The Problem
On 6 September 1976, the Government of Australia and the Government of the Republic of Nauru signed an agreement relating to appeals to the High Court of Australia from the Supreme Court of Nauru (‘the Agreement’). (A full copy of the Agreement is found in the Schedule to the Nauru (High Court Appeals) Act 1976 (Cth) (‘the Australian Act’).)
Article 1 of the Agreement provides that appeals are to lie to the High Court of Australia from the Supreme Court of Nauru in certain categories of criminal and civil matters. Article 2 of the Agreement provides that an appeal is not to lie to the High Court of Australia from the Supreme Court of Nauru in a number of matters, including ‘where the appeal involves the interpretation or effect of the Constitution of Nauru’ (Art 2(a)).
Australia and Nauru have enacted complementary legislation giving effect to the Agreement: the Australian Act and the Appeals Act 1972 (Nr) (‘the Nauru Act’). (Copies of Nauru legislation can be found at http://ronlaw.gov.nr.)
Fatima is a female asylum seeker from Pakistan. She claimed that she faces a real chance of harm in Pakistan because of her sex. The harm she feared was from the extensive extended family of her ex- husband, who she left because he was physically abusive to her and their child.
The Nauru Refugee Status Review Tribunal rejected her application for asylum.
Fatima challenged the Tribunal’s decision before the Supreme Court of Nauru. A challenge to a decision of the Tribunal is a civil matter. The two bases for her challenge were that the Tribunal’s decision was based on a misinterpretation of:
1. The Convention on the Elimination of All Forms of Discrimination against Women 1979 (‘CEDAW’); and ?
2. The Constitution of Nauru. ?
In relation to the first basis, Fatima alleged that the Government of Nauru is prohibited from returning her to Pakistan under Article 2(d) of CEDAW, which states:
2. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
…
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
…?Nauru is a State Party to CEDAW.
The Supreme Court of Nauru concluded that CEDAW does not require Nauru to grant asylum to Fatima, even though it accepted she would be seriously harmed on return to Pakistan because she is a woman.
In relation to the second basis, Fatima alleged that the process for assessing her asylum claim was unfair because she was being unlawfully detained in Nauru in violation of s 5 of the Constitution of Nauru at the relevant time. Section 5 of the Constitution of Nauru prohibits a person from being detained except, inter alia, ‘for the purpose of preventing his unlawful entry into Nauru, or for the purpose of effecting his expulsion, extradition or other lawful removal from Nauru’. The Supreme Court of Nauru dismissed her challenge on this basis.
Fatima then sought to appeal the decision of the Supreme Court of Nauru to the High Court of Australia pursuant to the Australian Act and the Nauru Act.
The respondent, the Republic of Nauru, submitted that the decision of the Supreme Court of Nauru was plainly wrong in respect of the Constitution of Nauru and that they would not defend that aspect of the decision, but sought to defend the decision in respect of CEDAW.
The High Court of Australia considered Fatima’s case. The High Court concluded that it could not determine the appeal because it involved the interpretation or effect of the Constitution of Nauru.
Fatima also believes that the detention conditions to which she was subject were in breach of Nauru’s obligation under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (‘CAT’).
A Judge of the Supreme Court of Nauru is due to retire in July 2017. The President of Nauru wishes to appoint a judge from another country to bolster the international reputation of the Court. The President would like to ask Justice Smith, a Judge of the Federal Court of Australia, if she would be willing to sit on the Supreme Court of Nauru. Justice Smith meets the criteria to sit on the Supreme Court of Nauru set out in Article 49(3) of the Constitution of Nauru.
You have been asked to advise Nauru’s Minister for Justice on the following matters.
