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Politics wins the day: Nauru expels judges, Australia stays quiet

By Rebecca Ananian-Welsh - posted Friday, 31 January 2014


Judicial independence has been applauded in every corner of the Australian political system. As the Australian Bar Association has said, judicial independence is ‘a key stone in the democratic arch’ and, they warned, if that keystone crumbles ‘democracy falls with it’.

Judicial independence is not only a fundamental value in Australia. It commands almost universal approval. Article 1 of the United Nations Basic Principles on the Independence of the Judiciary requires that judicial independence ‘be guaranteed by the State and enshrined in the Constitution or the law of the country’, and says that, ‘It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary’. A person’s right to a fair and public hearing by an independent and impartial tribunal is protected in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Throughout the wealth of international instruments and agreements on judicial independence, a judge’s security of tenure is highlighted as one of its most important aspects. Protections for a judge’s job security and remuneration are also given considerable protection under section 72 of the Australian Constitution. As former Chief Justice of the High Court Sir Harry Gibbs eloquently put it, judicial independence requires ‘that no judge should have anything to hope or fear in respect of anything which he or she may have done properly in the course of performing judicial functions’. Waqa’s response to the decisions of Law and Eames send a clear message that judges in Nauru have much to fear from the judicial decisions they make.

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The actions of the government in Nauru show a complete disregard for the independence of the judiciary and the rule of law. The potential impact of these actions cannot be overstated. President Waqa has demonstrated that judges can and will be punished for making decisions that are not in the government’s interest. He has also shown that the government does not consider itself bound by decisions it does not like.

In this situation the role of the international community becomes vital. Law, Eames and Bliim are Australian citizens, and the High Court of Australia remains Nauru’s highest court of appeal. The spotlight has fallen on the Australian government. Will it champion judicial independence and the rule of law in Nauru? Or will it let these fundamental democratic values be overrun for the sake of political interests?

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About the Author

Rebecca is Lecturer in Public Law at the University of Queensland's TC Beirne School of Law.

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