process whatsoever, breaches clear international standards on the independence of the judiciary”.

Nauru was signatory to the Commonwealth’s Latimer House principles of 2003, the United Nations Basic Principles for Independence of the Judiciary, and The LawAsia Beijing Statement of principles for independence of the judiciary. Each of those instruments commits Nauru to apply the Rule of Law with respect to the removal of judicial officers.

Those principles of the Rule of Law to which successive Nauru governments have committed the country, and which the Constitution embodies, require that no judicial officer be removed from office without good reason, without the opportunity to contest the decision and without a transparent process in accordance with law.

The circumstances surrounding the removal of the Registrar and myself were widely recognised to be blatant denials of those principles, which are at the heart of democracy.

Peter Law and I received support from the Commonwealth Magistrates and Judges Association, International Commission of Jurists, Judicial Conference of Australia, Lawasia, South Pacific Lawyers Association, Commonwealth Lawyers Association, Victorian Bar Council and other Bar associations, the Law Council of Australia, the New Zealand Law Society, the Chief Justice of Victoria and many others

On 7 March 2014, in a joint statement, the Chief Justices of eleven Pacific jurisdictions, meeting in Auckland, expressed “deep concern” about the events in Nauru and said they “give rise to serious concerns about judicial independence and the operation of the Rule of Law in Nauru”. 5

The attempted removal of judges in the Asia Pacific region and Africa, are matters of serious concern to the judiciary everywhere. Blatant challenges to the independence of the judiciary and removal of judges, or forcing them to resign, have occurred in Fiji, Sri Lanka, Pakistan, Zimbabwe, Papua New Guinea and elsewhere. Any instance of a breach of the Rule of Law is a matter of great importance to the citizens of all countries in the Pacific.

Unlike the position adopted in the past about the removal of Fiji judiciary, for example, the Australian government has not made any public statement denouncing the unlawful removal of the Nauru judiciary.

Removing opposition voices

Opposition members of Parliament protested the denial of the Rule of Law. They had no access to Nauru media, as Adeang and the government had directed the local media not to report any opposition spokespeople. There are no foreign journalists in Nauru as the government has imposed an $8000 non-refundable fee on journalists who apply for a visa.

The opposition politicians took their protests to the international media, by telephone interviews or by travelling to Australia or New Zealand. In response to the exercise – outside parliament- of their freedom of speech, which is guaranteed by the Nauru Constitution, Adeang and the Speaker, , combined to have the politicians expelled from parliament.

The complaints to foreign media about the collapse of the rule of law were described by the President and other ministers as “treason”. The expelled members had their salary stopped, their vehicles, phones and office privileges removed. They have not sat in parliament since March 2014.

The government announced that the members of parliament would not be permitted to return unless they each contacted every journalist they had spoken to, retracted their criticism, and apologised to the government.

The exclusion of the five MPs was challenged in the Supreme Court. All three Supreme Court judges sat and unanimously concluded that the court had no jurisdiction to consider the case since it involved the internal procedures of parliament and were thus exempt from scrutiny and protected by parliamentary privilege1.

Having decided it had no jurisdiction, the Court did not address the many constitutional arguments that had been put forward for the applicants. The reasons given by the Speaker for expelling the five members are set out in the judgment.

1 Keke and Others v Scotty, Cases Nos 39 and 40, judgment 11 December 2014. 6

Three of the MPs were expelled solely because they ”made remarks in foreign media that detract from Nauru’s development goals” and their remarks “were intended to inflict maximum damage to Nauru’s reputation and the government’s efforts to improve the well-being of its people”.

The real complaint was that the MPs criticised the abuse of the Rule of Law as constituted by the removal of the former judiciary.

For three of the members it was solely their criticism of the government concerning the rule of law that caused them to be expelled, and their remarks were made outside the parliament. It is surprising then that the Court should conclude that their remarks concerned the internal procedures of parliament. The other two members were expelled not only because they exercised their right of free speech outside parliament but also because of alleged misconduct, including damaging equipment, during a rowdy debate. It is difficult to see how such conduct, even if established, could result in permanent expulsion of a member of parliament (and, in any event, the Constitution has express provisions – not considered by the Court - addressing the circumstances in which a member can be removed).

The Supreme Court decision creates an unfortunate precedent for tolerating the abuse of parliamentary democracy.

Undermining the Rule of Law

The undermining of the Rule of Law in Nauru has continued since my departure. Authoritarian behaviour has been accompanied by ever more secrecy. A justice system must be open to scrutiny and criticism. The government must not abuse its power so as to deny rights which citizens and non-citizens alike are guaranteed under the Nauru Constitution. So long as the government refuses to acknowledge that its removal and replacement of the judiciary offended the Rule of Law no one appearing in the Nauru courts can be confident that the system is fair and open,.

The events surrounding the removal from office of Peter Law and myself are very clear and blatant examples of breaches of the Rule of Law and interference with judicial independence. But there are more subtle ways to breach those principles which must also be guarded against, even when a breach of principle is not intended.

Following two major incidents of riotous behaviour by some detainees it was apparent that the resources of the judiciary would be severely stretched by the more than 120 prosecution cases that had to be heard. The courthouse itself is tiny and not secure; it could not easily cope with trials involving multiple defendants .

In about August 2014 the Secretary for Justice invited me to inspect a very substantial air-conditioned room that could be fitted out to serve as a court house for 7

the hearing of cases involving detainees. The accommodation was excellent, but I rejected it as an option as it was located in the administrative wing of the Detention Centre.

From the viewpoint of the operator of the detention centre it was ideal, as it allowed the defendants to be securely detained at all times. In my opinion, however, the arrangements were unacceptable. In my view, they would compromise the independence of the judiciary, and inappropriately engage detention centre employees in the court process when it was likely that defendants would be challenging witnesses from the detention centre. There would be a perception of bias and lack of independence, with the judiciary being viewed as part of the detention centre. Furthermore, it was proposed that no media would be permitted to attend the hearings, nor any members of the public, due to security concerns held by the Detention Centre operator. This would not have been an open court, an essential requirement for any system of justice.

That would have been an unintended undermining of the independence of the judiciary, but I give an example of what I consider to be a calculated abuse of power.

There are legal proceedings before the Supreme Court brought by Mr Henshaw, seeking damages and other orders relating to his deportation. The defendants, have applied to have the proceeding struck out. It is plainly important litigation, and very complex.

It is for the Court to determine the issues raised by those proceedings, and I make no comment on the merits of the case, but what is of great concern is that the Australian barrister who, together with a Nauruan pleader, has represented Henshaw for more than a year has now been refused a visa to attend the hearing. The same barrister has the conduct of proceedings brought by detainees seeking orders that they are being held unlawfully. The barrister is admitted to the and is of good standing. The arbitrary exercise of power to deny him a visa is a matter of concern.

The role of police in maintaining the Rule of Law

In the last year there have been many allegations of incidents both inside the Detention Centre, and outside, concerning assaults on refugees or detainees. It is reasonable to assume that the atmosphere of secrecy that is determinably applied by the government has as one purpose the suppression of publicity concerning such complaints. It is also reasonable to assume that secrecy in that regard serves the interests of the Australian government, not just the interests of the Nauru government.

The police force shows little appetite for investigating or prosecuting politically unpopular conduct, such as allegations that persons declared refugees had been 8

assaulted upon release into the Nauruan community. Likewise, some members of the police force seem to have little respect for the courts, as exemplified by the officer in charge of Peter Law’s deportation, who simply ignored a Supreme Court injunction.

If Australia is to take responsibility for the welfare of people transferred by the government to Nauru then the Nauru and Australian public must be assured that allegations of assault and other criminal conduct will be genuinely and thoroughly investigated. Where such thorough investigations might be seen by Nauru police to be unwelcome, so far as the Nauru government is concerned, it is unlikely that they will be undertaken.

David Adeang is recognised as the power behind the throne in Nauru. It was he who obtained cabinet approval to sack the Commissioner of Police Federal policeman Richard Britten on 19 July 2013; and it was Adeang who removed the visa of the head of Digicel, the ISB provider for Nauru. That was followed by the closing of access to Facebook, one remaining avenue whereby the public could criticise the government.

Given his role in undermining the Rule of Law It is a matter of concern that it will be Adeang who will administer new legislation that will even further discourage free criticism of the government.

A new criminal offence

The creation of a new criminal offence in Nauru - s.244A of Criminal Code 1899 - represents further evidence of the disregard for democratic principles held by the Nauru government. 9

The new legislation creates an offence with respect to the making of statements or publishing of material of a kind deemed offensive or threatening to national defence, public safety, public order public morality or public health.

The new offence carries up to seven years’ imprisonment.

The language has some similarity to that employed in Section 18C of the Australian Racial Discrimination Act, but that disguises the true target of the Nauru legislation. In the first place, the new offence does not provide any of the safeguards that are embedded in the Australian legislation, which exempt conduct engaged in good faith, in public debate, or by way of fair comment based on genuine belief in a matter of public interest. But in addition the new offence targets political debate.

The new legislation creates a range of criminal offences, including the following conduct:

(a) Where the statement or material “harasses or causes emotional distress to a person” and is “likely to threaten public order”, or (b) Where the statement or material is “abusive or insulting in nature” and is intended to stir up “political hatred”, and in addition is “likely to threaten public order”.

It is dangerous legislation; its mere existence likely to crush dissident voices.

Conditions in the detention centre

The reaction of the Prime Minister and senior Ministers to the report of the Human Rights Commission - “The Forgotten Children” - implied that there is no substance in the allegations that the welfare of children in detention in Nauru had ever been put at risk. In the case of children detained in Nauru my concern for the conditions in which children were housed led me, as Chief Justice, to make private representations to the , The Hon Baron Waqa MP, on 26 November 2013. He appeared to share my concern.

Upon my inspection of the camps, at the invitation of the Secretary for Justice, I was appalled by what I saw. In the several separate detention areas the detainees (of whom more than 100 were children) were housed in tents, closely confined and with little privacy. The oppressive mid-afternoon heat was unbearable outside the tents, and even worse inside. I saw children huddled in what amounted to a metre of shade on the side of the tents. The ground was barren and rocky, with blinding glare; the facilities for children to play were all but non-existent. The uniforms of guards and detainees, and their body language and activity, suggested that the camp was a prison, albeit without visible weapons. There was no air conditioning in any of the separate camps in which detainees were housed. 10

The conditions for detainees contrasted with the administration wing of the Detention Centre. This housed administration, medical and other facilities, including a very large kitchen and dining area for the workers and contractors. The dining area was cooled by large fans, and was noticeably cooler than the detainees’ camps. Within the administration area there were many air-conditioned units housing workers and contractors at the detention centre. Also, by this time, air-conditioned accommodation for hundreds of workers and contractors had been erected throughout Nauru for those living outside the detention centre.

I acknowledge that the program for building adequate facilities had been greatly impeded by the destruction caused by rioters on 19 July 2013, when recently completed, high standard (but not air-conditioned), facilities had been destroyed. That, however, could not excuse housing children in such grim conditions.

I told President Waqa that I was shocked by the conditions I had seen, especially those of the children. President Waqa said that he, too, was concerned about the situation. He said he was going to propose to “Tony Abbott” that the air-conditioned accommodation units that housed workers in the administration wing should be turned over to children of detainees (we did not discuss whether that extended to their parents). The workers, he said, could be accommodated away from the camp, in the main township areas. He said he hoped Tony Abbott would agree to this proposal.

I said that his proposal was an excellent step and I congratulated him for it.

I treated my discussions with the President as being confidential. Given that the conditions of the detention centre might be the subject of later litigation challenging the detentions on constitutional and human rights grounds I decided that it was appropriate that I assign Justice John Von Doussa to conduct any such litigation, rather than myself, so as to avoid any suggestion of pre-judgment by the trial judge. I advised the President of that decision.

I returned to Australia on 3 December 2013 and on 19 January 2014 the government unlawfully sacked and deported the Resident Magistrate and cancelled my visa, in circumstances discussed above.

I do not know if there have been any improvements to conditions since my visit. Insofar as the Human Rights Commission Report refers to incidents of physical, sexual and other abuse of detainee children, or adults, I have no information, and make no comment. My personal knowledge is limited to the physical conditions I observed.

Given the unrepented contempt for the rule of law exhibited by the Nauru government in removing me from office, I see no reason to maintain confidentiality of my discussions with the President. The dismissive remarks by Prime Minister Abbott 11

and others about the findings of the HRC make it appropriate that I do not maintain my silence.

Conclusion

The Australian Government, and the people of Australia have a very great interest in the stability of Pacific nations. The Rule of Law is an essential feature of democracy. Australia should be concerned about any undermining of democracy in the Pacific nations, especially in Nauru which was a former protectorate and where the Australian government provides such substantial funding and has great influence. In addition, the Australian government has consigned thousands of asylum seekers to Nauru and assured the world that their rights will be respected.

Geoffrey M. Eames AM QC

27 May 2015