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Australia has an obligation to support the rule of law in Nauru

Australia should respond to the extraordinary actions of the government of Nauru in deporting and terminating the employment of its only magistrate, Peter Law, and denying its Chief Justice, Geoffrey Eames…

Australia has a duty to ensure asylum seekers who are facing trial after being sent to Nauru are not denied their rights to proper legal process. AAP

Australia should respond to the extraordinary actions of the government of Nauru in deporting and terminating the employment of its only magistrate, Peter Law, and denying its Chief Justice, Geoffrey Eames, a visa to re-enter the country.

We should act to protect the rights of the asylum seekers whom we have transferred to Nauru and to uphold our obligations to act against human rights violations.

Nauruan justice minister David Adeang had declared two Nauru residents prohibited immigrants and given them a week to leave the country. They appealed to the courts and the magistrate had granted an interim injunction against the deportations. The cases were to come before the courts on Monday.

Law said:

The timing of this makes it very obvious in my mind what this is all about.

Eames said that the Nauruan government’s actions were:

…politically motivated, designed to have the decisions overturned by a new magistrate and amounted to an abuse of the rule of law.

The immediate focus of concern is the fate of about 40 asylum seekers who are facing trial in Nauru in relation to disturbances at the island state’s regional processing centre last year. Australia’s immigration minister Scott Morrison said on Monday that:

They’ll face the Nauruan courts as they have been, they’ll be subject to Nauruan law and it’s for the Nauruans to sort out this matter.

Contrary to the minister’s view, Australia still has obligations to the asylum seekers it has transferred to Nauru and Papua New Guinea. The European Court of Human Rights found in 2011 that Belgium had wrongly returned an Afghan asylum seeker to Greece. The court decided that:

Belgium and Greece have ratified the [United Nations] Refugee Convention, which defines the circumstances in which a state must grant refugee status to those who request it, as well as the rights and duties of such persons. All nationals of third countries or stateless persons have the right to apply for asylum.

Australia and Nauru have also ratified the Refugee Convention. The asylum seekers on Nauru have a right to apply for asylum in Australia, a right that has not been removed by their transfer to Nauru. Australia is obliged at the very least to ensure that the applications for asylum that the asylum seekers make in Nauru are considered in a framework of the rule of law.

The spokesperson of the UN High Commissioner for Refugees (UNHCR), commenting in July 2013 on the refugee resettlement agreement Australia had concluded with Papua New Guinea, said:

UNHCR considers that, in the context of transfer arrangements, Australia maintains a shared responsibility with PNG to ensure appropriate legal standards.

With regard to the 40 asylum seekers in the Nauruan courts, Australia and Nauru must ensure them ensure a fair trial under Article 16 of the Refugee Convention. This states:

A refugee shall have free access to the courts of law on the territory of all Contracting States. A refugee shall enjoy the same treatment as a national in matters pertaining to access to the courts.

Australia, in any case, has an obligation to take action with the Nauruan government to reverse these decisions. The UN Human Rights Committee has said that a state, such as Australia, which is a party to the International Covenant on Civil and Political Rights (ICCPR):

…must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. The enjoyment of Covenant rights must be available to all individuals, regardless of nationality or statelessness, such as asylum seekers.

A court challenge to deportation orders by Nauruan foreign minister David Adeang, pictured with Australia’s Scott Morrison, triggered the crisis. AAP/Lukas Coch

International law has tended to expand the definition of “effective control”. In any case, the asylum seekers were transferred to Nauru by Australia and detained in facilities built and staffed by Australia under conditions set by Australia. By any commonsense definition, they are under Australia’s “effective control”.

Australia also has obligations as a party to the ICCPR urgently to persuade Nauru (which has signed but not ratified the covenant) to reverse these decisions. The right to a fair trial is guaranteed by Article 14 of the ICCPR.

The UN Human Rights Committee has said:

The dismissal of judges by the executive…without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary.

But is Australia entitled to raise this issue with the government of Nauru? The International Court of Justice decided in 2012 that Belgium could intervene in Senegal’s failure to prosecute a case of alleged torture in Senegal. This was because all states that are parties to one of the human rights conventions have “a common interest in compliance with the obligations” under the Refugee Convention. The court found that this imples that:

…the obligations in question are owed by any State party to all the other States parties to the Convention. It follows that all the States parties “have a legal interest” in the protection of the rights involved.

Australia owes obligations to the asylum seekers we have transferred to Nauru and we have a legal interest in the maintenance of the rule of law in Nauru. The Australian government should intervene urgently with the government of Nauru to reverse its dismissal of Peter Law and its prevention of the return of Geoffrey Eames to Nauru.

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102 Comments sorted by

  1. Darren G

    logged in via email @yahoo.com

    Sounds like people would have been treated just as well in Malaysia. Makes you wonder about the lack of principles of this government and - Im sorry to say - the lack of principles my country, Australia, now shows to the world. Add this to the Timor bullying and we now present as a regional would be bully - I say "would be" because we sit to the south of a country of 200 million people and, for reasons utterly incomprehensible to anyone with a brain, the government seems to think we have some sort of right to tell them what to do. Counterproductive in the extreme.

    Principles, shame, and responsibility don't seem to be concepts familiar to the people responsible for all this.

    What are the people in charge thinking? Do they not see the way they are complicit in the erosion of ordinary standards of Australian decency?

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    1. R. Ambrose Raven

      none

      In reply to Darren G

      Haters are as attracted to vilifying the weak and the marginalised as bodysnatchers are to a burial.

      Yes, the haters claim that “success” means stopping the boats (which implicitly includes turning them back). To normal people, a successful policy is not only one that achieves a sensible result in an efficient manner (meaning that the cost is proportional to the result) but at the very least clearly does less harm than the good that is achieved.

      Current refugee practice is an appalling example…

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  2. Jena Zelezny

    research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

    "They’ll face the Nauruan courts as they have been, they’ll be subject to Nauruan law and it’s for the Nauruans to sort out this matter." The Minister is wrong! (morally and in terms of the UNHRC)

    This article is both fascinating and disturbing. The Abbott government is now revealing the ugliness that was hidden behind the election campaign dynamics. We are now seeing their true agenda (Cory Bernardi on morals/family, Chris Pyne on Education, Kevin Andrews on Welfare and now Scott Morrison on…

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    1. Michael Shand

      Software Tester

      In reply to Jena Zelezny

      Don't forget that no spine labour was telling us they would do pretty much the same thing before the election.

      Do not make the mistake of thinking this is a Liberal problem, this is an Australia

      The only party standing up for human rights in the last election was the greens - who obviously are to blame for everything

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    2. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Michael Shand

      I'm talking about the whole package now being delivered Michael. Family, Education, Welfare and Immigration.

      I agree that Labor's policy on Immigration was inhuman and I am not a party political animal devoted to supporting the line no matter what.

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    3. Michael Shand

      Software Tester

      In reply to Jena Zelezny

      Thanks for the clarification, I see your working on your second PHD in Humanities, very impressive, have you thought about contributing an article to the conversation?

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    4. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Michael Shand

      I might if they paid but I don't think they do. I just like reading, keeping up with the news and dropping in the odd comment.

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    5. Andy Cameron

      Care giver

      In reply to Jena Zelezny

      Jena, Nauru is a sovereign nation, it does not take orders on judicial appointments, migration policy, or governance full stop from the UNHRC!

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    6. wilma western

      logged in via email @bigpond.com

      In reply to Michael Shand

      Agree Michael . The Coalition now has problems that are really embarrassing and getting worse by the day. AS the article clearly and extensively argues Australia has legal as well as moral obligations to the internees on Nauru. And as you say Labor's recent decisions reduce their credibility on this issue.

      The government has been forced to set up an official inquiry into how and why navy ships"accidentally" intruded into Indonesian waters.

      Now an Admiral has gone on Twitter to emphatically…

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    7. wilma western

      logged in via email @bigpond.com

      In reply to wilma western

      Sorry for typos - "defence forces" ... "reprimanded"..."occupation" ... "foot sloggers"

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    8. Michael Shand

      Software Tester

      In reply to wilma western

      I think we, the voting public need to understand one very fundamental and important point about politics.

      In a 2 party system, overtime the 2 party's will become more a like and less different.

      The reason for this is, if labour lean to the left....they are hardly going to gain seats, they might gain some fromthe greens but they were going to be redirected back to labour anyway.

      So what is Labours incentive to lean to the left?

      However, if labour lean to the right, they might loose some…

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  3. Michael Shand

    Software Tester

    Very interesting how we treat others isn't it, from nation states like Timor-leste to asylum seekers

    We are bad guys, We are mean to people who need help

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  4. Natasha turnbull

    Student

    The sovereign country's law should override the international law in the situation when the two are conflicting. Otherwise any country could push their undesirable citizens to another country in the guise of obligating international law

    The current Australian migration law states that arriving Australia by boat via people smugglers is illegal. This law should be upheld. Australia has no legal duty to these people on Nauru and PNG whose true identifications, backgrounds and motives are unknown.

    I hope the new magistrate for Nauru takes tough stand on these asylum seekers who have committed violent riot and $60 million damage - deport them! not to do so, you are encouraging the criminal behavior.

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    1. John Crest

      logged in via email @live.com.au

      In reply to Natasha turnbull

      Good luck around here Natasha. You can expect to be ridiculed and have your comments deleted for having the temerity to upset the typical voice around here with a common sense argument.

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    2. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Natasha turnbull

      "UNHCR considers that, in the context of transfer arrangements, Australia maintains a shared responsibility with PNG to ensure appropriate legal standards."

      We're talking about responsibility and human rights, and I know that yours is a party political statement.

      Accounting is not accountability and I do not wish to be shamed by this current government.

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    3. Darren G

      logged in via email @yahoo.com

      In reply to Natasha turnbull

      Slightly more complicated than that Natasha. If youre not a citizen then arriving without a valid visa makes you an unlawful non-citizen. As such you can be removed from the country. However, an unlawful non-citizen in Australia (or "the migration zone" - take your pick of definitions) has the right to claim refugee status. At that point you are governed by a whole new set of rules - because an unlawful non-citizen has the right to make that refugee-status claim and be processed as a refugee claimant…

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    4. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to John Crest

      This is neither accurate or fair John. If anyone reacts strongly to Natasha's reiteration of govt. policy they will be deleted, not the other way round. On this page, offensive comments are not judged according to subject position.

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    5. Darren G

      logged in via email @yahoo.com

      In reply to Darren G

      Incidentally, in relation to my third paragraph, while we are speaking of strict application of the law, if - as has been reported - Australian warships or naval personnel strayed into Indonesian waters while forcibly detaining people then its likely that there have been some fairly serious crimes committed there. One wonders whether the Indonesians will let that rest since they have the right to pursue it and - given we are talking about crimes - the Australian government would be at least morally…

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    6. John Crest

      logged in via email @live.com.au

      In reply to Jena Zelezny

      I disagree Jena.

      I've had comments of mine deleted with no explanation from the Conversation.

      To my mind, they were completely inoffensive (excepting of course, that they possibly offended the liberal views of our fellow commenters (and / or site moderators)).

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    7. Felix MacNeill

      Environmental Manager

      In reply to John Crest

      John, they don't provide explanation to anyone.

      I expect that everyone believes that their comments were reasonable. Falling back on rather paranoid explanations is not particularly convincing.

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    8. Natasha turnbull

      Student

      In reply to Darren G

      You don't understand my first post - our sovereign law overrides international law.

      Wether or not these illegal arrivals are claiming asylum is beyond the point ( they can claim anything all they like). As long as they are coming in a illegal way and trespass our sovereign law, they should be dealt with according to our current law - sent to PNG and Nauru, full stop.

      Did this thought ever occur to you why these people did not claim asylum in the first, second or third country during their global country shopping trip

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    9. John Crest

      logged in via email @live.com.au

      In reply to Felix MacNeill

      Not true Felix.

      Some of my deletions have been explained to me (via email) and I have in fact agreed that they "crossed the line".

      I'm talking about my deletions for which no explanation was forthcoming and for which I can see no good reason for said deletion.

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    10. Natasha turnbull

      Student

      In reply to Jena Zelezny

      It is absurd for you to claim that one's different opinion is a party political statement.

      You must understand that human right of freedom of speech is not just for the political left!

      I can reassure you that I would respect your right to go on street to beat the drum and to protest in whatever forms.

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    11. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Natasha turnbull

      The absurd part of your retort Natasha is the language with which you choose to vent.

      If you have the right to express an opinion then so do I and I exercised that right. Furthermore you demean me by associating me with street protest. What is more, my perspective is not associated with a political party and I have no idea what Labour or the Greens would say/are saying about this.

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    12. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Natasha turnbull

      I'm pleased that you at least acknowledge that there are people involved Natasha. "Country shopping"? You were lucky to be born in a country that allows freedom of speech, and yet you want to exclude those who would also like that right?

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    13. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to John Crest

      John, instead of implying that The Conversation is biased why do you not ask the editor/moderator for an explanation? You might find that your comment was offensive, or that it was part of a thread, or that it was sailing a little too close.

      But does it serve your purpose to keep publicly insisting on bias? Maybe you'd like Kevin Donnelly to set up a review?

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    14. Henry Verberne

      Once in the fossil fuel industry but now free to speak up

      In reply to John Crest

      So I take it you do not subscribe to the community standards of this site?

      Easily fixed John; take your views to a site where they do not have high standards, plenty of them out there!

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    15. Henry Verberne

      Once in the fossil fuel industry but now free to speak up

      In reply to John Crest

      I have had comments deleted too and sometimes I have deserved it; nothing to do with offending the liberal views of others or the moderators.

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    16. Darren G

      logged in via email @yahoo.com

      In reply to Natasha turnbull

      Natasha, it seems you didn't understand my reply. As I said a person arriving in Australia without a visa is an unlawful non-citizen. As soon as that person claims refugee status in Australia they become subject to the laws relating to refugee claims. That is section 36 of the Migration Act 1958 - just to be very clear about this.

      Also, to clarify, just because a country ratifies an international treaty that doesn't make it "law" in that country. Same applies to Australia. Legislation needs to…

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    17. John Crest

      logged in via email @live.com.au

      In reply to Jena Zelezny

      I have asked for an explanation (about specific deletions) but haven't received one.

      As for "keep[ing on] publicly insisting on bias", I am merely responding to your specific postings.

      Also, I have no idea who Kevin Donnelly is.

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    18. David Roth

      Postgrad History Student

      In reply to John Crest

      When comments are deleted, possible reasons are spelled out in detail. I can usually make an informed guess when my comments are deleted. That comments are deleted just because "they offend liberal views" is an unlikely hypothesis which would need more proof than mere assertion.

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    19. John Crest

      logged in via email @live.com.au

      In reply to David Roth

      "When comments are deleted, possible reasons are spelled out in detail". As explained above, multiple times (*yawn*), not true.

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    20. Andy Saunders

      Consultant

      In reply to Natasha turnbull

      Natasha, you are using incorrect terminology. The arrivals are NOT illegal, they are entirely legal under Australian law.

      The Migration Act uses an expression "unlawful non-citizen" as a defined term (defined only within the Act). The Act could have used "Wombats" or "UFOs" instead, it's just a label. They are not illegal.

      Please modify your language in future.

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    21. Andy Saunders

      Consultant

      In reply to Darren G

      Darren: small clarification

      "just because a country ratifies an international treaty that doesn't make it "law" in that country"

      In some countries (USA...) it does...

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    22. wilma western

      logged in via email @bigpond.com

      In reply to Natasha turnbull

      But the point is also that the decisions of the Nauru government re the two officers dismissed are not in accordance with Naruan law either, according to the reports.

      The article gave convincing reasons why Scott Morrison's statements do not accord with the convention re refugees which Australia signed , making it part of our law, I would have thought.

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    23. Felix MacNeill

      Environmental Manager

      In reply to John Crest

      John, I've had a few deleted too (see - it's not just you freedom loving free thinking libertarians who get censored) and I've never had anything more specific that 'breached community standards' in the email.

      It is worth noting that 'off topic' is one of the guidelines tha tcan lead to deletion.

      On one occasion, an editor actually made a post herself explaining that, if I deleted some elements, she'd accept my reposting. I declined to do so.

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    24. wilma western

      logged in via email @bigpond.com

      In reply to Darren G

      Error of navigation??? Letter writers to The Age have had lots of fun with that one - offering their GPS's etc. There is to be an official Aust inquiry on this , to report in Feb unless they decide they need more time.

      You are right about the responsibilities of the navy chiefs - they told Tony some time ago that "tow backs" could endanger personnel , etc. They seem to have been silenced now that Tony is PM.

      Actually that's not right - Admiral Grigs took to Twitter yesterday saying there is absolutely no evidence that navy personnel were responsible for the burns suffered by recently "returned" boat people and so doing what other members of the defence force have been reprimanded for.

      Wonder where the Minister for Defence is right now - who is he anyway? Perhaps he thinks Morrison is doing such a good job he can stay in hiding ... NOT?

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    25. Andy Cameron

      Care giver

      In reply to Andy Saunders

      Andy that is not true. The US has ratified many international treaties, which have absolutely no legal authority under US domestic law. The US has ratified the ICCPR, but it can give rise to no private action.

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    26. Darren G

      logged in via email @yahoo.com

      In reply to wilma western

      The minister for defence is David Johnston. A senator from western Australia - basically he holds a senate seat that a dead penguin could get elected to provided it was a member of the liberal party.

      I remember once dealing with the now minister in my professional capacity years ago. Nice enough fellow but a complete political non-entity. I didn't get the impression there would be anything original, inspired, or even interesting, coming from his career. I suspect he will just let all the other ministers use his toys in defence, let the Chiefs of staff run all over him, and pop up every now and again to make a comment on some obscure and relatively veteran's benefits issue just to let everyone know that he's getting away from the gold course and into the office once in a while. In a nutshell he is perfect for how the liberals like to run defence.

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    27. David Roth

      Postgrad History Student

      In reply to John Crest

      Your comment on 'xxxxxxxxxxxxxxxxxxxxx' has been removed.

      There are several reasons why this may have occurred:

      1) Your comment may have breached our community standards. For example it may have been a personal attack, or you might not have used your real name.

      2) Your comment may have been entirely blameless but part of a thread that was removed because another comment had to be removed.

      3) It might have been removed for another editorial reason, for example to avoid repetition or keep the conversation on topic.

      For practical reasons we reserve the right to remove any comment and all decisions must be final, but please don't take it personally.

      If you're playing by the rules it's unlikely to happen again, so feel free to continue to post new comments and engage in polite and respectful discussion.

      For your reference, the removed comment was:

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    28. John Crest

      logged in via email @live.com.au

      In reply to David Roth

      Replying to me with the deletion email template is meant to make what sort of point????

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    29. David Roth

      Postgrad History Student

      In reply to John Crest

      Yes, for those whose comments had never been deleted, to make them aware of the possible reasons for deletion, none of which included bias against comments attacking 'liberal' viewpoints. You said these possible reasons were not detailed, they looked fairly detailed to me.

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    30. John Crest

      logged in via email @live.com.au

      In reply to David Roth

      My point (as explained above), is that there are times I've had comments deleted for which no explanation was given.

      For example (from yesterday afternoon in fact)...

      https://theconversation.com/the-grammys-musics-grim-battle-for-industrial-supremacy-21919

      You will see that the first comment has been deleted.

      That comment was made by me.

      I received no notification of its deletion or why it was deleted.

      In this particular instance, however, the comment DID breach the T&Cs so I expected it to be deleted and have no concerns that it was.

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    31. David Roth

      Postgrad History Student

      In reply to John Crest

      Well, if you accept that your comment did breach community standards, an explanation is superfluous.
      That you received no notification in this case seems to be a software issue which you should take up with the editors. I have found no difficulty in inferring the reason for removal of my comments from the provided list of possible reasons and I am puzzled that you can't make a reasonable guess. But all this is a distraction from your original and main claim that your comments and those of others were removed because they criticised 'liberal' viewpoints. I put 'liberal' in quotes because it's pretty much an 'eye of the beholder' thing.

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    32. John Crest

      logged in via email @live.com.au

      In reply to David Roth

      I made no claim that other commenters were removed because they offended liberal views. Only my own.

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    33. Cory Zanoni

      Community Manager at The Conversation

      In reply to John Crest

      Really? I emailed you about that one after seeing these comments. Might be worth updating the email address tied to your account – all notifications are sent to that.

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    34. John Crest

      logged in via email @live.com.au

      In reply to Cory Zanoni

      I get all other Conversation notifications Cory...

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    35. Cory Zanoni

      Community Manager at The Conversation

      In reply to John Crest

      It's a mystery. Could you fire through an email to cory.zanoni@theconversation.edu.au and I'll chase it up with the techs? Knowing when I've deleted your comments is of the utmost importance.

      Meanwhile, back on topic.

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    36. David Roth

      Postgrad History Student

      In reply to John Crest

      Your words : "I've had comments of mine deleted with no explanation from the Conversation.

      To my mind, they were completely inoffensive (excepting of course, that they possibly offended the liberal views of our fellow commenters (and / or site moderators))."

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    37. David Roth

      Postgrad History Student

      In reply to David Roth

      Sorry, didn't complete that. "Good luck around here Natasha. You can expect to be ridiculed and have your comments deleted for having the temerity to upset the typical voice around here with a common sense argument."

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    38. Andy Cameron

      Care giver

      In reply to David Roth

      David, ROFL, "liberal" views!!?? Yeah right! Liberalism is poison to most here.

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  5. Andy Cameron

    Care giver

    Interesting how this article is completely silent on the fact that both Peter Law and Geoffrey Eames are foreign nationals - they are both AUSTRALIANS. Both are there as foreign guest, not by right. And both can be booted out, just like any other nation on earth. Why isn't this article championing Nauru's actions as an assertion of self-determination by booting out meddling neocolonial Australians?

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    1. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Andy Cameron

      The constitution of Nauru supports the concept of separation of powers though Andy. The Executive body has no right to determine the rulings of the Judiciary. What is more if a Govt. has issued a visa it has a responsibility to uphold the terms of that visa's provision and not to revoke it at whim.

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    2. Felix MacNeill

      Environmental Manager

      In reply to Andy Cameron

      Do you want to have a think about this comment Andy?

      These 'meddling neo-colonial Australians' are in fact well qualified lawyers who were engaged to fill their roles by the government of Naurua. Nobody imposed them on Nauru.

      Interfering in your own judiciary in contradiction to your own constitution is about the least impressive example of asserting self-determination that I can think of.

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    3. Andy Cameron

      Care giver

      In reply to Felix MacNeill

      Felix, the fact they are "well qualified lawyers" only increases how much meddling these neo-colonial Australians can achieve. A lot more than a couple of tradies!

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    4. Andy Cameron

      Care giver

      In reply to Felix MacNeill

      The main point I was making was this article's silence on the real nationality of the two people deported from Nauru. This silence deliberately twists the fuller complexity of the issue.

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    5. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Andy Cameron

      Nauru does recognise/subscribe to the idea of separation of powers. Felix made the same point in a post after mine but for some reason you have not demeaned him Andy. Why is this?

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    6. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      Were Law and Eames 'meddling' or asserting the rule of Nauru's own laws? The exact details of this dispute have not been reported. They were certainly there by right, by invitation and by virtue of the fact that they had employment contracts signed by the Government of Nauru. Whether Nauru or Law and Eames violated the terms of their contracts and visas and were terminated in a proper way is a matter of opinion. If the senior judiciary can be removed overnight to satisfy the political passions of the day, where is the rule of law? I can think of a few historical precedents, but not in democratic countries.

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    7. Andy Cameron

      Care giver

      In reply to David Roth

      They were foreign nationals there by privilege, not right. AND WTF "sovereign nation" uses colonial foreign citizens as its judiciary!?

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    8. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Andy Cameron

      They had visas Andy, and they were employed to do a job in the judiciary. As has been mentioned the terms of employment and the terms of those visas are not subject to dismissal or cancellation because of whim and/or because the Executive did not like the decisions made.

      Law and Eames were subject to an illegal disposal. Illegal in terms of the country's own laws. Everyone knows that Law and Eames are Australian Andy and I expect that by the laws of Nauru they also still had rights in a situation of wrongful termination of employment. This is the case in Japan and The Republic of Korea for employees with an official visa and a contract so I am assuming that it is so for Nauru. Please tell me if I am wrong but those laws entitle the aggrieved person to remain in the country to pursue legal means of recompense.

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    9. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      If I have a contract with a nation, I have legal rights under that contract, which may include right of residence. Many small nations contract foreign nationals e.g. under the Pacific Judicial Development Program http://www.fedcourt.gov.au/pjdp
      No need for bad language. You could have easily Googled this yourself.

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    10. Andy Cameron

      Care giver

      In reply to David Roth

      David, no need for for Google, when one has a law degree. ;) You know, just like the ability to debate the History curriculum when one also has a History degree. ;)

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    11. Andy Cameron

      Care giver

      In reply to David Roth

      The point here is that the author of this article left all this vital information out of the article. We had this exact debate in class, with most of us quite stunned that these nations could be designated "sovereign", admitted to the UNGA, and accepted as signatories to instruments like the Refugee Convention, when they could not even tie their own shoelaces, completely dependent on foreign aid; whingeing one minute about "neocolonialism", while completely dependent on foreigners even for their judiciary! And yet, they get an equal vote in the UNGA! If the UNHCR is going to insist OTHER nations do all Nauru's (and other similar 'nations') fetching and carrying, they should never accepted Nauru into the club in the first place.

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    12. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      You had better make your mind up, Andy. One moment you're defending the rights of Nauru as a sovereign nation against 'foreign meddling', complaining that the article is not 'championing Nauru's actions as an assertion of self-determination'. In the next breath, you are quite 'stunned' that it could be designated 'sovereign' at all.

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    13. Andy Cameron

      Care giver

      In reply to David Roth

      David, I am just being pragmatic. My personal view is the absurdity of admitting this postage stamp size totally dependent nation into the UNGA, defining it as sovereign, accepting it as a signatory to the international instruments, such as the Refugee Convention. But that's not my decision to make. It has been made by the UNGA itself, and thus we get this farcical situation, which should be exposed, and the relevant authorities and powers pilloried. Rather than getting on some soapbox, giving homilies about state sovereignty, the rule of law, and separation of powers, we need to call it for what it is.

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    14. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      You mean like your excursion into demographic analysis and your use of compound interest to calculate the death rate? Your law degree didn't give you any awareness of the Pacific Judicial Development Program. Strictly speaking, I don't have an undergraduate History degree. I was given status in respect of completed History units plus units from previous degrees.

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    15. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      You were on the soapbox, Andy, 'championing Nauru's actions as an assertion of self-determination'. Now you have changed your mind and say that its sovereignity is a sham, were the actions of Law and Eames 'meddling' or not?

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    16. Andy Cameron

      Care giver

      In reply to David Roth

      David, no need to "make up my mind", as one can walk and chew gum at the same time. What *I* think "should" be the case, is on fact NOT the case.

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    17. Andy Cameron

      Care giver

      In reply to David Roth

      David, compound "interest" is not really relevant to demography or epidemiology.

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    18. Andy Saunders

      Consultant

      In reply to Andy Cameron

      Nauru has a total population of less than 10,000. I don't think they have a law school. With only one magistrate needed, probably the opportunities for apprenticeship are limited.

      Presumably well-qualified candidates for magistrates are a little hard to come by locally (not that a law degree is a necessary qualification).

      Hence the use of foreign nationals as magistrates and even Chief Judges.

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    19. Andy Cameron

      Care giver

      In reply to David Roth

      Of course Australia has been neocolonial meddling in Nauru for years, with similar goings-on in Fiji,, PNG, Solomon Islands, and on.

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    20. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Andy Cameron

      There was no reason to make "the main point" Andy because everyone knows that LAw and Eames are Australian. The silence that you speak of is non-existent.

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    21. Felix MacNeill

      Environmental Manager

      In reply to Andy Cameron

      Andy, did you bother to read what I said? They were appointed by the government of Nauru, not imposed on them.

      Who would you prefer the gpovernment of Nauru to appoint to their principal legal positions under their constitutions - a couple of plumbers, on the basis that they would do less harm?

      By the way, do you actually have anything resembling evidence to support your libellous claim that the two individuals are neo-colonial meddlers as opposed to competent lawyers carrying out the role assigned to them impartially and professionally, or are you happy just to rely on personal prejudice when making such judgements?

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    22. Felix MacNeill

      Environmental Manager

      In reply to Andy Cameron

      Andy, there you go again: 'deliberately twists' - I presume that, in true form, you have nothing other than prejudice to support that accusation?

      Or, perhaps you would like to explain what difference the specific nationality of the two people would make? They are foreign residents. Are there foreign residents from a nice country versus a nasty one?

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    23. Felix MacNeill

      Environmental Manager

      In reply to Andy Cameron

      Maybe one that doesn't have any locally born lawyers? It was their choice Andy.

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    24. Felix MacNeill

      Environmental Manager

      In reply to Andy Cameron

      I see you've decided to resort to empty insults when your vacuous arguments have been calmly and rationally refuted.

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    25. Darren G

      logged in via email @yahoo.com

      In reply to Andy Cameron

      Andy, most of the pacific islands have Australians on their judiciary and so do a number of other small developing nations. Some of the larger law firms specialise in developing legal systems for such countries and these usually need foreigners with the proper legal qualification to staff them and keep them running while the locals learn how to do things.

      In addition, in smaller countries theres not a large pool of people from which to select judicial officers. As a result properly qualified…

      Read more
    26. Andy Cameron

      Care giver

      In reply to Darren G

      Darren, precisely I do know of this, and from a position even a bit closer than the ones you considered.

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    27. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      Actually, compound/exponential growth calculations *are* relevant to demography (e.g. population growth) and epidemiology (disease propagation). But you introduced the subject in the context of death rates, where it doesn't make sense. Your words : ("Er, 10% compounded over 70 years is way, way lower than 2% per annum.") How soon you forget them. But I guess you're not a science graduate.

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    28. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      You can't maintain two mutually inconsistent positions at the same time. Either Nauru's self-determination is worth defending, or it is not.

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    29. Andy Cameron

      Care giver

      In reply to David Roth

      Science (Mathematics) actually. *I* know full well how compounded growth operates in epidemiology and demography, but you have been going on about compound *interest*, for some reason. If you want to talk actuarial tables, insurance premiums, etc. then you'd be on point. But you haven't been, so you are not. Either way, you are off-topic.

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    30. Andy Cameron

      Care giver

      In reply to David Roth

      Oh, but one more correction David, demography and epidemiology are precisely about death rates. But no more of this please.

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    31. David Roth

      Postgrad History Student

      In reply to Andy Cameron

      'Interest'/'compound growth' is just semantics - mathematically the same. Demography and epidemiology include death rates, but are not 'precisely about' them. Your demography was just plain wrong, so I'm happy to stop talking about it when you stop personal attacks on my academic ability as a distraction from the main topic.

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  6. Andy Cameron

    Care giver

    Also, Australia is not part of Europe, and thus not subject to the European Court of Human Rights.

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    1. Felix MacNeill

      Environmental Manager

      In reply to Andy Cameron

      One is not 'subject to' a court - one's possible legal affairs come under the jurisdiction of a particular court. International law remains international law, regardless of where it is examined - the decision of a particular, competent court on a question of international law provides useful guidance on interpretation, which is all this article is suggesting.

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    2. Andy Cameron

      Care giver

      In reply to Felix MacNeill

      Felix, the application of any international law, on Australian soil, is subject to our municipal law. For example, the application of the Refugee Convention is determined by our municipal Migration Act, a piece of legislation over which the ECHR has no jurisdiction. So no, the ECHR's decisions on the actions of Greece and Belgium are not authorities for how Australia should conduct its diplomatic policy with a foreign sovereign nation, in this case, Nauru.

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    3. Felix MacNeill

      Environmental Manager

      In reply to Andy Cameron

      I think you'll find it's national rather than 'municipal' law Andy and as our 1958 Migration Act fully operationalises the Refuggee Convention, then the opinion of a competent court on the application of the rules in that Convention does provide a useful precedent.

      I never suggested it provided "authority" - indeed I made it very clear that it did not - you simply chose to insert that straw man. All I have ever said and all that the article says is something that any rational person could understand - that the interpretation of a competent court on a body of law like the Convention provides useful precedent and guidance.

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    4. Andy Cameron

      Care giver

      In reply to Felix MacNeill

      Look up "municipal law", "mandatory detention", and extra-judicial "administrative detention".

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    5. Jena Zelezny

      research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

      In reply to Andy Cameron

      Australia is open to the criticism of the UNHRC Andy and that body has also been critical in the past.

      We are forgetting that those seeking asylum are not only fixed on Australia. Asylum seekers are crossing the Mediterranean Sea and landing in Italy, Spain and Greece. Asylum seekers crossed the Atlantic after the war. Indeed, Australia's so called 'problems' with refugees and asylum seekers is part of a long history of the implications and repercussions of religious persecutions, war and or political strife.

      Australia (the nation and its citizens) has an obligation to humanity and for me, this includes supporting those who have been wrongfully dismissed in another country for politically 'dodgy' reasons.

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  7. Andy Cameron

    Care giver

    "Australia also has obligations as a party to the ICCPR urgently to persuade Nauru (which has signed but not ratified the covenant) to reverse these decisions. The right to a fair trial is guaranteed by Article 14 of the ICCPR."
    It is a bit rich to expect our Government to go about the globe demanding other nations comply with the ICCPR, given that the Australian Parliament has not even incorporated ICCPR into Australian municipal law

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  8. Henry Verberne

    Once in the fossil fuel industry but now free to speak up

    Notice not a word from Julie Bishop about Nauru's extraordinary expulsions, when she was quite happy to criticise China and Indonesia.

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    1. wilma western

      logged in via email @bigpond.com

      In reply to Henry Verberne

      Exactly, Henry. But perhaps she's stewing over her leader's latest blast directed at SBY. Tony in Davos still acting like a bull in a China shop - have to feel a little bit sorry for JB - only a little bit!

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  9. Andy Cameron

    Care giver

    "The International Court of Justice decided in 2012 that Belgium could intervene in Senegal’s failure to prosecute a case of alleged torture in Senegal. This was because all states that are parties to one of the human rights conventions have “a common interest in compliance with the obligations” under the Refugee Convention. The court found that this implies that:
    …the obligations in question are owed by any State party to all the other States parties to the Convention. It follows that all the States parties “have a legal interest” in the protection of the rights involved."
    Just. Wrong. The ICJ was explicitly discussing the Convention Against Torture. NOT the Refugee Convention.

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  10. Jena Zelezny

    research for second PhD in Humanities and Social Sciences (Performance Studies/Theatre & Drama/Dramatic Literature/Visual Arts) at La Trobe University

    Unfortunately the programme is almost over BUT I urge everyone to catch up with the interview of Renata Kaldor on ABC FM today conducted by David Marr.

    It is a discussion which re-focuses the discussion (below) and sets the 'problem' of asylum seekers in an historical context. It is not for the cynics but is instead for those who want facts, and information from those who are in a position to provide those facts.

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