Transcript
DAVID LAMBOURNE: The amendments to the Passport Act now mean that the Minister for Justice and Border Control, David Adeang, has the power to cancel the passport for almost any reason that he can come up with. They have tried to tighten any provisions around challenge to his decision to cancel a passport and they have also tried to remove the role of the court in reviewing any decision to cancel a passport.
DON WISEMAN: My reading of it, as an amateur, is that it actually does that - that there is no ability to appeal a decision by the Justice Minister.
DL: The power to appeal on a point of law to the Supreme Court, which had been in the Passport Act before the amendment, that has been removed and now the only person who has the power to consider an application for a review of the minister's decision is the president, who at the moment is a person over whom the minister of justice has an enormous amount of power and influence. But the role of the court has not been fully excluded, so if the minister of justice was to make a decision that was outside his powers, that decision could still be challenged in the courts by judicial review. I think they think they have removed that ability but they haven't. The law is extremely badly drafted. That is not surprising, given that the Nauru Government over the last couple of years has kicked out just about any decent lawyer they have ever had, including some very good legislative drafters, and the law doesn't, in some respects, do all I think the government wanted it to do.
DW: Where then does this leave Sprent Dabwido, who has significant health problems - needs to get to Australia as soon as he can - and the 19 others who were facing charges to do with this protest against the government, but still haven't had their day in court really, have they? They just remain in limbo for however long.
DL: Yes there are basic principles of international human rights. For example, in the International Declaration on Human Rights there is provision in there, one of the fundamental rights for a person to both enter and leave their country. So this action on the part of the Nauru Government is in clear breach of that fundamental international principle of human rights. Unfortunately, that principle is not enshrined in the Nauru Constitution. It was an omission when the Nauru Constitution was drafted in 1968. That means that an individual would have no basis to challenge the current passports law in Nauru on a human rights basis, and so Sprent and the other people who are involved really have very little option and really are stuck. I mentioned earlier that the law is very badly drafted. One of the things they have done is they have broadened the power of a minister to cancel a passport but they haven't in any way changed the grounds on which a minister can refuse an application for a passport, so Sprent's passport has been cancelled. He could apply for another passport and the minister does not have available to him the same grounds for refusal of that application as he does for cancelling the passport in the first place. Of course, he would be obliged, in my view under the law to issue the passport, but he could then cancel straightaway. So we find ourselves in some sort of weird dilemma that under the law Sprent has the right to have a passport issued to him but not a right to keep it once it is issued.
