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As Nauru continues its crackdown on opposition and abolishes higher courts, Australia turns a blind eye in exchange for offshore processing. By Martin McKenzie-Murray.

Australia props up Nauru’s ‘out of control’ president

On June 15, 2015, the Nauruan opposition MP Mathew Batsiua, a former justice minister, joined hundreds of locals in a march to the micro-state’s parliament. They were aggrieved by what they described as serial abuses of power – cronyism, judicial interference, the expulsion of foreigners, draconian anti-speech laws, and the parliamentary suspension of Batsiua himself.

Another of the protesters was Nauru’s former president, Sprent Dabwido, who described President Baron Waqa’s government as having “dictatorial” instincts. The year before, Nauru’s magistrate, the Australian Peter Law, was expelled from the country after he attempted to lawfully prevent the government’s capricious expulsion of two of its residents. It was a naked abuse of power, and when Nauru’s Chief Justice, Geoffrey Eames, issued an injunction, it was simply ignored. Eames, another Australian, was later refused re-entry to the country.

“Our intentions were to stage a peaceful protest,” Batsiua tells me. “That’s how we organised it. And peaceful protest is permitted under our constitution. All discussions beforehand were about peaceful collection at parliament precinct. No intention to cause any escalation. We were stopped by the police before we even reached parliament. We made our way through the police line, where there was another line at parliament. There was pushing and shouting that occurred between protesters and police. That’s the extent of it.”

Batsiua – and 18 others, including former president Dabwido – were arrested and charged with a range of public disorder offences, including assault and rioting. They have come to be known as the Nauru 19. Batsiua spent two nights in custody before being released on bail. He says there are “a record number” of conditions attached to his freedom. The office of the public defender refused assistance and the men’s passports were revoked. “The pressure has been relentless for nearly two years,” Batsiua says. “The environment here, with the underhanded tactics of the government, makes it hard to live. That’s the cloud we’ve lived under. Salary and entitlements stopped. It’s been a tough and turbulent ride. But we’re determined to see it out. 

“Our family members and supporters have been affected. There’s a government blacklist. The government can ban people from working in the public service. But they also pressure Australian companies contracted at the [detention centre]. They pressure them to not employ certain people. The effects of the blacklist are widespread here in Nauru. Government has used it as a tool to persuade people to leave us – to change alliances from us to them.”

This was not the first mention of the blacklist I heard this week. In 2016, four of those charged pleaded guilty, and three were sentenced to between six and nine months’ jail, while one received a six-month suspended sentence. This enraged the justice and finance minister, David Adeang – described to me this week as the “plotting and cynical” tactician of the government – who described the sentences as woefully lenient, and fulminated about the men’s treachery.

The sentences of three men – John Jeremiah, Josh Kepae and Job Cecil – then went to the Nauruan Supreme Court for review, a fact that close observers tell me was “almost certainly” politically influenced. The magistrate who issued the original sentences, Emma Garo, did not have her contract renewed. Chief Justice Mohammed Khan, finding the sentences to be “manifestly inadequate”, increased the sentences to 14 and 22 months.

The appeal of these new sentences last year in the Australian High Court – as Nauru’s final court of appeal – resulted in the secretive and troubling abolition of a treaty between the two countries, and further exposed Nauru’s compromised judiciary. 

 

This week, I was given the kind of blunt assessment you hear about dictators: “This is a man out of control.” The man in question is the Nauruan president, Baron Waqa. He’s a man driving a dramatic, alarming decline in democracy in Nauru – and a man the Australian government has refused to censure. He has locked up opponents, exiled judges and compromised his judiciary. For those he can’t exile or imprison, he enforces the government’s blacklist. Only this year did Waqa relax a three-year ban on Facebook.

But our countries are mutually dependent, bound by the policy of offshore detention. Australia was desperate for an offshore site and Nauru desperate to revive its economy. As Waqa acknowledged in January: “The re-establishment of the Regional Processing Centre has been the driving economic force of development on Nauru. The level of economic activity on the island since the centre was re-established in 2012 has been enormous. The demand on services, infrastructure and labour was overwhelming.”

For very different reasons, it was no less important to Australia. But one of the costs of this transaction has been our near-silence about Waqa’s erosion of the rule of law. Democracy is collapsing in a near neighbour, and our country is propping up the regime replacing it. “Australia holds itself out as a country that insists upon other countries honouring the rule of law, the importance of an independent judiciary et cetera,” one observer told me this week, “but they have been complicit in this instance of denying these men proper justice.” 

 

Until last month, the Australian High Court has served as Nauru’s final court of appeal. This was ratified in a 1976 treaty, although the function predated the treaty’s existence. It is an unusual, though not unknown, circumstance – that of a country’s last appellate court residing in a foreign jurisdiction. For most of its 42 years, the treaty was little exercised. Cost and distance is presumed to be one reason Nauruans, who enjoy a very limited legal presence, have not made use of it. Professor Jeremy Gans of Melbourne University wrote earlier this year that just five High Court decisions on appeal occurred in the treaty’s first 40 years. This changed quite dramatically in the past two years and in the last year alone 13 appeals were started. The sudden increase is largely owing to Nauru’s population of asylum seekers making appeals, particularly in instances where they have Australian legal representation.

The treaty has long vexed the High Court, inviting, as it does, a strange mix of jurisdictions. In a 2004 challenge to the treaty’s constitutionality, brought by Nauruan police, the Australian government declined to defend the validity of its own statute, prompting disgruntled surprise from Justice Michael Kirby. The challenge was unsuccessful.

In October last year, the High Court gave its judgement on an appeal to Justice Khan’s re-sentencing of Cecil, Kepae and Jeremiah. The appeal was upheld, angering and embarrassing the Nauruan government. The court found that for Justice Khan to legally justify the increased sentences, he would have to have found an error in the original ones. He had not.

Two months later, in the middle of December, the Nauruan government wrote to the Australian government requesting the abolishment of the treaty. The annulment would become effective 90 days after this notice. No one was notified. Lawyers for the Nauru 19 continued for months in the belief of their recourse to the High Court, little knowing that the clock was counting down on the jurisdiction’s erasure.

This annulment has happened secretly and has cynically plunged political opponents into legal twilight. Lawyers for Batsiua – and the other suspended parliamentarians – made an appeal to the High Court, arguing that the appeals process was already in motion and should be heard. On Wednesday, this was rejected. The men have no recourse to a local appellate court – there isn’t one,  and there won’t be for some time.

The errors of Justice Khan were not esoteric. A judge must justify the revision of a sentence – in this instance, its dramatic extension.

When news broke of the treaty’s annulment – a fact let slip to Australian lawyers on Good Friday, who coincidentally shared a flight home with Nauru’s solicitor-general – the Nauruan government argued it was a simple matter of strengthening sovereignty. If so, it is unusual that it wasn’t mentioned in President Waqa’s January 31 speech, marking 50 years of his country’s independence. Or in any speech. Nauru removed its highest court of appeal without consulting its people. There are good reasons for establishing a local appellate court on Nauru, but none for condemning political opponents to a legal no-man’s-land. “They are clearly punishing us,” Batsiua says. “They’ve cut off our avenue for appeal.”

The decision brought immediate and damning press, and the Nauruan government belligerently defended itself. A series of tweets this week from the government’s official account read: “Nauru’s justice system is independent and transparent, and our judges – all from outside Nauru – are highly respected. As a sovereign nation with a democratically (re)elected government, we will make decisions based on what is best for our people, not what ill-informed, racist, colonial-minded Australian lawyers, journalists and activists try and demand. We will not accept attempted interference in our domestic affairs.”

Close observers saw a badly pinched nerve. Here was the Waqa government’s signature pugnacity – in lieu of accountability, ascribe to your opponents an obscene motivation. It was a mix of shamelessness and acute sensitivity. The Nauruan government was working from a playbook that Australian PR merchant Lyall Mercer helped write, when he was in the employ of the government.

Meanwhile, the Australian government has said it supports Nauruan sovereignty and welcomes any improvements to the country’s civic maturity. For as long as Nauru has been a useful client, the Australian government has been mostly mute or prevaricating on its abuses of power – even when those abuses have affected Australian citizens.

 

For most Australians, Nauru has become shorthand for our policy of offshore processing. It’s a crude reduction, offensive to many Nauruans. My own reporting is guilty of it. This is, largely, a collateral result of journalistic necessity – the policy has been injurious, and our unquestioning patronage of the Nauruan government dubious. For the past five years, injury and corruption have been synonymous with the policy and the island. It has demanded attention. It still does. “We’re known outside for two things,” Batsiua says. “Refugees and corruption. But it’s a beautiful country. We’re friendly people. We don’t judge people. We’re very hospitable. We accept people for who they are. But today, we must stand up for our country.”

Reflecting on the past, Batsiua says: “It’s in our psyche – we don’t migrate, unlike Polynesians. Even with all the negative publicity, it’s still our home. We don’t have any visa problems because we don’t abscond. We get homesick and come home. There’s a really strong link to home. We’re like homing pigeons, I say.

“I think Nauru, like any other small Pacific island, has a lot of inherent challenges. Limited land, small population, limited economic base. But what makes Nauru different is that we’ve had some unique opportunities, through phosphate for example. NPC exported millions of tonnes of phosphate, generated huge revenue. We were able to establish sophisticated telecommunications in the ’70s. For a while our GDP per capita was the second highest in the world. We had ships, planes, an investment portfolio. There was a trust of around $2 billion – things were looking rosy. But then we fell into a rut because of mismanagement and corruption. We failed to manage our wealth properly. Early 2000s, receivers were brought in and we lost our investment portfolio.

“When we came into government in 2004, we came in straight after the collapse of the trust. We were voted in because people wanted change. We recognised that corruption was the root of our downfall. We made headway into that. We brought in new laws to protect treasury fund. Built in a lot of reforms into our system. It’s important for us to fight now. At the heart of it is abuse of power – what’s happening now is the same thing that brought Nauru to its knees in the ’90s and early 2000s. I feel at the forefront of something very important. There’s weight and responsibility. You have to focus and prepare yourself mentally and physically and do the best you can.” 

I last spoke to Batsiua on Thursday. By the time you read this, he will likely be behind bars again.

This article was first published in the print edition of The Saturday Paper on Apr 7, 2018 as "Australia props up Nauru’s ‘out of control’ president". Subscribe here.

Martin McKenzie-Murray
is The Saturday Paper’s chief correspondent.