Nauru and the Rule of Law

1 Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru 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 Baron Waqa 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 David Adeang, 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, Charmaine Scotty 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.

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