The guano flies as rule of law abused in client states 
Monday, July 21, 2014
Justinian in Asylum seekers, Court in the Act, Judicial independence, Nauru, Papua new Guinea, Rule of law

Abuse of power by heads of state in Nauru and PNG ... Asylum seeker dumping grounds ... Australia unconcerned about abuses and corruption on our doorstep ... Judicial independence sacrificed for border security ... Client states pay the price ... Kate Lilly & R. Ackland report 

Nauru: Prison Island

THE rule of law has had a dreadful time in Nauru and PNG, the two god forsaken places Australia uses as dumping grounds for asylum seekers and refugees under our border protection policy. 

It has suited the Australian government to turn a blind eye to the perversions and corruptions that characterise these satrapies. 

Nauru claims to be restoring the rule of law and independence of the judiciary following the rough handling and deportation in January of the resident magistrate and registrar Peter Law and the resignation of chief justice Geoffrey Eames in March. 

The government of President Baron Waqu was mightily displeased with Law after he granted an interim injunction preventing the removal from the island of Hareef Mohammed, a Fijian national, and an Australian Rod Henshaw. 

Henshaw had been Nauru's director of media and more recently he and his wife operated the Reef Bar at Anibare's Menen Hotel.

Since his return to Australia, Henshaw has said that Nauru is effectively a dictatorship - being run by the Justice Minister David Adeang.  

Henshaw: his deportation led to the scuttling of judicial independence

Law was arrested and deported after false accusations that he was drunk and disorderly. 

Eames, who had been a judge of the Victorian Supreme Court, tried to intervene by issuing an injunction against Law's deportation. For his trouble Eames' visa was cancelled. 

A new Immigration Act was introduced, which allowed for the arbitrary deportation of non-citizens, without notice and without a right of review by a court. 

The legislation was retrospective so as to remove any doubt about the expulsion of Henshaw, Mohammed and Law. 

Chief Justice Eames said that by rewriting the immigration legislation and making it retrospective the government, "has made a tacit admission that the deportation orders under the 2013 legislation - which led to the crisis in Nauru - were indeed legally defective". 

Prez Waqa: cleaning up Nauru

President Waqa had a somewhat different take: 

"Cleaning up cronyism and corruption was the first priority, because a level playing field was important for all Nauruans to prosper and have equal opportunity. We made the tough call to replace - and in some extreme cases, deport - high profile people who put their own interests above the interest of the nation, and we have brought credibility back to our legal system."

Eames was not removed from office, he just couldn't function as CJ, so on March 13, he resigned. 

He issued a detailed statement critiquing the conduct of the Nauru government. 

"I could not be assured that the separation of powers and the independence of the judiciary would be respected. This would greatly inhibit the role I could play as a judge of the Supreme Court." 

The Nauru Law Society, the Law Council of Australia, the Australian Bar Association, the Queensland Law Society and the International Commission of Jurists all made noises of concern about what was going on. 

The Australian government failed to publicly support Law and Eames, and hasn't condemned the abuse of power by this client regime. 

The once rich guano-laden Pacific outcrop is home to about 1,177 asylum seekers and its financial existence is dependant on Australian and, to a lesser extent, New Zealand, largess. 

Earlier this year Nauru refused Amnesty International access to the island, saying the detention centre was "incredibly busy" and that a visit "at this time may appear premature".  

Immigration Minister Scott Morrison was unconcerned about the removal of Australian judges because he said it had nothing to do with pending cases against asylum seekers who had been charged with offices associated with the riot at they detention centre last year. 

The case against 20 asylum seekers has been withdrawn, but 61 others face charges of riot and unlawful assemble.  

Initially Law was replaced as the island's magistrate by Melbourne lawyer Andrew Jacobsen. By March, Jacobsen was gone and two more short term, six-month, appointments had been made - Fijians, Ropate Cabealawa as magistrate and Graham Leung as registrar. 

Cabealawa was described in the announcement by Nauru as having been: 

" ... the resident magistrate for the Fiji Government since 2009 and worked as a research assistant with the Fiji Law Reform Commission as well as being a government lawyer with Fiji's Office of the Solicitor General." 

Leung is a former president of the Fiji Law Society. 

A new chief justice has not been appointed. There is a list of about 23 applicants, nearly all from India or Fiji. There's one applicant from Queensland, an ex-magistrate in the Solomon Islands. 

John von Doussa from South Australia was the only other judge of the Supreme Court of Nauru, but his commission ended in October last year. 

Without a judge the Opposition in Nauru cannot apply for a court order to overturn the removal of five members of parliament. 

Three were removed because they criticised the government to foreign (Australian) media - over the sacking of Peter Law and the cancellation of the CJ's visa. 

All media in Nauru is censored. Reporting of opposition statements is off limits, and the country has effectively thwarted access by foreign media by imposing a $8,000 non-refundable visa fee. 

Melbourne barrister Darren Bracken has been appointed an additional temporary magistrate, sitting only on detainee cases arising from the 2013 riot. 

There have been some issues whether his appointment requires legislative amendment. Certainly someone seems to get cracking on the riot cases, as Cabealawa seems not to have done much. 

There is a huge backlog of Supreme Court civil and criminal cases, making the appointment of an acting CJ a pressing necessity. 

Adeang with his patron. Unaccustomed to courts disagreeing with the executive

The nasty element in all this is largely the conduct of justice and border control minister David Adeang

The speaker of the Nauru parliament, Ludwig Scotty, was also keen to see the back of Eames, because the CJ had ruled that he had breached the constitutional rights of the opposition, which on an earlier occasion wanted to put a no confidence motion. 

Adeang found it difficult to accept that decisions of cabinet could be overturned by the courts. 

There are other reasons why he wanted to see the resident magistrate removed; as coroner Law had ordered the police to re-investigate the death last year of Mrs Adeang. 

Mrs Adeang died after petrol was poured over her and set alight. The minister refused to be interviewed and it was likely that the resident magistrate would issue a subpoena. 

Additionally, the former commissioner of police, an Australian, was about to start an investigation into corruption allegations against Adeang. He was sacked by the minister on the evening of the July 2013 riots. 

Adeang has been conducting many of the interviews for the judicial position. The appointment will only be for the short-term, hardly great sign for judicial independence. But then, given the selection process and the candidate sought by the regime, a short term contract may be preferable. 

Ben Saul, international law professor at Sydney University, says Australia has essentially rewritten Nauru's immigration laws to suit its own purpose of processing asylum seekers.  

"Australia's dirty fingerprints are all over Nauru's legal system and Australian actions have eroded the culture of legality there ... 

The Australian government does not miss the absence of judges in Nauru. It simply allows both governments to have their way, and makes offshore processing easier. Law is now only for governments, not people, and certainly not refugees." 

*   *   *

PNG Police: divided over the warrant to arrest the PM

THE odour of corruption also wafts across the Torres Straight from Papua New Guinea, host to 1,200 asylum seekers kept in soul destroying conditions on Manus Island. 

PNG is another client state of Australia, bribed into obedience by Australian aid and investment. 

Australia is in cahoots with PNG Prime Minister Peter O'Neill who last month showed that he is in the same canoe as Nauru when it comes to upholding the rule of law and the independence of the legal process. 

O'Neill is the subject of a corruption investigation by Taskforce Sweep, concerning allegedly illegal transfers of $28 million to a local law firm, Paraka Lawyers. 

The task force claims that O'Neill authorised the payment for legal bills paid to Paraka, but the bills were  inflated or fabricated, and do not represent real legal work done for the government between 2003-2006.

The ABC reported from Port Moresby that O'Neill's lawyer sought to temporarily restrain the arrest warrant, but not by directly challenging it. Instead, the prime minister was joined as a party onto an existing case related to the controversial legal bills. 

Lawyer Paul Paraka: received $28 million authorised by the PM

On June 12, the police commissioner, Tom Kulunga, signed an arrest warrant to be served on the PM in relation to the payments to the law firm. 

Sections of the police force are opposed to O'Neill's handpicked acting commissioner Geoffrey Vaki, who is doing everything possible to keep his patron from facing questions about the money paid to Paraka. 

Vaki is seeking to quash the district court's decision to grant the warrant. At the same time other sections of the police force are seeking to uphold the warrant. 

Here's a timeline, showing how the law and justice processes has been subvverted. 

Fri. June 13 - Police commissioner Kulunga convicted of contempt of court for not following an order supported by the PM to reinstate Geoffrey Vaki to the position of deputy police commissioner. Vaki had been accused of pushing a woman out of a moving car.  

Mon. June 16 - Arrest warrant served on O'Neill. Assistant Police Commissioner (Crimes), Thomas Eluh, requests O'Neill to present himself for questioning. Vaki replaces Kulunga as acting police commissioner.  

Tues. June 17 - O'Neill sacks Attorney General Kerenga Kua over disagreements about proposed constitutional amendments. This happens just hours before a stay on O'Neill's arrest warrant was due to be heard in court. Kua is replaced as AG by Ano Pala. 

Wed. June 18 - A new police lawyer is appointed by Vaki and Pala. The lawyer is instructed to consent to the stay on O'Neill's arrest warrant. Vaki is subsequently arrested by his own men on charges of abuse of office and perverting the course of justice. Deputy Police Commissioner, Simon Kauba, appeals for O'Neill to present himself for questioning. O'Neill responds by dismissing Kauba for "not complying with instructions" and vows to terminate "everybody who continues to undermine the work of the government". O'Neill disbands Taskforce Sweep, the corruption investigation he set up in 2011. Ongoing cases are to be handed over to the police and a new Independent Commission Against Corruption that is being established. 

Vaki (second left): doing his best to get the PM out of corruption mess

Fri. June 20 - Former attorney general Kua calls on O'Neill to resign. He attacks the proposed amendment to article 145 of the PNG Constitution, which would mandate that a PM ousted by a no-confidence vote would have to be replaced with someone from the party that gained the most votes at the last election. O'Neill has already extended the period to 30 months, during which no-confidence votes cannot take place. The parliament was due to consider the proposed amendment on June 24. 

Sun. June 22 - Assistant Police Commissioner, Thomas Eluh, gets a 21-day suspension for insubordination after making statements to the media about the state of the police system. 

Mon. June 23 - Vaki bans a protest march planned for the sitting of the parliament the following day. 

Tues. June 24 - O'Neill defers debate on the proposed constitutional amendment. 

There have been fresh excitements this month. 

Wed. July 16 - A lawyer representing Papua New Guinea's police commissioner Vaki has been interviewed by fraud squad officers on suspicion of misappropriation and money laundering. Sam Bonner was arrested outside the National Court House in Port Moresby by police investigating corruption allegations against Prime Minister Peter O'Neill. Bonner has been assisting Vaki in his attempt to set aside arrest warrants for the PM. 

Thurs. July 17 - Police fraud officers have filed contempt proceeding against Police Commissioner Geoffrey Vaki for refusing to enforce the warrant of arrest on the Prime Minister. The contempt proceedings were filed by the director of National Fraud and Anti-Corruption Directorate, Mathew Damaru, and deputy director, Timothy Gitua, on the grounds that Vaki had intentionally interfered with and failed to allow fraud officers to execute the arrest warrant against the PM. A total of four charges were laid in the contempt proceedings against Vaki, including a deliberate failure by Vaki since taking office as Police Commissioner to support the work of the Fraud Squad to execute the arrest warrant on the Prime Minister; provision of policemen to protect the Prime Minister from being arrested; and making public statements through the media that he would not implement the arrest warrant on the Prime Minister.

Fri. July 18 - The bid by Police Commissioner Geoffrey Vaki to challenge the initial arrest warrant against Prime Minister Peter O'Neill at the National Court was further adjourned to today due to procedural issues. Vaki filed the application to judicially review the district court's decision that allowed fraud officers to execute a warrant of arrest on O'Neill. There was another adjourment, so that procedural issues could be resolved. 

So far, to avoid further investigation, O'Neill has sacked the police commissioner, a deputy police commissioner, the attorney general and the corruption taskforce. Anyone else who defies him also faces the sack. 

The continuing chaotic situation has not stirred the Australian government to politely ask that PNG observe the independence of the prosecutorial process. In fact, propping up O'Neill's corrupt government suits Canberra down to the ground. 

Meanwhile, the Australian High Court is trying to get to grips with the fate of 150 asylum seekers, mostly Tamils, floating onboard an Australian customs vessel in the Indian Ocean. 

Reporters: Kate Lilly and R. Ackland

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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