Nauru’s new contempt laws
A few weeks ago, the Nauruan government passed, with little or no consultation, some of the world’s most extreme contempt of court laws – laws that may criminalise the publication of this very article. The passage of law has been made easier in recent years by the effective banishment of an opposition party. It is no secret that, for years and with little censure from the Australian government, Nauru has “lurched towards authoritarianism”, as the Lowy Institute remarked this week in a long report.
This descent is marked by the summary expulsion of its sole magistrate and the barring of its chief justice in 2014, the prosecution of political opponents, the appointment of judges whose rulings have been criticised in the Australian High Court, and the recent Naoero National Anthem Emblem and Flag Protection Act that would, among other draconian provisions, criminalise the modification of the national flag and sentence an offender to up to five years’ jail for doing so. Additionally, former MPs have told me of their blacklisting, and the blacklisting of their friends and family – rendering employment difficult in a tiny country where so many jobs are provided by the government.
From observation, testimonies and the public record, it has become obvious that the Nauruan government is exceptionally intolerant of criticism. Those familiar with its leaders tell me the new Act should be seen in this light: as a blunt instrument to chill criticism and reporting – including the Australian media’s – and especially that arising from the prosecution of the Nauru 19, a group that includes both a former president and justice minister, who were charged with public order offences after leading protests over their parliamentary expulsion.
In 2016, Nauru’s justice minister, David Adeang, sued the ABC for defamation following reports on the death of his wife, and the subsequent expulsion of the chief justice and coroner.
The matter was settled out of court last week after the parties were encouraged to enter mediation – a court hearing was to have started next month. The ABC said it was not commenting further on the matter at this time.
David Adeang was less discreet. Sources have told The Saturday Paper that he rose in parliament this week to claim vindication – and threaten ABC sources. “He was boasting that the ABC has apologised and will be publishing an apology in print and on their website,” the source said. “He is proclaiming total vindication and that he will be [homing] in on all the sources who helped ABC spread lies about him and defamed him.”
It is unusual that sources might be needed to relay what’s spoken in Nauru’s parliament, but its Hansard record hasn’t been updated for years, and its government is reliably mute on media inquiries. The Nauru government told The Saturday Paper it could not respond to queries before deadline, and ignored a subsequent request that responses be provided beyond that deadline for a future story.
Nauru’s Administration of Justice Act 2018 began on May 15, and purports to “uphold the dignity and authority of the courts in the public interest” by “providing a balance between freedom of expression and the protection of the public by preserving the machinery, integrity, dignity and authority of the courts”.
While the Act does create some legitimate contempt of court provisions, it also enshrines authority described to me by legal observers as “extreme” and “worrying”, and by former president Sprent Dabwido as designed to keep critics silent.
The Act criminalises the following: the criticism of any witness; criticism of any party to a case; criticism of any judicial officer; and criticism of any legal representative. It also outlaws the publication of a judgement, decision or order of the court.
However, the government has exempted itself from these provisions, allowing: “A statement or publication made under this section, on behalf of the Republic about the subject matter of or an issue in a court proceeding that is pending, is not contempt of court if the Republic believes that such statement is necessary in the public interest, national security or administration of justice … No servant or agent of the Republic shall be convicted of contempt of court for the execution of his or her duties in good faith.”
Legal observers have commented on the convenience, given the government’s violation of then chief justice Geoffrey Eames’ injunction against the expulsion of magistrate Peter Law.
The new laws would apply to foreign reporting. Those found guilty of these offences can be punished with up to two years’ jail. One source close to the Nauru 19 told The Saturday Paper: “The Nauru 19 have been repeatedly critical of the Nauru executive government, in the media, on social media and in public meetings as is perhaps to be expected in a highly political case. They have also sought to keep their body of supporters informed with developments in the case, including sharing judgements and orders made. All these things are now apparently crimes. Even members of the legal team are probably guilty of retrospective crimes. As became evident with the High Court treaty termination, they are legislating directly with the case in mind.
“The small island dynamics of the case are at play,” the source continued. “Nauru’s highly personalised politics and micro-nation mentality translates into acute sensitivity to criticism. The Waqa government is incapable of not responding to the criticism they receive as the Nauru 19 mount an aggressive political defence to a political prosecution. But with every extreme response, the criticism just intensifies. One wonders whether Adeang can endure the criticism much longer without something snapping.”
In a statement this week, Nauru’s former justice minister, Mathew Batsiua, one of the Nauru 19, firmly criticised the new laws. “Lawyers for the government have made it clear that the government has been monitoring our media and social media and cataloguing any comments made by us or our lawyers about the case,” he said. “Now we see this absurd new retrospective law that creates contempt of court laws that we believe are the most draconian in the world.
“We have instructed our lawyers to consider seeking a pre-trial ruling from the trial judge on the constitutional validity of these new laws. They are a chilling and extraordinary attack on the rule of law and democratic freedom and undermine our right to a fair trial. They are also blatantly unconstitutional.
“These laws need to be looked at in light of the history of this case. The government has already threatened our lawyers with contempt of court, sought personal costs orders against them, threatened them with visa cancellation and denounced them in parliament. Now these new laws hang over us and our legal team.
“Yet again we see this irresponsible government responding to developments in the case by passing new laws and undermining our legal system. This is the same government who illegally deported the resident magistrate in breach of an injunction (because he tried to stop their arbitrary use of immigration powers), then banned the serving chief justice from the country, banned associations of three or more people, banned Facebook, removed the High Court as an appeal court without replacing it. The dictatorial behaviour of the Waqa government is an embarrassment to our country.”
The same day as the Batsiua statement, the Lowy Institute released a paper called “Instability in the Pacific Islands: A Status Report”. Of Nauru, Dr Stewart Firth, a research fellow at the Australian National University’s Department of Pacific Affairs, wrote: “After years of frequent changes of government and states of emergency, Nauru’s politics is characterised by an authoritarian approach to parliamentary oppositions, public demonstrations, and freedom of speech but could not be described as unstable or likely to become so ...
“Nauru’s recent political stability has come at the cost of increasing authoritarianism. As host of the Australian detention centre, the Nauru government has entrenched executive power in the knowledge that criticism from Canberra will be low-key at most. Its three targets have been the judiciary, opposition MPs, and freedom of speech. Nauru’s example may serve to demonstrate to the region that the commitments of the Biketawa Declaration to democracy and the rule of law do not have to be taken too seriously, and that an authoritarian approach to parliamentary opposition pays dividends.”
Firth’s recommendation – that “Australia should do more to indicate its disapproval of Nauru’s recent curbs on the judiciary, the media, and the opposition” – is unlikely to be acted on any time soon.
As for the Nauru 19, those who know them well say they’re a resilient group who are “fired up” about fighting injustice. But for some of them, it has been a painful adjustment from being leaders to pariahs – ones who are looking at jail time while their appeals become ensnared in an increasingly oppressive justice system.
This article was first published in the print edition of The Saturday Paper on Jun 9, 2018 as "Nauru 19, going on Waqa regime". Subscribe here.