Smuggled By Boat, Banished By Plane And The Decision Over Your Life A Hot Potato
By Bernard LaganSeptember 20, 2012
Asylum seekers who make for Australia by boat are now to be sent to Nauru for processing. And how, exactly, is that going to work legally — or not?
As Chief Justice of the world's smallest republic, Geoffrey Eames, does not enjoy the feting, nor the rewards that commonly come to those judges at the top. The Melbourne-based silk must travel 4,700 kilometres to his jurisdiction — the tiny island state of Nauru in the Pacific. Nauru makes a contribution of around $60,000 to the income of two judges, presiding over a belt-and-braces judicial system on the island that struggles to operate on a budget of less than $300,000. The latest Nauru Judicial Annual Report candidly observes: "Delays and poor performance are therefore inevitable in this kind of scenario."
Eames attained national prominence as a 21-year-old law student when he appeared on the steps of the Victorian Parliament one night in 1967 wearing a gown, holding a candle and placard depicting a noose, to protest the imminent death of Ronald Ryan, the last man to be executed in Australia. The Victorian barrister has often trod the law's more trying paths; he spent years representing Aboriginal people in Central Australia and later served on the long-running Aboriginal-deaths-in-custody inquiry. On Nauru his cases are not questions of high constitutional law; his latest published sentencing decision concerned the tawdry case of a couple who had threatened with a knife and then raped their niece, who had sought protection in their home from her violent boyfriend.
Despite the efforts of the offshore Chief Justice, Nauru's legal system struggles mightily to deliver even the most basic of services to the island's 9,400 people; it suffers, according to the annual report, from a lack of proper record-keeping, basic office equipment and what, it confesses, is a lax attitude of staff toward their work. It is into this legal system that the Australian government is placing the futures of the hundreds of asylum seekers, whom it is transporting to the hastily erected camps on Nauru for offshore processing.
Although seen as the revival of the Howard government system for dealing with boat people, this time around it will be the Nauruan government — not Australia — which will be responsible for determining who is a refugee — and who is not. These are life-changing deliberations; refugees will be eligible for resettlement in a new country — possibly in Australia. Those denied refugee status will be packed off back to Afghanistan, Iran or wherever it was they fled to make a perilous boat journey to Australia.
The burning question that remains unanswered amid the Australian government's frantic efforts to stem the tide of boat people by portraying the barren landscape of a 21-square-kilometre Pacific Island as their likely destination, is how will refugee assessments be conducted by an impoverished Nauru under its own laws? And how — and to whom — will those denied refugee status on Nauru appeal their decisions? Nauru is a country with the barest of experience and expertise in investigating the credentials of those claiming asylum, and no institutions equipped to do the work.
And, despite Nauru's decision last June to ratify the UN refugee convention — thus recognising its legal and humanitarian obligations to protect refugees — there is no evidence, according to Australian lawyers familiar with its statutes, that Nauru's Parliament has even got around to amending its immigration laws to provide for refugee determinations — or even to be able to issue Nauruan visas to those deemed refugees.
It is becoming clear that Nauru expected — when it agreed to Australia's request that the offshore processing centre be re-opened — that asylum seekers now being flown in from Australia would have their claims for refugee status determined under Australian law, with its attendant access to legal advice and the possibility of access to Australian Courts to appeal decisions that went against them.
Nauru's Foreign Minister, Dr Kieren Keke, told the ABC's Leigh Sales on September 11, when she asked whether the asylum seekers flown to Nauru would have access to Australian courts and lawyers: "They will certainly have access to support, legal advice and advocacy; [to] guidance and advice to them on how to deal with the processing and their claims for asylum. Under which jurisdiction that will occur? I understand it will initially be Australia. That's an area we are also continuing to explore."
But three days later — on September 14 — Dr Keke suddenly changed tack, telling ABC Radio: "Look, there has been a lot of discussion about the legal obligations in the arrangement. We are comfortable with the responsibilities that Nauru is taking on. We are very comfortable with the commitments from Australia to support us. We do, however, now have a clear understanding that the assessments and processing and determinations of asylum will be made by Nauru under Nauru law. So that's a significant change but it is something we are comfortable with and that has been worked out in co-operation with Australia."
Dr Keke gave no reason for Nauru's sudden change of course. A likely possibility is that Australian officials had quickly intervened; the significance of the refugee assessments being conducted in Nauru under Nauruan law is of course that the asylum seekers will have no rights to apply for Australian refugee-protection visas. Only asylum seekers who are in Australia can apply for them. Secondly, by ensuring that the asylum seekers are assessed under Nauru's laws, the Australian government avoids having to give them any access to Australian Courts to challenge adverse refugee assessments. Thirdly, Australia's obligations to re-settle refugees processed in Nauru are likely to be diminished compared to the obligations that would apply if they had been processed under Australian law.
There is high probability that most of the asylum seekers being sent to Nauru will be found to be genuine refugees in need of protection; when the Howard government operated its offshore processing centres on Nauru and Papua New Guinea's Manus Island — before the Labor government shut them down in 2007 — almost two-thirds of those seeking asylum were found to be genuine refugees.
In the view of the leading Melbourne barrister and long-time refugee advocate Julian Burnside QC, there is a more sinister reason for the Australian government wanting to avoid giving the Nauru asylum seekers access to Australian Courts. Burnside says: "We know from Pacific solution Mark I [the Howard's government's offshore processing policy] that the assessment process was just appalling. It was desperately unfair. Now they don't want any new assessments to be amenable to the [Australian] courts."
Australia's Minister for Immigration, Chris Bowen — in the 21 press conferences and radio and television interviews he's given since the government announced on August 13 that it would re-open the Nauru offshore processing centre — has been circumspect on the central question of how the refugee-assessment process will work on Nauru. At a Canberra press conference on Tuesday, September 18, he did confirm that an in-principle agreement had been reached for the refugee processing to occur under Nauru's laws.
Asked if those denied refugee status would have access to Australian courts to appeal, Mr Bowen again stayed circumspect — but did shut out that possibility. He referred questioners to the report of the government's Expert Panel on Asylum Seekers (which recommended the re-opening of the Nauru and PNG offshore processing centres), saying the government would put in place the report's recommendation for an appeal mechanism comprised of "more senior officials and NGO representatives with specific expertise". The report does not say whether those officials will be from Nauru or Australia. Nor did Mr Bowen say whether those denied refugee status would have any access to the Nauru legal system to appeal.
The Australian government's intention, to exclude the asylum-seekers it is sending to Nauru from the Australian legal system, troubles the United Nations High Commission for Refugees, the world's principal protector of refugees. The organisation's regional representative in Canberra, Ric Towle, told The Global Mail:
"We have yet to see any details on how the processing of asylum claims in Nauru will be carried out, and by whom.
"UNHCR welcomes the accession of Nauru to the Refugee Convention last year. However, at present, Nauru has no domestic legal framework under which requests for refugee protection can be made, nor does it have any experience or expertise in processing asylum seekers on the scale and complexity of the arrangements under consideration.
"For these reasons, it is not clear that the purported transfer of legal responsibilities for asylum seekers from Australia to Nauru is fully appropriate."
Also worried about Nauru's capacity to conduct a proper assessment of those seeking refugee status is the Australian Human Rights Commission. The commission's president, the legal academic and barrister Gillian Triggs, has said: "There is no information as to how prepared Nauru is to process the claims and it is unclear whether those transferred to Nauru will have access to legal advice."
In the view of international migration law experts, Australia will want to distance itself as far as possible from the processing of the refugee claims of those it sends to Nauru (and later to PNG). Speaking to the ABC this week, the former dean of the Melbourne University law school, Professor James Hathaway, said: "If in fact Australia ends up doing the work of processing on Nauru, we should be clear that this then means the refugees remain under [Australian] jurisdiction and they are as much an Australian responsibility as if they were sitting in Federation Square in Melbourne, as a matter of international law."
So how will Nauru and Australia deliver on their international obligations to have the asylum seeker claims assessed? And how will they do that in a way that avoids exposing Australia to legal challenges which might claim it is really running the Nauru operation and is therefore responsible for the asylum seekers' re-settlement?
A clue to these questions lies buried within the raft of supporting documents that the Immigration Minister, Chris Bowen, put before Parliament two weeks ago in support of the re-opening of the Nauru camps. Nauru has agreed, according to the documents, to permit Australian officials to carry out the assessment of the asylum seekers' refugee claims.
This fix was not unexpected by Julian Burnside, who has had much experience acting for asylum seekers who were sent to Nauru when the Howard government first opened that Nauru offshore processing centre in 2001.
Says Burnside: "What's interesting is that if the Pacific solution, Mark II, is anything like Pacific solution Mark I, then Nauru will just be a puppet doing whatever Australia tells it to do. The people doing the processing will be Australians in the guise of Nauruan immigration officials. It will be an entirely Australian operation but under the legal pretence that Australia has got nothing to do with it. And that troubles me a bit."
The Australian government is clearly awake to the possibility that it might yet be exposed to a legal challenge to the revived Nauru operation, on the grounds that it contravenes Australia's international obligations to asylum seekers. The documents Bowen presented to Parliament admit that Australia's actions on Nauru "are contestable". But the documents also make clear that even if the Nauru operation is found to breach Australia's international obligations, the Australian government will argue its national interests in stemming the boat arrivals take precedence over its obligations to asylum seekers.
Bowen asserts in the documents: "However, even if the designation of Nauru to be a regional processing country is inconsistent with Australia's international obligations, I nevertheless think that it is in the national interest to designate Nauru to be a regional processing country."
The University of New South Wales legal academic and constitutional law expert Professor George Williams considers it possible that a High Court challenge to the Nauru operation might be brought, on the basis that it is Australia — and not Nauru — which is in effective control of the re-opened asylum seeker processing centre.
He says: "An argument might be put that even though it's happening in that country, it's really our responsibility and so you might get in [to the High Court of Australia] through that route."
It is the same argument that was successfully put to the US Supreme Court in 2004, when the right of the US military to indefinitely hold the Australian David Hicks and others at Guantanamo Bay, in Cuba, was challenged on the basis it was unconstitutional. The American government argued that US courts had no jurisdiction to hear the case because prisoners were being held in territory — Cuba — over which the US did not have sovereignty. But the US Supreme Court rejected that claim. It instead held that the degree of control exercised by the US over Guantanamo Bay meant that US courts did have jurisdiction.
You may wonder why Nauru so readily agreed to Australia's request to re-open an offshore processing centre for asylum seekers, the answer lies in Nauru's own precarious economic state. A decade ago, after the island's lucrative phosphate mining industry petered out because the mineable phosphate was virtually exhausted Nauru literally ran out of money. It went from being the second-richest country in the world, per capita, to being among the poorest. Civil service wages went unpaid, the national airline virtually closed down and thousands of people reverted to subsistence living.
Australia's immigration detention centre was a lifesaver for Nauru when it opened in the midst of waves of boats heading for Australia. Australia's spending on the centre accounted for 20 per cent of Nauru's gross domestic product (GDP).
Since the centre closed in 2007, Australia has bolstered its aid to Nauru; it now runs to $31.6 million a year through AusAID. But Nauru, even with phosphate revenues flowing again, plus dollops of cash from both China and Taiwan, needs the jobs, infrastructure and economic activity that the re-opening of the offshore processing centre will bring. For Nauru, operating the centre is likely to be lucrative; Australian immigration officials have calculated that the Nauruan detention facility will require $2 billion over four years to house just 750 people. The government plans are eventually to hold 1,500 asylum seekers on Nauru.
For now, Nauru's Chief Justice, Geoffrey Eames, does not want to talk about what his role may or may not be in the appeal process that will be set up on Nauru for those denied refugee status.
"It's not appropriate that I make any comment on these matters," he said this week.
It seems that as Nauru fills with asylum seekers, we all have to await details from Australia as to how they will be dealt with under Nauru's laws.
That includes Nauru's Chief Justice.
The original version of this story was amended on September 28 to reflect the following correction in the paragraph concerning Justice Eames's remuneration.
Dear Mr Lagan
The figure you quoted comes from the 2009-10 annual report when Robin Millhouse QC was Chief Justice. He was also full time, resident, Chief Justice in Kirabati but sat on occasional circuits in Nauru. I believe his per diem was quite low and the Chief Justice position in Nauru was vacant for most of 2010.
I am paid a per diem for the days I sit in Nauru and for work done from home. To date, either myself or Justice Von Doussa have sat a total of four times a year, for periods from 10 to 17 days. I don’t have the figures in front of me but I think the total per diem charged in 2011-2012 would have been about $60,000, probably less.
And also, at Inside Story, read legal academic Savitri Taylor’s close look at the differences in the agreements signed between Australia and PNG and Australia and Nauru.
Read more The Global Mail coverage of Australia's asylum-seeker policies, including a response to Julie Bishop's call to send back Sri Lankan arrivals; the Immigration Department's ducking and weaving around FOI requests; and an argument that our laws aren't stopping the boats — they're pushing people onto them.