Law of Nauru
Encyclopedia
Nauruan law, since Nauru
's independence from Australia
in 1968, is derived primarily from English and Australian
common law
, though it also integrates indigenous customary law to a limited extent. Nauruan common law is founded mainly on statute law enacted by the Parliament of Nauru
, and on precedents set by judicial
interpretations of statutes, customs and prior precedents.
, Papua New Guinea
and Australia which have been adopted by Nauru and are still in force; Acts of Parliament passed since independence in 1968; Regulations; precedents of the Supreme Court of Nauru; and customary law". Article 85 of the Constitution
stipulates that law in existence at the time of independence continues to be applied until amended or repealed by Parliament.
, adopted in 1968, establishes itself as the supreme law
of the country, and provides for the voiding of any statute inconsistent with it (art.2). Art.54(1) grants to the Supreme Court
"original jurisdiction to determine any question arising under or involving the interpretation or effect of any provision of th[e] Constitution".
is founded on the Queensland Criminal Code of 1899, as amended by the State of Queensland
up to 1921, by the colonial administration for Nauru from 1921 to 1968, and by the Parliament of Nauru since 1968. In particular, the code has been amended three times by the Parliament of Nauru since independence, with the Criminal Code Amendment Act 1971, section 220 of the Criminal Procedure Act 1972, and most recently the Criminal Code (Amendment) Act 2006, which creates the offences of "sabotage of national infrastructure" and "threats against people carrying out their lawful duties".
In addition to British and Australian statutes, and certain regulations applied to Papua New Guinea by Australia during the colonial period, the Parliament of Nauru is the law-making body for Nauru. The law-making process is derived from the legislative process of the British and Australian Parliaments, somewhat simplified as Nauru's Parliament is unicameral
. Unlike the United Kingdom or Australia, however, the enactment of laws in Nauru does not require the assent of the head of State. A bill is enacted when it has been passed by Parliament, and certified as such by the Speaker
.
. However, article 4 of the Custom and Adopted Laws Act 1971 stipulates that "the common law and the statutes of general application [...] which were in force in England
on the thirty-first day of January, 1968, are hereby adopted as laws of Nauru"; that "[t]he principles and rules of equity which were in force in England on the thirty-first day of January, 1968, are hereby adopted as the principles and rules of equity in Nauru"; and that "in every civil cause
or matter instituted in any Court law and equity shall be administered concurrently". Art.5 specifies that English common law applies only insofar as it is "not repugnant to or inconsistent with the provisions" of any statute law applied in Nauru.
inherited from England and Australia, Nauruan case law is primarily based on precedents set in the Supreme Court
. Due to the country's small size, Nauru has simply one District Court, with appeals heard by the Supreme Court. Appeals may be heard from the Supreme Court to the High Court of Australia
on all but constitutional matters, enabling Australian High Court precedents to continue entering Nauruan jurisprudence. Additionally, a Family Court operates separately.
Nauru's Supreme Court has ruled on the following constitutional cases:
without his or her consent, or that it would "deprive the parents of a child of its custody and control without their consent". A custom may be "expressly, or by necessary implication, abolished, altered or limited by any law enacted by Parliament"; statute law prevails over custom.
, Minister for Health, Justice and Sports, addressed the United Nations Human Rights Council
within the context of Nauru's Universal Periodic Review. Summarising Nauru's report to the Council, he stated that the country was undergoing legal reforms with an aim to improve guarantees on human rights. He drew the Council's attention, in particular, to the Nauruan constitutional referendum of 2010
, which had aimed unsuccessfully to amend the Constitution and expand its Bill of Rights. Batsiua stated: "Had the referendum received the required support, the constitutionally guaranteed rights and freedoms of the people of Nauru would have been something that all nations of the world might have aspired to. It would have been the first Constitution in the world to protect the rights of disabled persons, and the second in the region, after Papua New Guinea, to provide for the protection of environmental rights. It would have prohibited the death penalty, guaranteed the rights of children, recognised the right to receive education and health. It would have enshrined the right to receive maternity leave, and introduced a right to access information, among other things." In addition, he stated Parliament was considering institutional and legal reforms to create the office of an ombudsman
, and review Nauru's criminal code, "much of which remains unchanged since [...] 1899". The decriminalisation of "homosexual activity between consenting adults" was "under active consideration".
Nauru
Nauru , officially the Republic of Nauru and formerly known as Pleasant Island, is an island country in Micronesia in the South Pacific. Its nearest neighbour is Banaba Island in Kiribati, to the east. Nauru is the world's smallest republic, covering just...
's independence from Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
in 1968, is derived primarily from English and Australian
Law of Australia
The law of Australia consists of the Australian common law , federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, though it also integrates indigenous customary law to a limited extent. Nauruan common law is founded mainly on statute law enacted by the Parliament of Nauru
Parliament of Nauru
The Parliament of Nauru has 18 members, elected for a three year term in multi-seat constituencies. The President of Nauru is elected by the members of the Parliament.The members of the Parliament of Nauru are elected by a positional voting system....
, and on precedents set by judicial
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
interpretations of statutes, customs and prior precedents.
Sources
Nauruan law comprises a "number of Ordinances from the pre-independence administration which are still in force; certain laws of the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, Papua New Guinea
Papua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...
and Australia which have been adopted by Nauru and are still in force; Acts of Parliament passed since independence in 1968; Regulations; precedents of the Supreme Court of Nauru; and customary law". Article 85 of the Constitution
Constitution of Nauru
The constitution of the Republic of Nauru was adopted following national independence on 31 January 1968.In 2007 there were political debates in progress with a view to amend aspects of the Constitution, owing to the challenge of widely acknowledged political instability...
stipulates that law in existence at the time of independence continues to be applied until amended or repealed by Parliament.
Constitution
The Constitution of NauruConstitution of Nauru
The constitution of the Republic of Nauru was adopted following national independence on 31 January 1968.In 2007 there were political debates in progress with a view to amend aspects of the Constitution, owing to the challenge of widely acknowledged political instability...
, adopted in 1968, establishes itself as the supreme law
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
of the country, and provides for the voiding of any statute inconsistent with it (art.2). Art.54(1) grants to the Supreme Court
Supreme Court of Nauru
The Supreme Court of Nauru is the highest judicial court of the Republic of Nauru.-Constitutional establishment:It is established by part V of the Constitution, adopted upon Nauru's independence from Australia in 1968. Art. 48 of the Constitution establishes the Supreme Court as "a superior court...
"original jurisdiction to determine any question arising under or involving the interpretation or effect of any provision of th[e] Constitution".
Statutes
Nauruan criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
is founded on the Queensland Criminal Code of 1899, as amended by the State of Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
up to 1921, by the colonial administration for Nauru from 1921 to 1968, and by the Parliament of Nauru since 1968. In particular, the code has been amended three times by the Parliament of Nauru since independence, with the Criminal Code Amendment Act 1971, section 220 of the Criminal Procedure Act 1972, and most recently the Criminal Code (Amendment) Act 2006, which creates the offences of "sabotage of national infrastructure" and "threats against people carrying out their lawful duties".
In addition to British and Australian statutes, and certain regulations applied to Papua New Guinea by Australia during the colonial period, the Parliament of Nauru is the law-making body for Nauru. The law-making process is derived from the legislative process of the British and Australian Parliaments, somewhat simplified as Nauru's Parliament is unicameral
Unicameralism
In government, unicameralism is the practice of having one legislative or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which consists of one chamber or house...
. Unlike the United Kingdom or Australia, however, the enactment of laws in Nauru does not require the assent of the head of State. A bill is enacted when it has been passed by Parliament, and certified as such by the Speaker
Speaker (politics)
The term speaker is a title often given to the presiding officer of a deliberative assembly, especially a legislative body. The speaker's official role is to moderate debate, make rulings on procedure, announce the results of votes, and the like. The speaker decides who may speak and has the...
.
Common law and equity
The Constitution makes no reference to common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. However, article 4 of the Custom and Adopted Laws Act 1971 stipulates that "the common law and the statutes of general application [...] which were in force in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
on the thirty-first day of January, 1968, are hereby adopted as laws of Nauru"; that "[t]he principles and rules of equity which were in force in England on the thirty-first day of January, 1968, are hereby adopted as the principles and rules of equity in Nauru"; and that "in every civil cause
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
or matter instituted in any Court law and equity shall be administered concurrently". Art.5 specifies that English common law applies only insofar as it is "not repugnant to or inconsistent with the provisions" of any statute law applied in Nauru.
Case law
In addition to applicable case lawCase law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
inherited from England and Australia, Nauruan case law is primarily based on precedents set in the Supreme Court
Supreme Court of Nauru
The Supreme Court of Nauru is the highest judicial court of the Republic of Nauru.-Constitutional establishment:It is established by part V of the Constitution, adopted upon Nauru's independence from Australia in 1968. Art. 48 of the Constitution establishes the Supreme Court as "a superior court...
. Due to the country's small size, Nauru has simply one District Court, with appeals heard by the Supreme Court. Appeals may be heard from the Supreme Court to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on all but constitutional matters, enabling Australian High Court precedents to continue entering Nauruan jurisprudence. Additionally, a Family Court operates separately.
Nauru's Supreme Court has ruled on the following constitutional cases:
- In re the Constitution, Jeremiah v Nauru Local Government Council (1971). Held by Chief Justice Ian Thompson: Article 3 of the Constitution guarantees the "fundamental rights and freedoms of the individual" exclusively within the bounds of the rights explicitly set out in articles 4 to 13. There is no constitutional right to marriage, and marriage may therefore be restricted by statute.
- In re the Constitution of Nauru (1971). Held by Chief Justice Ian Thompson: Any statute restricting the right of Nauruans aged 20 or more to vote in legislative elections is void due to inconsistency with art.29 of the Constitution, which provides that "Members of Parliament shall be elected in such manner as is prescribed by law, by Nauruan citizens who have attained the age of twenty years". Nauruans may not be deprived of the right to vote on the grounds of unsoundness of mind, nor due to being in gaol.
- Three Questions Referred under Articles 36 & 55 of the Constitution (1977). Held by Chief Justice Ian Thompson: Article 32(b) of the Constitution should be interpreted as meaning that any Member of Parliament convicted of an offence punishable by a year or more in gaol vacates his or her seat in Parliament immediately upon conviction, any appeal notwithstanding.
- Four Questions Referred under Article 55 of the Constitution (1977). Held by Chief Justice Ian Thompson: Article 61 of the Constitution "is not intended to exclude the presentation of Bills for supplyMoney billIn the Westminster system , a money bill or supply bill is a bill that solely concerns taxation or government spending , as opposed to changes in public law.- Conventions :...
otherwise than in accordance with [the procedure it sets out for the withdrawal of moneys from the Treasury], if their presentation is otherwise expressly or implicitly authorised by the Constitution". The Supply Act 1977 is not unconstitutional. - In the Matter of the detention of Uti Siose under Article 5 of the Constitution of Nauru (1982). Held by Chief Justice Ian Thompson: The Criminal Procedure Act 1972 was unconstitutional insofar as it permitted the arrest of a person absconding from bail. Art. 5 of the Constitution provides that "No person shall be deprived of his personal liberty, except [...] (c) upon reasonable suspicion of his having committed, or being about to commit, an, offence"; absconding from bail was not yet an offence at the time of the case.
- the Matter of Article 36 of the Constitution, Reference to the Supreme Court by Bobby Eoe (1988), a case arising under art.36 ("Any question that arises concerning the right of a person to be or to remain a member of Parliament shall be referred to and determined by the Supreme Court"). Held by Chief Justice Donne: Parliament's declaration of vacancy of one of its seats is, in this case, valid in accordance with art.32 of the Constitution.
- Constitutional Reference; In re Article 55 of the Constitution (2003). In accordance with art.55 of the Constitution, which permits the CabinetCabinet of NauruThe Cabinet of Nauru is the cabinet of the government of the Republic of Nauru.The Constitution of Nauru specifies that the Cabinet is composed of the President and of four or five members of Parliament appointed to Cabinet positions by the President.The Cabinet is "collectively responsible to...
to refer a constitutional question to the Supreme Court, Chief Justice Barry Connell held that the Speaker's declaration of a successful parliamentary motion of no confidenceMotion of no confidenceA motion of no confidence is a parliamentary motion whose passing would demonstrate to the head of state that the elected parliament no longer has confidence in the appointed government.-Overview:Typically, when a parliament passes a vote of no...
against the Cabinet was invalid as it had not met the constitutional requirements for such a motion. - Constitutional Reference; In re Dual Nationality and Other Questions (2004). Question referred to the Supreme Court by Cabinet in accordance with art.55. Held by Chief Justice Barry Connell: "There is no direct prohibition on a member of Parliament holding dual citizenship."
- In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2007). Chief Justice Robin MillhouseRobin MillhouseRobin Rhodes Millhouse QC has been, at various times, the South Australian Attorney-General, the first Australian Democrats parliamentarian, and the Chief Justice of both Kiribati and Nauru....
QCQueen's CounselQueen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
answered questions submitted by Cabinet (in accordance witrh art.55) on the meaning of articles 36, 40 and 45 of the Constitution. - In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2008). Similar to the above. Answered by Millhouse CJ.
- In re Article 36 of the National Constitution (2008). Held by Chief Justice Robin Millhouse QC: The Speaker must consult the Supreme Court before declaring a seat in Parliament vacant.
- In the Matter of the Constitution and in the Matter of the Dissolution of the Eighteenth Parliament (2010). Held by Justice John von Doussa: The Constitution provides the PresidentPresident of NauruThe President of Nauru is elected by Parliament from amongst its members. He is both the head of state and head of government of Nauru. Nauru's unicameral Parliament has 18 members, with an electoral term of 3 years. Political parties only play a minor role in Nauru politics, and there has often...
with full latitude to determine whether a state of emergencyState of emergencyA state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
should be declared.
Custom
The Constitution makes no reference to custom. However, the Custom and Adopted Laws Act 1971 provides that the "institutions, customs and usages of the [indigenous] Nauruans" existing prior to the commencement of the Act shall have "full force and effect of law" to regulate certain issues of land ownership, other issues of property and inheritance, and more generally "any matters affecting [indigenous] Nauruans only". A custom is invalid to the extent that it would deprive a person of his or her propertyProperty
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
without his or her consent, or that it would "deprive the parents of a child of its custody and control without their consent". A custom may be "expressly, or by necessary implication, abolished, altered or limited by any law enacted by Parliament"; statute law prevails over custom.
Reform
In January 2011, Mathew BatsiuaMathew Batsiua
Mathew Jansen Batsiua is a Nauruan politician. Batsiua, a former health minister, was named Foreign Minister of Nauru on November 10, 2011, replacing Kieren Keke.-Parliamentary role:...
, Minister for Health, Justice and Sports, addressed the United Nations Human Rights Council
United Nations Human Rights Council
The United Nations Human Rights Council is an inter-governmental body within the United Nations System. The UNHRC is the successor to the United Nations Commission on Human Rights , and is a subsidiary body of the United Nations General Assembly...
within the context of Nauru's Universal Periodic Review. Summarising Nauru's report to the Council, he stated that the country was undergoing legal reforms with an aim to improve guarantees on human rights. He drew the Council's attention, in particular, to the Nauruan constitutional referendum of 2010
Nauruan constitutional referendum, 2010
A constitutional referendum was held in Nauru on 27 February 2010. Voters were asked to vote on amendments to the constitution, most notably a change to a directly elected president and a strengthening of human rights legislation...
, which had aimed unsuccessfully to amend the Constitution and expand its Bill of Rights. Batsiua stated: "Had the referendum received the required support, the constitutionally guaranteed rights and freedoms of the people of Nauru would have been something that all nations of the world might have aspired to. It would have been the first Constitution in the world to protect the rights of disabled persons, and the second in the region, after Papua New Guinea, to provide for the protection of environmental rights. It would have prohibited the death penalty, guaranteed the rights of children, recognised the right to receive education and health. It would have enshrined the right to receive maternity leave, and introduced a right to access information, among other things." In addition, he stated Parliament was considering institutional and legal reforms to create the office of an ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
, and review Nauru's criminal code, "much of which remains unchanged since [...] 1899". The decriminalisation of "homosexual activity between consenting adults" was "under active consideration".
External links
- Selected Nauruan statute law and case law, Pacific Islands Legal Information Institute
- Remarks on Nauruan law by a former Senior Legal Officer (University of the South PacificUniversity of the South PacificThe University of the South Pacific is a public university with a number of locations spread throughout a dozen countries in Oceania. It is an international centre for teaching and research on Pacific culture and environment. USP's academic programmes are recognised worldwide, attracting students...
School of Law)