The High Court: Only a Domestic Court?

By Rian Terrell

Rian is a 4th year Arts/Law student.

Most Australians would be familiar with Australia’s operation of regional processing centres on Nauru and Manus Island. What is less known, however, is that the High Court of Australia also exercises functions as an offshore appeals court for Nauru. This may change soon, however, with the Nauruan President pushing for the adoption of an entirely sovereign judicial system.

In a Parliamentary speech regarding a proposed amendment to Nauru’s constitution that would remove the appellate jurisdiction conferred on the High Court, President Baron Waqa stated that ‘[s]everance of ties to Australia’s highest court is a logical step towards full nationhood and an expression of confidence in Nauru’s ability to determine its own destiny’.* In 2001, the Australian Law Reform Commission also recommended termination of the arrangement. Instead, it suggested the instatement of other services, such as Australian judges sitting as additional judges in Nauru to assist the Nauruan Judiciary.**

However, such a change is not without opposition. Peter Law, a former Nauruan magistrate, suggested it was ‘…disappointing that they [the Nauruan government] would… try and set up something as an alternative to what little judicial accountability there is.’*

Image of Lady Justice.

President Waqa’s recent comments come after an increase in Nauruan cases being heard in the High Court. Last year, the Court decided three appeals from the Nauruan Supreme Court. It allowed two migration appeals, finding that in both cases the Nauruan Supreme Court erroneously decided that procedural fairness was afforded by the Refugee Review Status Tribunal in deciding applications for refugee status. In the third appeal, Cecil v Director of Public Prosecutions (Nauru), the High Court held that a criminal sentence was wrongly increased. Appeals in two other cases are also on foot, both involving appellants who challenged their unsuccessful refugee status determinations.

The High Court’s jurisdiction to hear appeals from Nauru is created by a combination of domestic and treaty law. The Nauruan Constitution authorises a court of another country to exercise appellate jurisdiction. Removal or amendment of this provision requires formal constitutional change. The jurisdiction to hear Nauruan appeals in the High Court is created by Nauruan and Australian legislation, underpinned by a 1977 treaty between the two nations. This arrangement was held to be constitutionally valid according to Australian law in 2005 in Ruhani v Director of Police, a significant case also concerning the validity of the Pacific Solution.

The High Court’s role is unique. Exercising this appellate function requires it to hear argument on and decide cases involving Nauruan law. This presents its complexities. Andrew Roberts identifies one of these complexities as the lack of clarity in what law the High Court is to apply, whether that be English, Australian, Nauruan, or an amalgam. Another difficulty is the requirement that the High Court must consider and apply Nauruan customary law. Roberts reports that the High Court has tended to apply Australian case law. The High Court’s procedures also differ when exercising its jurisdiction in Nauruan appeals. For example, appeals against criminal convictions lie as of right, so there is no need to obtain a grant of special leave, as is required for appeals within the Australian system.

The peculiarities of this jurisdiction, however, may be short-lived, depending on whether Nauru indeed decides to alter its constitutional arrangements to effectively remove this function of the High Court.

 

* Dateline Pacific, 2018

** (ALRC Report No 92)

Cartoon showing female figures with cowboy scarves and guns.

Peppercorn_ANU: The Hottest New Influencer

That’s right, it’s all out social media warfare! Peppercorn now has its own Insta, mostly so we can post amazing visual content, like this piece by Guy Exton, but also to keep you abreast of what all the cool, hip kiddos at ANU Law are doing ❤ Get rowdy, get writing!
Art: Guy Exton

 

 

President’s Farewell

Bryce Robinson

Welcome to the fourth and final edition of Peppercorn! It is with a heavy heart that I write my final little spiel as President (although I’m not going to lie, the concept of sleeping for more than five hours a night or never having to hear the now traumatising ding of yet another LSS email does seem particularly tantalizing at this point).

Taking this opportunity to reflect, I couldn’t be more proud of my Committee for their incredible dedication and hard work this year. Among the many highlights of this year have been the breathtaking expansion and diversification of our careers portfolio, our sexy new publications, an enormous overhaul of our constitution and regulations, the reinstatement of the International Students Director (who has absolutely hit the ground running), the inaugural Law
Market Day, spunky new merch, a jam-packed Wellbeing in the Law Week, and much, MUCH more. All of this has been in addition to our various high-quality events, competitions, panels, educational resources, and advocacy, which have continued to go from strength to strength.

That being said, we must always look forward and strive for continual improvement. We’ve got a long way to go in making sure that we acknowledge, include and support all members of the ANU Law community, but I’m confident that the new Executive and Committee will be up to the task.

As I draw to the close of my term, I am going to make an absolutely shameless plug for the LSS and tell you a few reasons why, despite having a free pass to step away from the Society, I plan to do anything but.

First is the reality that, in the legal world, your character and your reputation are important. By engaging with people and with activities beyond your required courses, you are showing yourself to be someone who is connected, driven, and passionate, which is something that stands out to your peers and prospective employers alike. It also has the added benefit of allowing you to make meaningful connections with people in your cohorts, the faculty, law
firms, government and various other organisations, all of which may prove to be very fortuitous at some point in your journey.

Secondly, it is an opportunity to see what the legal world looks like ‘from the inside’. Students come to law for a great diversity of reasons, but so often their ideas of what law is can be very different from what it entails in practice. By engaging with the legal profession via our various careers, social justice, education, competitions, social and wellbeing programs, you will come to have a much broader and deeper understanding of what working in the law might look like, in
all of its diverse manifestations.

Lastly, and perhaps most importantly, the LSS represents the very ‘human’ aspect of what can be a very challenging, and sometimes isolating, field of work and study. Sometimes, amidst the rigour and the pressures of studying law, it is easy to lose sight of what motivated us to pursue it in the first place. The activities of the LSS represent an opportunity to connect with each other, to find solace in the joint struggle, to keep our values in focus and to discover (or sometimes rediscover) our passions. I thank you all for engaging with the Society this year, and I can’t wait to see you all around next year.

Good luck for your exams, and have a marvellous Summer break!

Introducing the 2018 College of Law Representatives

A Little about your ANUSA College of Law (CoL) Representatives for 2018

Campbell Clapp
My name is Campbell Clapp, and I’m originally from Melbourne. I moved to Burgmann College at the start of 2016 to study Arts/Law at ANU – well, originally PPE/Law, but realised I don’t actually like Politics. I have been a part of the Law Students’ Society this year as one of the Careers’ Directors and went on First Year Law Camp
as a mentor this year. Working on the LSS was great, but I’m really excited to see a different side of student representation through ANUSA next year.

Angela Chen
Hi everyone! I’m Angela and I’m a third year Arts/Law student, originally from Sydney. I have tried and tested all the law societies and I’m so glad I did because I’ve really enjoyed being greatly involved in law school over the past three years. Running events for you all has been so fun, but after helping the International Law
Society advocate for the 2016 International Law course to be changed, I discovered that what I was more interested in was the policy making and changing side of student representation. I hope me and my awesome sidekick Campbell will bring you an improved and more enjoyable law school experience in 2018!

What do CoL Reps do on ANUSA?
CoL Reps act on behalf of the undergraduate law student body and sit on the College Representative Council, where Representatives from each Academic College meet regularly throughout the year and discuss changes to the academic side of university and how they impact students. Colleges come together to discuss certain issues that are not going well and how they might improve them. They also share techniques that they have implemented and found helpful in order to assist the efficiency of other Colleges who are struggling with a
similar issue.

We are a source of information and a point of contact, so students can come to us with any questions about law school or when they come across a problematic issue with their degree or the College of Law. We act as an advocate to the administration, and are the main organisers of first year law camp. As CoL Reps, we also sit
on the College Education Committee alongside the LSS President and Vice-President (Education) and the PARSA CoL representatives, and represent students’ opinions on any changes to curriculum or policy that the college is hoping to institute.

Policy Goals for 2018
What we are hoping to achieve in our time as CoL Reps is to work with the societies within the law school to make sure that we are creating good resources and events for students and offering them as much support to students as possible.

In 2018, we also hope to:

  • Look at how law student wellbeing is impacted by different policies and practices, and attempt to implement changes both through the College itself and through what Law Societies have to offer to minimise mental ill health.
  • Advocate for better exam timetabling, a longer STUVAC period, and fairer assessment review with a
    more supportive appeals process.
  • Begin consultation with the ANU College of Law and the whole law student cohort on including an Indigenous Australian compulsory course or an Indigenous Australian learning component/assessment in relevant law courses.
  • Increase the approachability of CoL Reps.