Publication
Appealing to Whom? Australia's ‘Appellate Jurisdiction’ Over Nauru
Publisher:
Cambridge University Press (CUP)
Date:
07-2007
DOI:
10.1093/ICLQ/LEI186
Abstract: A peculiar and unique agreement exists between Australia and Nauru, which has ensured that, since 1976, appeals may be brought from the Supreme Court of Nauru, an independent Republic, to the High Court of Australia by virtue of a bilateral treaty 1 and statutes of the respective Parliaments. 2 In 1998 and 1999 two High Court judgments left a question mark hanging over the constitutional validity of this appellate scheme. 3 Furthermore, in 2001, the Australian Law Reform Commission (ALRC) expressed the view that Australia should terminate the agreement as the arrangement was of no perceived ‘utility’ to Australia. 4 For 29 years only two rather trivial cases were appealed from the Supreme Court to Australia's High Court. 5 In 2005 a much more significant case, Ruhani , 6 was appealed from Nauru to Australia. The case was not only significant in that it concerned the validity of the so-called ‘Pacific Solution’, which involved Australia holding asylum-seekers offshore in Nauru for the processing of their refugee claims, but it also raised doubts about the desirability of the offshore municipal model of foreign appeals. This article examines the latter of those issues, intending to demonstrate that the model of foreign appeal adopted in the Nauru Treaty is a compromised version of appeal in comparison with the other two more common models.