Hostname: page-component-cd9895bd7-dk4vv Total loading time: 0 Render date: 2024-12-26T06:37:52.305Z Has data issue: false hasContentIssue false
  • English
  • Français

Appealing to Whom? Australia's ‘Appellate Jurisdiction’ Over Nauru

Published online by Cambridge University Press:  17 January 2008

Gregory Dale
Get access Rights & Permissions [Opens in a new window]

Extract

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 treaty1 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.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 56 , Issue 3 , July 2007 , pp. 641 - 658
Copyright
Copyright © British Institute of International and Comparative Law 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Agreement between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (opened for signature 6 09 1976, entered into force 21 03 1977) 1216 UNTS 151; 1977 Australian Treaty Series (ATS) 11 (hereafter ‘Nauru Treaty’).Google Scholar

2 Nauru (High Court Appeals) Act 1976 (Cth)Google Scholar; Appeals Act 1972 (Nauru).Google Scholar

3 Australian Law Reform Commission (ALRC), The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, (Report No 92, 2001) [19.19]–[19.20].Google Scholar

4 ibid [19.18]–[19.19], [19.25]–[19.29].

5 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627Google Scholar; Amoe v Director of Public Prosecutions (Nauru) (1991) 103 ALR 595.Google Scholar

6 Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutor) (2005) 222 CLR 489Google Scholar; (2005) 219 ALR 199Google Scholar; [2005] HCA 42 (hereafter ‘Ruhani’)Google Scholar; Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutor) (No 2) (2005) 222 CLR 580Google Scholar; (2005) 219 ALR 270Google Scholar; [2005] HCA 43 (hereafter ‘Ruhani (No 2)’).Google Scholar

7 Susan, Boyd, ‘Australian judges at work internationally: Treason, assassinations, coups, legitimacy of government, human rights, poverty and development’ (2003) 77 Australian LJ 303, 306.Google Scholar

8 Namely, Tonga, Solomon Islands, Fiji, Vanuatu, Tuvalu, Kiribati, and Samoa have Courts of Appeal that are composed of three judges, at least one of whom is an expatriate. For more detail see also Boyd, (n 7), 305–6.Google ScholarSee also Justice and Electoral Committee, New Zealand House of Representatives, Supreme Court Bill (2003) 54–5 (Table 7).Google Scholar

9 Constitution of Botswana, s 100(3)(a). See also Robert, Verkaik, ‘Murderer in ‘White Mischief’ Case to Hang’, The Independent (London, 31 01 2001) 15 (Foreign News).Google Scholar

10 Sir Anthony, Mason, ‘Reflections of an Itinerant Judge in the Asia-Pacific Region’ (2000) 28 Intl J of Legal Information 311, 322.Google Scholar

11 See Ibralebbe v R [1964] All ER 251, 259Google Scholar, as cited in Fawcett, JES, ‘The Judicial Committee of the Privy Council and International Law’ (1967) 42 British Ybk of Intl L 229.Google Scholar

12 However, some have doubted whether the term ‘supranational’ is apt when referring to the Caribbean Court of Justice: Pollard, Duke E., The Caribbean Court of Justice: Closing the Circle of Independence (Caribbean Law Publishing Co, Kingston, 2004) 179.Google Scholar

13 However, to date only two countries have ratified provisions regarding the appellate jurisdiction of the court: namely Barbados and Guyana: The Constitution (Amendment) Act 2003Google Scholar, and The Caribbean Court of Justice (Amendment) Act 2003 (Barbados)Google Scholar; Caribbean Court of Justice Act 2004 (Guyana).Google Scholar The European Court of Justice cannot be characterised as a supranational court of appeal because the preliminary ruling procedure under art 234 of the EC Treaty does not demote the national courts below the ECJ. Instead, national courts seek guidance from the ECJ over matters regarding EC law, and this can hardly been seen as correcting errors of the lower courts: see David, Anderson, ‘The Law Lords and the European Courts’ in Le Sueur, Andrew (ed), Building the UK's New Supreme Court: National and Comparative Perspectives (OUP, Oxford, 2004) 201–2.Google Scholar The same can be said for the European Court of Human Rights.

14 Revised Agreement Establishing the Caribbean Court of Justice Fund.

15 See further Swinfen, David B, Imperial Appeal: the debate on appeal to the Privy Council, 1833–1986 (MUP, Manchester, 1987) 178–220.Google Scholar

16 See Geoffrey, Robertson, The Justice Game (Chatto & Windus, London, 1998) 100Google Scholar; Boyd, (n 7) 306.Google Scholar

17 David, Simmons, ‘Issues of Judicial Independence in the Caribbean Court Room’ (2001) 14 Commonwealth Judicial J 8, 13.Google Scholar

18 Justice and Electoral Committee, New Zealand House of Representatives, Supreme Court Bill (2003), 11–12.Google Scholar

19 eg the Privy Council's position within the Jamaican judicial hierarchy is ensured through the Constitution of Jamaica, s 110.

20 Megan, Richardson, ‘The Privy Council and New Zealand’ (1997) 46 ICLQ 908, 912–13Google Scholar; Robyn, Martin, ‘Diverging Common Law: Invercargill Goes to the Privy Council’ (1997) 60 MLR 94.Google Scholar In 2003, New Zealand ended appeals to the Privy Council and established its own Supreme Court.

21 [1994] 2 AC 1 (hereafter ‘Pratt’).Google Scholar

22 Pratt [1994] 2 AC 1 at 17.Google Scholar

23 Pratt, at 22. See also Helfer, Lawrence R, ‘Overlegalizing Human Rights: International Relations Theory and the Commonwealth Backlash Against Human Rights Regimes’ (2002) 102 Columbia L Rev 1832, 1869.CrossRefGoogle Scholar

24 Helfer, (n 23) 1869.Google Scholar

25 Pratt, at 30.Google Scholar

26 Constitution of Jamaica s 17(1); Pratt, at 33.Google Scholar

27 Pratt, at 35 (my emphasis).Google Scholar

28 Helfer, (n 23) 1888–91.Google Scholar

29 David Simmons rebuked such suggestions: see Peter, Gregory and Fergus, Shiel, ‘Remarks outrage Caribbean judges’, The Age (Melbourne, 15 04 2003) 4.Google ScholarSee also Kirsty Brimelow, ‘A shadow of death hangs over Jamaica and its criminals’, The Times (London, 17 10 2006) 4 (Law).Google Scholar

30 Simmons, , ‘The Caribbean Court of Justice: A Unique Institution of Caribbean Creativity’ (2005) 29 Nova L Rev 171, 175.Google Scholar

31 Kenneth, Handley, ‘The Constitutional Crisis in Fiji’ (2002) 5 The Judicial Rev 287, 287.Google Scholar Similarly, Non-Permanent Judges of the Hong Kong Court of Final Appeal are appointed on three-year terms: Hsu, Berry F.C. ‘Judicial Independence Under the Basic Law’ (2004) 34 Hong Kong LJ 279, 297.Google Scholar

32 Simmons, (n 17) 12Google Scholar; Dorothy, Lightbourne, ‘A Leap into the Dark’ in Delano, Franklyn (ed), We Want Justice: Jamaica and the Caribbean Court of Justice (Ian Randle Publishers, Kingston, 2005) 108–9.Google Scholar This is a troubling prospect in small states where the appointment of acting judges can be dependent on the whim of an individual eg. Under the Constitution of Nauru, Art 53, an acting judge may be appointed and dismissed by the President of Nauru alone.

33 See, eg, Forge v Australian Securities and Investment Commission [2006] HCA 44 at [220]–[222] (Kirby, J)Google Scholar; Justice Michael, Kirby, ‘Independence of the legal profession: Global and regional challenges’ (2005) 26 Australian Bar Rev 133, 140–1.Google Scholar

34 George, Williams, ‘The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji’ (2001) 1 OUCLJ 73.Google Scholar

35 ibid.

36 ibid.

37 ibid.

38 Prasad v Republic of Fiji Islands [2001] NZAR 21Google Scholar; [2000] FJHC 122 (High Court of Fiji).Google Scholar

39 Republic of Fiji Islands v Prasad [2001] NZAR 385Google Scholar; [2001] FJCA 2 (Court of Appeal of Fiji).Google Scholar

40 Handley (n 31).

41 Mason, (n 10) 316.Google Scholar

42 Ian, Brownlie, Principles of Public International Law (6th edn, OUP, Oxford, 2003) 75Google Scholar, Crawford, (n 55) 31–2.Google Scholar

43 Supreme Court Act 2003 (NZ) s 3(1)(a)(i).Google Scholar

44 Reid, Alan S. and Nick, Ryder, ‘Death of the Privy Council: Exaggeration or Stated Fact?’ (2001) 14 Commonwealth Judicial J 32, 36.Google Scholar

45 New Zealand, Parliamentary Debates, House of Representatives, 14 Oct 2003, 9112 (Richard Worth).

46 Justice Robert, French, ‘Judicial exchange: Debalkanising the courts’ (2006) 15 J of Judicial Administration 142, 142.Google Scholar

47 ibid.

48 This is just one of such bodies. Others include, eg, the Inter-American Court of Human Rights.

49 Optional Protocol to the Convention on Civil and Political Rights (opened for signature 19 12 1966, entered into force generally 23 03 1976; entered into force in Australia 25 12 1991; entered into force in Nauru 12 11 2001) 999 UNTS 171Google Scholar; [1991] ATS 39Google Scholar, Art 5(2)(b) (hereafter ‘Optional Protocol’).

50 Natalie, Schiffrin, ‘Jamaica withdraws the right to individual petition under the International Covenant on Civil and Political Rights’ (1998) 92 The American J of Intl L 563, 566–7.Google Scholar See Helfer (n 23) who advances three theories as to why Jamaica withdrew from the Protocol.

51 Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos Representación Regional para América Latina y el Caribe (2005) Compilación de observaciones finales del Comité de Derechos Humanos sobre países de América Latina y el Caribe (1977–2004), Caudro II.2 ‘Estado de Ratificaciones del Protocolo Facultativo del Pacto International de Derechos Civiles y Politicos en America Latina y el Caribe’, 49: Guyana decided to denounce the Optional Protocol, only to re-accede on the same day; Jamaica denounced the Protocol on 23 Oct 1997; and Trinidad and Tobago denounced the Protocol on 26 May 1998 and then re-acceded on 27 Mar 2000, only to denounce the Protocol again with effect from 27 June 2000.Google Scholar

52 Office of the United Nations High Commissioner for Human Rights, ‘Optional Protocol to the International Covenant on Civil and Political Rights New York, 16 December 1966’ (2006) <http://www.ohchr.org/english/countries/ratification/5.htm> accessed 26 January 2006+accessed+26+January+2006>Google Scholar; see generally Helfer, (n 23) 1881–2.Google Scholar

53 ibid. Notably, Finland and Sweden expressed regret to such a reservation.

54 Stephen, Vasciannie, The Privy Council versus the Caribbean Court of Appeal: some general observations (Officer of the Deputy Vice Chancellor, The University of the West Indies, 1996), 7.Google Scholar

55 For an extensive history of Nauru see Christopher, Weeramantry, Nauru: Environmental Damage Under International Trusteeship (OUP, Melbourne, 1992)Google Scholar; See also James, Crawford, The Creation of States in International Law (2nd edn, OUP, Oxford, 2006) 47 (Table 1).Google Scholar

56 Australian Department of Foreign Affairs, ‘Nauru’ <http://www.dfat.gov.au/geo/fs/naur.pdf> accessed 26 03 2007.+accessed+26+03+2007.>Google Scholar

57 Antony, Anghie, ‘“The Heart of My Home”: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34 Harvard Intl LJ 445, 449–50.Google Scholar

58 ibid 450.

59 ibid 450.

60 ibid 451.

61 David, Goldsworthy, Losing the blanket: Australia and the End of Britain's Empire (Melbourne University Press, Carlton South, 2002) 38–40.Google Scholar

62 Anghie, (n 57) 452.Google Scholar

63 ibid.

64 Nauru Independence Act 1967 (Cth).Google Scholar

65 Anghie, (n 57) 452–4.Google Scholar

66 Agreement for the settlement of the case in the International Court of Justice concerning certain phosphate lands in Nauru (opened for signature 10 08 1993, entered into force 10 08 1993) 1770 UNTS 379.Google Scholar

67 UNGA, ‘Introduction to the Annual Report of the Secretary General’ (1967) 22nd Sess, para 163Google Scholar, UN Doc A/6701/Add.1 cited in Daniel, Orlow, ‘Of Nations Small: The Small State in International Law’ (1995) 9 Temple Intl and Comparative LJ 115, 126Google Scholar; Grant, Thomas D, ‘States newly admitted to the United Nations: Some Implications’ (2000) 39 Columbia J of Transnational L 177, 180.Google Scholar

68 Orlow, (n 67) 115.Google Scholar

69 John, Connell, ‘Nauru: The First Failed Pacific State?’ (2006) 95 The Round Table 47, 53.Google Scholar

70 Republic of Nauru, ‘Letter dated 8 January 2003 from the Permanent Representative of Nauru to the United Nations addressed to the Chairman of the Security Council Committee established pursuant to Resolution 1373 (2001) concerning counter-terrorism’, UN Doc S/2003/127.Google Scholar

71 Craig, Skehan, ‘Nauru defends whaling stance’ Sydney Morning Herald (Sydney, 27 06 2005) 8Google Scholar; Peter, Alford, ‘Votes on whales ‘not sold’’ The Australian (24 06 2005) 9Google Scholar; See also Alexander, Gillespie, ‘Transparency in International Environmental Law: A Case Study of the International Whaling Commission’ (2002) 14 Georgetown Intl Environmental L Rev 333, 345–7.Google Scholar

72 Australian Broadcasting Corporation, ‘Australia disappointed by Pacific whaling vote’ <http://www.abc.net.au/worldtoday/content/2005/s1399886.htm> accessed 27 03 2007.+accessed+27+03+2007.>Google Scholar

73 Connell, (n 69) 57.Google Scholar

74 Western Pacific (Courts) Orders 1961 to 1971 (UK).

75 Arrangement ended by The Kiribati Independence Order 1979 (UK) and Kiribati Act 1979 (UK) s 6.

76 Kiribati Constitution s 123; At one time civil appeals ran from Seychelles to sovereign Mauritius: Fiji: Constitutional Conference, London, Apr 1970. UK Brief No. FCC (70) 4(h) Supplementary Brief, 2.

77 A similar arrangement existed between Western Samoa and New Zealand when Western Samoa was under the trusteeship of New Zealand. The arrangement ended when Western Samoa achieved independence: Western Samoa Act 1961 (NZ) s 7.

78 Nauru Treaty (n 1) Art 1(A)(a).

79 ibid Art 1(A)(b)(i).

80 ibid Art 1(A)(b)(ii).

81 ibid Art 1(B).

82 ibid Art 6(1).

83 ibid Art 6(2).

84 This provision appears to pay homage to the long-standing rule in private international law known as the ‘Moçambique rule’, which prevents a court from hearing matters relating to foreign immovables. See British South Africa Company v The Companhia de Moçambique [1893] AC 602.Google Scholar

85 Nauru Treaty (n 1) Art 2.

86 Although the preamble to the Nauru Treaty mentions the phrase ‘Court of Appeal’ no such court exists: Ruhani v Director of Police [2004] HCATrans 440 (10 11 2004) [459]–[464] (Mr Hanks).Google Scholar

87 Appeals Act 1972 (Nauru) s 41(1); High Court Rules 1952 (Cth) Order 70A(3) (repealed).Google Scholar

88 Nauru Treaty (n 1) Art 1(A); ALRC (n 3) [19.15].Google Scholar

89 Nauru Act 1965 (Cth) s 54, made pursuant to the Agreement between the Government of Australia, the Government of New Zealand and the Government of the United Kingdom of Great Britain and Northern Ireland relating to the Territory of Nauru (opened for signature on 26 11 1965, entered into force 26 11 1965) 1965 ATS 20 Art 5(4).Google Scholar No such case was ever appealed from the Court of Appeal (as it then existed) to the High Court under these arrangements: Commonwealth of Australia, Parliamentary Debates, Senate, 2 12 1976, 2469 (Senator McClelland). The arrangement under the Nauru Act 1965 (Cth) s 54(2) was subject to the ‘leave of the High Court’.Google Scholar

90 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 1 11 1967, 2541 (Mr Bowen, Attorney-General)Google Scholar; the Constitution of Nauru art 57(2) also contemplates such an arrangement, stipulating that ‘Parliament may provide that an appeal lies as prescribed by law from a judgment, decree, order or sentence of the Supreme Court to a court of another country.’

91 Appeals (Amendment) Act 1974 (Nauru).Google Scholar

92 Commonwealth of Australia, Parliamentary Debates, Senate, 2 12 1976, 2469 (Senator McClelland).Google Scholar

93 Commonwealth of Australia, Parliamentary Debates, Senate, 4 11 1976, 1610–12 (Senator Durack).Google Scholar

94 ALRC (n 3) [19.25].Google Scholar

95 ibid [19.27].

96 ibid [19.26].

97 (hereafter ‘Re Wakim’)(1999) 198 CLR 511.Google Scholar

98 Constitution of Australia Act 1901 (Cth), s 73.Google Scholar

99 Constitution of Australia Act 1901 (Cth), ss 75 and 76.Google Scholar

100 Ruhani at [119] (Gummow, & Hayne, JJ).Google Scholar

101 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (hereafter ‘VCCL’)(2001) 182 ALR 617 at [14]–[17].Google ScholarSee also Peter, Mares, Borderline: Australia's response to refugees and asylum seekers in the wake of the Tampa (UNSW Press, Sydney, 2001).Google Scholar

102 VCCL at [18].Google Scholar

103 ibid at [22].

104 ibid at [25]–[26]; in these cases the term ‘rescuees’ was adopted by the courts insetad of asylum-seekers in the interests of neutrality: ibid at [17] Mares (n 101) 122–6.

105 ibid at [27]; Border Protection Bill 2001 (Cth) s 8.

106 VCCL at [29].Google Scholar

107 ibid at [70], [72], [81].

108 ibid at [170].

109 Ruddock v Vadarlis (2001) 183 ALR 1 at 55, 57.Google Scholar

110 ibid at 55–8.

111 Transcript of Proceedings, Vadarlis v Minister for Immigration and Multicultural Affairs No M93 of 2001 (High Court of Australia, 27 11 2001).Google Scholar

112 ibid at ll 2246–8 (Gaudron J).

113 Ruhani v Director of Police (through the Secretary of Justice as the Director of Public Prosecutor) (2005) 222 CLR 489 at 490Google Scholar; Meaghan, Shaw, ‘Nauru can hold asylum seekers, High Court rules’, The Age (Melbourne 1 09 2005) 6.Google Scholar

114 Amiri v Director of Police [2004] Civil Action No 8 of 2004 at [1]Google Scholar (Unreported, Supreme Court of Nauru, Connell CJ, 31 05 2004).Google Scholar

115 ibid at [16].

116 ibid at [27].

117 ibid at [33].

118 Nauru (High Court Appeals) Act 1976 (Cth).Google Scholar

119 Ruhani at [2].Google Scholar

120 ibid at [19].

121 Ruhani v Director of Police (through the Secretary of Justice as the Director of Public Prosecutor) (2005) 222 CLR 489 at 492.Google Scholar

122 ibid at 493–4.

123 Ruhani at [119] (Gummow, & Hayne, JJ).Google Scholar

124 Ruhani at [108].Google Scholar

125 ibid at [110]–[112] (Gummow & Hayne JJ).

126 ibid at [159] (Kirby J), [282] (Callinan & Heydon JJ).

127 ibid at [282].

128 ibid at [79] (footnotes omitted).

129 Kable v Director of Public Prosecutions (NSW) (hereafter ‘Kable’) (1996) 189 CLR 51.Google Scholar

130 ibid at 63.

131 ibid.

132 ibid at 64.

133 ibid.

134 ibid at 102 (Gaudron J).

135 ibid at 109 (McHugh J).

136 ibid at 107 (Gaudron J).

137 ibid at 106; 107–8 (Gaudron J).

138 Nauru Treaty (n 1) Art 2(a).

139 Sueur, Andrew Le, What is the future for the Judicial Committee of the Privy Council? (The Constitution Unit, UCL, London, 2001) 5.Google Scholar

140 Privy Council Office, ‘The Oath of a Privy Counsellor’ <http://www.privycouncil.gov.uk/files/word/Privy%20Counsellor's%20Oath.doc> (accessed 2 01 2007).+(accessed+2+01+2007).>Google Scholar

141 Sir Gerard Brennan, ‘Speech on swearing in as Chief Justice’ (1995) <http://www.hcourt.gov.au/speeches/brennanj/brennanj_swearing.htm> (accessed 2 01 2007).+(accessed+2+01+2007).>Google Scholar

142 ibid.

143 ALRC (n 3) [19.26].Google Scholar

144 eg the Constitution of the Republic of Trinidad and Tobago 1976 s 109(1)(c) stipulates that appeals are to lie to the Privy Council as of right against any ‘final decisions in any civil, criminal or other proceedings which involve a question as to the interpretation’ of the Constitution, subject to some exceptions.

145 It also gives credence to the International Covenant on Civil and Political Rights (opened for signature 16 12 1966, entered into force generally 23 03 1976, entered into force in Australia 23 03 1976; entered into force in Nauru 12 11 2001) 999 UNTS 171Google Scholar; 1980 ATS 23 Art 14(5).Google Scholar

146 Commonwealth of Australia, Hansard, Legal and Constitutional Legislation Committee, Senate, 26 05 2006, 17–18, 21 (Brian Walters SC).Google Scholar

147 Ruhani (No 2) at [26] (footnote omitted).Google Scholar

148 ibid at [34].

149 Ruhani at [289].Google Scholar

150 Although it is difficult to gain a holistic impression of the HRC's influence: UNGA, ‘Report of the Human Rights Committee, vol. 1’ UN Doc Supp No 40 (A/61/40) paras 229–31; Office of the United Nations High Commissioner for Human Rights, ‘Civil and Political Rights: The Human Rights Committee’, Fact Sheet No 15 (Rev 1) <http://www.ohchr.org/english/about/publications/docs/fs15rev.1_en.pdf> (accessed 27 03 2007), 29–30.+(accessed+27+03+2007),+29–30.>Google Scholar

151 ibid at [294].

152 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.Google Scholar

153 Constitution of Nauru Art 4; Appeals Act 1972 (Nauru) s 39(1). Furthermore, Nauru is not a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (opened for signature on 15 12 1989, entered into force generally 11 07 1991; entered into force in Australia 11 07 1991) 1642 UNTS 414Google Scholar; [1991] ATS 19 (hereafter ‘Second Optional Protocol’).Google Scholar

154 Extradition Act 1988 (Cth) s 22(3)(c). See further New South Wales Council for Civil Liberties, ‘Submission to the Minister for Justice and Customs review of Australia's Extradition Law’ (2006) <http://www.nswccl.org.au/docs/pdf/extradition%20review.pdf> (accessed 15 05 2006).+(accessed+15+05+2006).>Google Scholar

155 Section 4.

156 Death Penalty Abolition Act 1973 (Cth) s 5.Google Scholar

157 ibid, s 3(2).

158 Nauru (High Court Appeals) Act 1976 (Cth).Google Scholar

159 Ruhani at [8]Google Scholar(Gleeson, CJ), [66]–[67]Google Scholar(McHugh, J), [103]–[105]Google Scholar(Gummow, & Hayne, JJ), [216]–[217]Google Scholar(Kirby, J).Google Scholar

160 Ruhani at [78].Google Scholar

161 Agreement Establishing the Caribbean Court of Justice Art III, para 3.

162 Oliver v The Queen [2007] UKPC 9 at [19].Google Scholar

163 Swinfen, (n 15) 201–2.Google Scholar

164 This may parallel some of the problems that beset the United Kingdom when it was establishing a Pitcairn Court of Appeal offshore in New Zealand. That required a formal treaty which was far more thoroughgoing than the Nauru Treaty. See the Agreement between the Government of New Zealand and the Government of the United Kingdom of Great Britain and Northern Ireland concerning trials under Pitcairn Law in New Zealand and related matters (opened for signature on 11 10 2002, entered into force 14 03 2003) 2219 UNTS 58.Google Scholar