Australia and New Zealand urged to take action over Nauru rights

29 July 2015

More than 80 prominent constitutional and human rights law academics have written to the Australian and New Zealand governments to express concerns over the breakdown of constitutional law and human rights in Nauru.

They have written an open letter to Australia's Foreign Affairs Minister Julie Bishop, and to New Zealand's Foreign Minister Murray McCully, urging both countries to help Nauruan opposition MP Roland Kun, who has been suspended from parliament and had his passport cancelled due to his criticism of the Nauruan government.

Nauru has also revoked the resident's visa of Mr Kun's Australian wife Dr Katy Le Roy, who is working in New Zealand and taking sole responsibility for caring for their three children.

"In addition to the general concern for the deteriorating rule of law, the signatories below wish to go on record to express their individual and collective concern about the international human rights issues that the Kun and Le Roy family's situation raises and to urge both governments to consider this grave concern in their approach to this problem," the letter said.

The letter is signed by 52 Australian academics, while a separate letter from 29 New Zealand academics has also been sent to Mr McCully.

Spokesperson Professor Kim Rubenstein said the action against Mr Kun appeared to stem from his criticism of the breakdown of the rule of law in Nauru when the country's resident magistrate and non-resident Chief Justice were forced out of office.

Professor Rubenstein, Director of the Centre for International and Public Law at The Australian National University (ANU), said Nauru's response to the criticism appeared to be an assault on Mr Kun's right to free speech and an attack on his right to freedom of movement.

She said the forced separation of Mr Kun and Dr Le Roy also constituted an arbitrary interference with Mr Kun's family.

"We urge the Australian and New Zealand governments to assist Mr Kun in being reunited with his family and express sincere concern for the infringement of international human rights law and the deterioration of the rule of law in Nauru," Professor Rubenstein said.

The letters to the ministers are listed below.

LETTER TO MINISTER BISHOP AND MINISTER MCCULLY

Dear Minister Bishop and Minister McCully,

We have been informed of a letter written by twenty-nine New Zealand academics to Minister McCully regarding the deteriorating constitutional situation in Nauru.  We include that letter at the end of this letter for the benefit of Minister Bishop.

We wish to express particular concern for the Wellington-based family of suspended Nauruan opposition MP Roland Kun and his Australian wife Dr Katy Le Roy.

Last year, the Nauruan government purported to revoke the resident's visa of Dr Katy Le Roy, a PhD law graduate of the University of Melbourne, so that she could no longer live and work in Nauru. The family resettled in Wellington and Dr Le Roy is currently working in New Zealand. Mr Kun has been the primary caregiver of the couple's three children and the youngest is only 18 months old.

Several weeks ago Mr Kun returned to Nauru for a visit and during that visit the Nauruan government cancelled his passport.  This has effectively forced the couple's and family's separation given Dr Le Roy is not able to enter Nauru.

The New Zealand academics' letter urges the Minister to make urgent representations to the Nauruan government about the deteriorating rule of law situation.

In addition to the general concern for the deteriorating rule of law, the signatories below wish to go on record to express their individual and collective concern about the international human rights issues that the Kun and Le Roy family's situation raises and to urge both governments to consider this grave concern in their approach to this problem.

The international human rights law issues the case raises revolve around the following:

Freedom of Speech

The purported reason given for the indefinite suspension of Mr Roland Kun from the Parliament in May last year was that he had criticised the government to international media. In particular, he had expressed concern about the breakdown in the rule of law caused by the removal of Nauru's judicial officers and the Nauru government's failure to replace them (which ultimately left Nauru with no Supreme Court for more than 6 months). This represents an assault on his freedom of speech.

The cancellation of Mr Kun's passport also appears to be an assault on Mr Kun's freedom of speech, as the decision appears to be directly connected to Mr Kun's expression of views to the international media.

Article 19 ICCPR

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of public health or morals.

Freedom of Movement

The cancellation of Mr Kun's passport represents a severe attack on his freedom of movement.

Article 12 ICCPR

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Right to Family Life

The forced separation of Mr Kun from his wife (both in his inability to leave Nauru and her inability to visit without a visa) constitutes an arbitrary interference with Mr Kun's family.

Article 17 ICCPR

1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

We understand that Nauru signed the ICCPR on 12 November 2001 and that the Constitution of Nauru (in particular Articles 3 and 12) guarantees the protection of the above rights of freedom of expression and the protection of the family.

We urge the respective governments to:

1. assist Mr Kun in being reunited with his family and

2. to express sincere concern for the infringement of international human rights law and the deterioration of the rule of law in Nauru.

Yours sincerely,

In alphabetical order

Associate Professor Afshin Akhtar Khavari, Reader in Law, Griffith Law School, Griffith University

Kerrin Anderson, Consultant Lawyer, Brisbane

Dr Rebecca Ananian-Welsh, Lecturer, TC Beirne School of Law, University of Queensland

Professor Donald K. Anton, Griffith Law School, Griffith University

Professor Kathy Bowrey, Faculty of Law, University of New South Wales

Professor Andrew Byrnes, Faculty of Law, University of New South Wales

Dr Anthony Cassimatis, Associate Professor, TC Beirne School of Law, University of Queensland

Professor Hilary Charlesworth, Director for the Centre for International Governance and Justice, RegNet, Australian National University

Professor Sean Cooney, Melbourne Law School, University of Melbourne

Associate Professor Annie Cossins, Faculty of Law, University of New South Wales

Dr Jonathan Crowe, Associate Professor, Executive Director (Public Law), Centre for Public, International and Comparative Law, TC Beirne School of Law, University of Queensland

Dr Liz Curran, Senior Lecturer, ANU Legal Workshop, Australian National University

Marianne Dickie, ANU Legal Workshop, Australian National University

Professor Carolyn Evans, Dean, Harrison Moore Professor of Law, Melbourne Law School, University of Melbourne

Anneka Ferguson, Lecturer, ANU Legal Workshop, Australian National University

Dr. Caroline Foster, Associate Professor, Law School, University of Auckland

Dr Michelle Lim, Griffith Law School, Griffith University

Professor Matthew Harding, Co-Convener, Obligations Group, Melbourne Law School, University of Melbourne

Jasper Hedges, Research Fellow, Centre for Corporate Law & Securities Regulation Melbourne Law, University of Melbourne

Professor Andrew Kenyon, Melbourne Law School, University of Melbourne

Professor Fleur Johns, Faculty of Law, University of New South Wales

Associate Professor Sunita Jogarajan, Melbourne Law School, University of Melbourne

Bridget Lewis, Lecturer, Faculty of Law, Queensland University of Technology

Bill Mansfield, Former member of the UN International Law Commission

Professor Penelope Mathew, Griffith Law School, Griffith University

Dr Christopher Michaelsen, Associate Professor, Director of Human Rights and Social Justice Programs, Faculty of Law, University of New South Wales

Dr Rebecca Monson, Lecturer, ANU College of Law, Australian National University

Professor Jenny Morgan, Melbourne Law School, University of Melbourne

Dr John Morss, Deakin Law School, Deakin University

K I Murray, Barrister, Lambton Chambers, Wellington

Associate Professor Molly Townes O'Brien, ANU College of Law, Australian National University

Professor Graeme Orr, TC Beirne School of Law, University of Queensland

Jadranka Petrovic, MBS, Monash University

Dame Alison Quentin-Baxter DNZM, Barrister of the High Court of New Zealand

Zoe Rathus AM, Senior Lecturer, Griffith Law School, Griffith University

Professor Simon Rice, OAM, Director of Law Reform and Social Justice, Chair, ACT Law Reform Advisory Council, ANU College of Law, Australian National University

Professor Kim Rubenstein, Director, Centre for International and Public Law, ANU College of Law, Australian National University

Professor Karen N. Scott, University Proctor, Acting Head of the School of Law, University of Canterbury

Emeritus Professor Ivan Shearer, University of South Australia

Dr Olivera Simic, Senior Lecturer, Griffith Law School, Griffith University

Joanne Stagg-Taylor, Lecturer, Griffith Law School, Griffith University

Professor Tim Stephens, Faculty of Law, University of Sydney

Professor Adrienne Stone, Melbourne Law School, University of Melbourne

Professor Margaret Thornton, ANU College of Law, Australian National University

Kate van Doore, Postgraduate Programs Director, Griffith Law School, Griffith University 

Professor Prue Vines, Faculty of Law, University of New South Wales

Professor Tania Voon, Director, International Trade Law, Global Economic Law Network, Melbourne Law School

Associate Professor Nicola Wheen, Law Faculty, University of Otago.

Dr Amanda Whiting
Associate Director, Malaysia, Asian Law Centre, Melbourne Law School, University of Melbourne

Keith Wilson, Senior International Trade Law Counsellor, Institute for International Trade, University of Adelaide

Dr Asmi Wood, ANU College of Law, Australian National University

Angela Woodward, Adjunct Senior Fellow, School of Law, University of Canterbury, New Zealand.

Associate Professor Margaret Young, Melbourne Law School, University of Melbourne

**********

Open letter to Hon Murray McCully

Dear Minister

We write as a group of concerned New Zealanders, each of whom holds expertise in the areas of constitutional law, international law and/or human rights law.

As you know, since the 2013 election in Nauru, there has been a series of disturbing developments on the island that indicate a severe deterioration in the state of its parliamentary democracy and in the rule of law. We are particularly concerned about the impact of these developments on the Wellington family of Nauruan opposition MP Roland Kun. We wish to express our dismay in relation to these developments and to urge you to take more decisive action.

You will remember that these issues first came to a head in early 2014 when, in response to court decisions it did not like, the government of Nauru forced the island's resident magistrate and its non-resident Chief Justice out of office.

The protection of judicial tenure is a fundamental cornerstone of the rule of law. It enables judges to rule in legal cases without fear or favour and ensures that government officials, like all others, are bound by the law as interpreted by independent courts. Since these events occurred in Nauru, the Nauruan justice system has not displayed this hallmark of independence. When deciding legal cases, judges and magistrates in the Nauruan justice system must necessarily have in mind the possibility that a decision contrary to the government's perceived interests could result in the judge or magistrate being forced out of office.

As you are aware, New Zealand is a development partner of the Government of Nauru and the principal funder of Nauru's Department of Justice and Border Control. When these events occurred, you were urged to re-consider this aid arrangement but decided not to do so on the basis of assurances from the Nauruan government as to the future protection of the rule of law in Nauru.

Since that time, however, the situation has degenerated further. As you know, in May and June 2014, five members of the Nauruan parliamentary opposition were suspended indefinitely from Parliament. For more than a year, five out of seven opposition MPs (in a 19 member Parliament) have received no funding or resources and have been unable to participate in parliamentary proceedings. The suspension of five MPs leaves a significant proportion of Nauru's population without political representation. As importantly, it leaves Nauru without an effective opposition to scrutinise government action and hold the executive to account. An effective opposition is a fundamental prerequisite of any functioning system of parliamentary responsible government.

The purported reason given for the suspensions of three of these MPs (including Mr Roland Kun, to whose circumstances we will return) was that they had criticised the government to international media - in short, that they had exercised their right as citizens (and duty as parliamentarians) to free speech. During the course of 2014 and 2015, there have been a number of other significant incursions into the free speech of Nauruan citizens, including a 2014 direction from government to local media not to speak to members of the opposition, a May 2015 government directive to Nauru's only internet service provider to block Nauruan citizens' access to Facebook, and a May 2015 amendment to Nauru's Criminal Code introducing a vaguely worded offence that punishes speech which has the "intent to stir up ... political hatred". As well, the government has increased the visa fees for foreign journalists from $200 to $8000, further shutting down scrutiny from international media.

The dismantling of an effective judicature together with the silencing of the media, opposition and even ordinary citizens on Facebook means that the government of Nauru is now virtually immune from scrutiny of its actions.

This series of concerning developments form the backdrop for the events of the last fortnight, of which you are aware. Following a political protest outside Parliament, three of the suspended opposition MPs have been arrested and charged with criminal offences relating to the protest. Two of them are being denied bail - a significant intrusion on the right to liberty that is ordinarily reserved for those who pose a serious danger to the public. It seems the Nauruan government may also be obstructing the right to legal counsel - another fundamental tenet of the rule of law. As there are no trained lawyers on the island other than those employed for the government, the exercise of the right to counsel is dependent on the government granting visas to counsel from other jurisdictions to enter Nauru. The Minister of Justice has already declined a visa application by an Australian lawyer retained by one of the suspended MPs, and the concern is that other such declines may follow.

We understand that a number of ordinary Nauruan citizens have been forced out of their civil service jobs as a result of their participation in the protest.

The five suspended MPs have also had their passports cancelled so that they cannot travel outside of Nauru - a denial of the right to freedom of movement recognised at international law. This has had drastic implications for one of the five suspended MPs in particular - Mr Roland Kun, the MP for Buada. Mr Kun's wife, Dr Katy Le Roy (an Australian citizen) was one of a number of senior government officials on Nauru to be sacked following the 2013 change of government and to have her visa revoked. This meant that the Kun/Le Roy family had to leave their home on the island. The family have resettled in Wellington and made it their home. Dr Le Roy - a talented and highly respected constitutional lawyer and legislative draftsperson - has taken up a permanent position in the New Zealand civil service. The couple have three children, the youngest of whom is only 18 months old. Since their move to New Zealand, Mr Kun has been acting as the primary caregiver.

By cancelling Mr Kun's passport while he was visiting Nauru, the Nauruan government have forced the separation of Mr Kun from his Wellington family and left the young children without their primary caregiver. Dr Le Roy is forbidden from returning to the island; Mr Kun from leaving it. Mr Kun did not attend the political protest outside Parliament and has not, to date, been arrested or charged with any criminal offence. It is difficult not to reach the conclusion that Mr Kun and his family are being further punished for Mr Kun's preparedness to talk to international media about the deteriorating situation in Nauru.

Over the past 18 months, you have expressed publicly on several occasions your concern about these developments and have undertaken to raise various issues with the Nauruan government. Nothing has come of this "softly softly" approach and the time for a more forceful approach has arrived. As you have previously acknowledged in relation to Nauru, there is a close connection between democracy and the rule of law, and the effective operation of the justice system. It is not tenable for New Zealand to continue in its role of principal funder of Nauru's justice sector while democracy and the rule of law are in such disarray and while so many basic human rights are being denied. As well, given our historical ties to Nauru and our position as a Pacific neighbour, New Zealand owes it to the citizens of Nauru to do everything it can to encourage its government to restore democracy and the rule of law.

We therefore urge you to:

1.      Make urgent representations to the government of Nauru in respect of its persistent breaches of human rights and its disregard for the rule of law and parliamentary democracy;

2.      Persuade the government of Nauru to:

●     revoke its decision to cancel the passports of opposition MPs;

●     lift the suspension of opposition MPs;

●     restore freedom of expression and other civil and political rights; and

●     refrain from further interferences with the operation of the justice system;

3.      If Nauru does not move swiftly to take remedial action, withdraw New Zealand funding from Nauru's Department of Justice and Border Control.

Signed:

Professor Tony Angelo, Faculty of Law, Victoria University of Wellington

Natalie Baird, School of Law, University of Canterbury

Dr Mark Bennett, Faculty of Law, Victoria University of Wellington

Dr Claire Charters, Faculty of Law, University of Auckland

Eddie Clark, Faculty of Law, Victoria University of Wellington

Dr Joel Colon-Rios, Faculty of Law, Victoria University of Wellington

Alberto Costi, Faculty of Law, Victoria University of Wellington

Treasa Dunworth, Faculty of Law, University of Auckland

Dr Caroline Foster, Faculty of Law, University of Auckland

Professor Andrew Geddis, Faculty of Law, University of Otago

Professor Claudia Geiringer, Faculty of Law, Victoria University of Wellington

Marcelo Rodriguez Ferrere, Faculty of Law, University of Otago

Kris Gledhill, Faculty of Law, University of Auckland

Professor Mark Henaghan, Dean, Faculty of Law University of Otago

Dr John Hopkins, School of Law, University of Canterbury

Dr Dean Knight, Faculty of Law, Victoria University of Wellington

Catherine Iorns, Faculty of Law, Victoria University of Wellington

Professor Campbell McLachlan, Faculty of Law, Victoria University of Wellington

Professor Janet McLean, Faculty of Law, University of Auckland

Joanna Mossop, Faculty of Law, Victoria University of Wellington

Sascha Mueller, School of Law, University of Canterbury

Sir Geoffrey Palmer, Distinguished Fellow, Faculty of Law, Victoria University of Wellington

Dr Rhonda Powell, School of Law, University of Canterbury

Dr Guy Powles, Honorary Fellow, Monash University

Dr Jacinta Ruru, Faculty of Law, University of Otago

Mamari Stephens, Faculty of Law, Victoria University of Wellington

Professor ATH Smith, Faculty of Law, Victoria University of Wellington

Hanna Wilberg, Faculty of Law, University of Auckland

Professor Margaret Wilson, Faculty of Law, University of Waikato