This article was first published in the print edition of The Saturday Paper on Mar 21, 2015 as “Justice undone”
Geoffrey Eames receives me at a spartan table in his temporary office at the Owen Dixon Chambers in Melbourne’s legal district. The white bookshelves are bare. It’s a far cry from his time as a romantic warrior for the legal rights of Indigenous people in a wig and gown as a barrister at law, an assisting counsel at the Maralinga and Aboriginal deaths in custody royal commissions, a judge at the Victorian Supreme Court and the Court of Appeal and, since 2010, the chief justice of Nauru. In January 2014 he was denied a visa to return to Nauru after he granted an injunction from Melbourne to prevent the deportation of Nauru’s resident magistrate Peter Law.
Ramona Koval How did you come to be in Nauru?
Geoffrey Eames I was sitting in Melbourne going through my junk mail and found one which said, “Re: Chief Justice”, which grabbed my attention. It was the parliamentary counsel in Nauru saying Nauru needs a chief justice, would you be interested?
RK Was there any resentment having a foreigner as chief justice?
GE Probably. People would have loved to have had their own people leading the court, but there were very few people with a law degree. People accepted it.
RK When did you suspect that your relations with the current president, Baron Waqa, were not the best?
GE Extraordinarily I thought he and I were having particularly good relations. What I didn’t know was that I had completed a constitutional case some months before the great turmoil erupted, an action against the speaker, Ludwig Scotty, and I ruled he acted unconstitutionally. Contempt of court proceedings were subsequently brought against him. He swore an affidavit saying it was all a mistake, he was sorry, he said he accepted the ruling was right. I gave him the benefit of the doubt that it wasn’t a deliberate flouting of the court’s authority. I didn’t know then that he had told all and sundry, “We’ve got to get rid of this bloke”, and so when the events took place and my visa was removed, he was very much a player. He would seem to have been extremely close to the government.
Baron Waqa, I met for the first time in 2013. He seemed to me to be a very amiable person. I raised with him a number of concerns I had with the detention centre. I was being very cautious. I knew if I went to the camps and conducted an inspection, I would have to recuse myself, because of the appearance of impartiality. But I was invited by the secretary of justice and some welfare workers to do so. I mulled over what to do and asked Justice John von Doussa to sit on any future court cases. I inspected about the same time as Sarah Hanson-Young and Julie Bishop. I was absolutely horrified. I had no idea just how depressing and unpleasant the environment was, so much so that I decided to conduct some quiet diplomacy and I arranged to see the president. I said to him, “I am really shocked, especially about the conditions for the children.” You visit the main admin area where all the workers live with airconditioned accommodation with fantastic facilities, and you go over the hill where the people are staying, there’s no airconditioning and there were over 100 kids there. If you stepped into the tent it would just about blow you away: the heat, the glare from the ground which is just like metal. The kids had nothing to do.
And the president’s response – which I would have kept confidential but I now regard what happened in the abuse of the rule of law as not requiring me to maintain confidentiality – was “I know it’s terrible, I’ve spoken to Tony Abbott and I’m proposing to him that we put the children in the airconditioned buildings.” That conversation was on 26/11/13. The breaches of the law occurred on 19/01/14. So shortly after I left Nauru at the start of December these events were obviously put in train. So far as I know, nothing happened about the children.
So, you know, Australia has enormous power, and the president said Tony Abbott had told him if he wants anyone removed from the island [misbehaving Australian contract workers], just give him the name and he’s gone [clicks his fingers] like that!
RK Was your name on that list? After you revealed your peaking interest in asylum seekers and refugees?
GE Certainly at the time I didn’t think that was what had led to the removal of the magistrate and the subsequent removal of myself. I thought there were other factors.
RK And now?
GE I don’t know. I don’t think the Nauruan government liked the idea of an independent judge. I’ve got no idea about the refugee issue; it would be purely speculation … I think Australia has shown itself in the past as prepared to speak up on the rule of law. They took a view of the Fijian coup, and I think as a senior funder of Nauru, we’ve got not only a right to say something but an interest in upholding of the rule of law in the Pacific region… I would have thought a strong statement from Australia to ameliorate the conditions of the children and accelerate the processes would have got an immediate response from Nauru. The bottom line is that the conditions of asylum seekers, especially the conditions for the children, were totally unacceptable and that Australia should have not only recognised it but acted on it.
When the resident magistrate was arrested and deported against an injunction which I’d imposed on the government, it was obvious to me that the decisions being taken were being made by the minister for justice and border control [David Adeang]. [He is] the power behind the throne. I thought I was pretty secure with a lifetime appointment and a constitutional guarantee, but it hadn’t occurred to me that the rather simpler exercise was removing my visa so I couldn’t do my job.
RK You felt bruised?
GE There was a frenetic period following this when I felt a heavy duty to protect the constitution as I saw it and to defend the rule of law, and it was pretty obvious the government didn’t have the same perspective. It was completely hopeless,
I couldn’t subpoena anyone, I couldn’t call witnesses, I had no power to take the oath in Victoria. It was plain that they were replacing me. In some ways resigning [last March] and departing was the first relief I had in months.
RK What did you think of the response from the Australian government?
GE I thought it was pathetic. Julie Bishop made a statement that if there was breach of law the government would be concerned. I thought to myself, what’s the “if”? They tolerated a situation where an entire judiciary can be removed in breach of court orders and this is in a country where Australia had huge influence. There’s no doubt that if Australia had taken a strong position there may well have been a chance of the Nauru government rethinking their position, but plainly they achieved what they’d regard as a remarkable coup – they got rid of their judiciary. They followed this up with the expulsion since May 2014 of five members of parliament who had complained about what had happened to the judiciary. Nauru is a closed society. The government controls the media, with directions that they are not allowed to interview or place on the news any opposition speakers. They imposed an $8000 visa fee for [foreign] journalists. The opposition politicians expressed criticism to international media attacking the breach of law, outside of parliament. They were removed from the house for exercising their democratic rights to freedom of speech. They have had a very successful coup d’état.
RK What’s the Australian interest in continuing relations with a failed state such as Nauru?
GE Plainly it’s the refugee centre. There’s a mutual interest. Nauru has a very strong financial interest in it and Australia has an interest in secrecy and in co-operation. The merger of those joint interests means that if the government had expressed a strong view about the breach of the rule of law, they couldn’t tolerate being told by Nauru that you can take your detention centre and go.
RK What about the decision to keep refugees in Nauru, never to be settled in Australia?
GE To simply turn people out from the camp into a hostile environment, into a community who thought their jobs would be taken by refugees, was and remains a situation fraught with danger. Now some people might be going to Cambodia. Who knows what the circumstances are in which that’s occurring? The problem of secrecy means it’s difficult to make informed assessments of the situation.
RK Do you lose sleep over what might be happening in Nauru now to refugees, asylum seekers, and indeed the people of Nauru, who are in a pretty parlous position themselves?
GE I feel very sad about the people of Nauru. It may well be at the moment no one can see a problem. The court presumably is functioning, I don’t know, the parliament is presumably quiet since there’s no opposition, the jobs are still there … If events as blatant as this can occur without it having any repercussions for democracy, it must undermine democracy, whether or not people appreciate it at the time.