Nauru Legal Sources

Nauru Legal Sources Peter H. MacSpo"an Solicitor, Black Rock, Victoria Law Library Resources in Nauru When I first went to Nauru as Senior Legal Officer in October 1970, I found a department with a very small library and a Court with nothing.. Indeed, my own set of ALJ and various texts exceeded the departmental library.. That changed quite quickly as the new Chief Justice, Ian Thompson, began to make his presence felt Between us we laid the basis for a comprehensive collection. He concentrated on getting law reports and an air-<:onditioned room for the collection while I, in the department, concentrated on texts and legislation.. In a very short time the Supreme Court Library (which was then under the day to day supervision of Brian Bousfield, Resident Magistrate and Registrar of the Supreme Court) was built up from nothing to an impressively comprehensive source of law reports and legislation. We obtained a full set of the Law Reports and the English Reports, the All England Reports, Commonwealth Law Reports, Victorian, Queensland, Western Australian and New Zealand Law Reports. In addition we acquired Halsbury' s Laws and Statutes of England, the English and Empire Digest, and the Criminal Law Journal In the department we commenced to build up our· international law texts and reports and obtained as much as possible in connection with aviation, crime, banking, companies, civil procedure and so on .. Today the pictur·e is not as happy as it was. For reasons which are none too clear, the library sometime recently ceased to be supplemented with new volumes and it seems that subscriptions have lapsed leaving law reports lost and forlorn at about 1988 and texts often well out of date (although, to be fair, it is clear that since I lived and worked there much had been done to improve the range and depth of text material in the Department).. The present Chief Justice, Sir Gavan Donne, has become aware of the deficiencies and is attempting to remedy it, while the Department, under William Halm, is moving to update its texts .. The Chief Justice is exploring the computerisation of court work and facilities including the availability of CD ROM law reports and scanning technology. Some Aspects of Nauruan Law The initial "library building" activity took place during two years of extremely active and sustained law revision .. Mr Justice Thompson worked, seemingly tirelessly, to not only update a mass of law which was out of date, but make new law for the recently independent country .. Much of the existing law was positively archaic .. Thus the law on divorce was that of Papua in 1910 and many such laws were not ouly inappropriate, but also inaccessible.. Indeed the laws of Nauru printed in Nauru 18 itself were not partiCularly accessible and a volume of laws printed in 1966 for the Territory of Nauru by the Australian Government Printer was very scarce indeed and is now even more so., The most important and far reaching change effected by the law revision process was the Custom and Adopted Laws Act of 1972 which all but replaced the Laws Repeal & Adoption Ordinance which went back to 1922. While the Ordinance had its genesis in the desire to abolish the last vestige of the previous German administiation and adopt some legislation from Austialia and its territories (and lay largely unchanged for the next 50 years), the new Act sought to bring Nauman law into the modern world., This was done by providing as the basic structwe underpinning the specific legislative framework, the common law and the principles of equity of England as in force at 31 January 1968.. In addition, as a way to achieve innnediate cover of areas which were important but not likely to be covered in the legislative program (at least for the foreseeable future) a most unusual strategem was adopted,. This consisted of adopting as law of Nauru all the statotes of general application in England which were NOT subsumed by chapter headings of Ha/sbury' s Statutes listed in a schedule to the Act The laws which thus applied would apply with appropriate variations as necessary to the circumstances of Nauru., Ihis answers the question "why on earth would a Nauman law library want the statutes of England?" We wanted them because without them we would not know the full extent of what laws apply,, This is not altogether as easy as may be imagined for in any issue the first question is "Is there a Nauruan statute on the point?", The next question is "Is the subject covered by statute in England, and if it is, under what heading and is that heading listed or not in the Act?" Once settled that there is an applicable English statute the question arises of interpretation. Can it apply? Who are the officials to apply it? What changes need to be implied to make it work? Examples of applicable statutes are those dealing with bills of exchange, tiusts and tiustees and gaming, It is far from easy to work out how they apply to Nauru. The latter two subjects are complicated by the fact that Nauruan statutes cover part of the suqject matter One of the most useful and interesting events in recent years for N auruan law was the Commission of Inquiry into the Rehabilitation of the Worked-out Phosphate Lands of Nauru chaired by Prof Weeramantiy, now a Judge of the International Court of Justice .. That inquiry was most fruitful in its identification of previously unknown sources of law from the German period., While it was always obvious that some German laws must have had application to Nauru, and to some vestigial extent possibly still did in the preservation of rights acquired under those laws, no one appeared to have done anything to find out what the law had been., That job was done by Dr Peter Sack, an historian whose identification of the German laws, particularly the mining laws, played an important part in the Commission's final report and are discussed in Mr Justice Weeramantiy's book Nauru (OUP, 1992)., How far the German law may be of any contemporary relevance is a moot point, but for the legal historian it is a vital link in the evolution of Nauru's legal system 19 The Sources of Nauruan Law N auruan law is found in four places: the Constitution, legislation, custom, and adopted law. The interpretation of that law is found in the judgments of the Supreme Court of Nauru and, where applicable, in the decisions of Courts in common law jurisdictions.. In the past, considerable authority had been placed upon the decisions of the High Court of Australia in general and in criminal law the Supreme Courts of Queensland and Western Australia (the Queensland Criminal Code as it was at 1 July 1921 has been in force since 1926) Court decisions Despite the fact that in all cases except those involving interpretation of the Constitution and customary law, appeal lies to the High Court of Australia, the decisions of that Court have lost much of their force. This has come about by the adoption of English statute law and by the freezing of common law and equity in 1968.. Although it is possible for the Supreme Court of Nauru to take note of and apply movements in the common law and equity since 1968, it is for that court to decide whether or not to do so is appropriate to the circumstances of Nauru .. One effect of this has been the refusal in at least one case to follow the High Court and stick with the English courts. So the Supreme Court refused to follow the High Court's widening of estoppel in Walton Stores (Interstate) Ltd v .. Maher. The decisions of the Supreme Court of Nauru are not very accessible. Mr· Justice Thompson, as he then was, edited a number of decisions and published them in a four part volume of Nauru Law Reports .. The volume consists of A4 typewritten pages divided into four separate parts - an index, criminal cases, civil cases and land appeals. These reports date back to 1969 and finish in 1982 Since that time some of the decisions of the Supreme Court have been published in the volumes of Law Reports of the Commonwealth and more lately the South Pacific Law Reports, but these tend to be matters of general interest and do not as yet, I believe, constitute a representative sample of decisions of the Court. The end result is that some precedent is only available to those who know enough to ask and even then only if copies are still available at the office of the Registrar .. Custom The somce and content of custom is something with which it is very difficult to come to grips .. To an "outsider" it appears that much of what may have been customary has altered considerably with the "westernization" of the culture and some new customs have been adopted from other island cultures which were not, histmically, part of Nauruan culture. The principal difficulty in tracking down custom is that there are no written sources emanating nom Nauruans. It is from anthropologists, principally the German, Harnbruch, that the most detailed descriptions of Nauruan custom can be found although some later work is of interest and value. To date little use has been made of this as a source of information about customary law, particularly in relation to land and inheritance, presumably because of it being in German with little available in English translation. 20 However evidence of title to land as found in the German Grundbuch has been used in the courts, it being accepted that the German authorities carried out a very comprehensive and reliable registration of land ownership .

Load more