Why has the Australian government been so quiet about what amounts to the collapse of the rule of law in Nauru? Julian Burnside wagers an explanation.

It can be said without exaggeration that the rule of law has collapsed in Nauru. The chief magistrate has been expelled from the country, in defiance of an injunction issued by the chief justice of Nauru. The Chief Justice (who lives in Melbourne) tried to return to Nauru, but the government cancelled his visa. Now Nauru has appointed a new chief magistrate, without consulting the chief justice as required. All of this has happened, it seems, because the former chief magistrate has made rulings which the government of Nauru did not welcome.

The Age newspaper published an insightful editorial on January 21 concerning the collapse of the rule of law in Nauru. The editorial included the following observations:

The Age deplores this wanton intrusion into the independence of Nauru's judiciary, and the government's patent disregard for the rule of law... The Judicial Conference of Australia says the Nauru government's actions are ''unjustifiable and very concerning''. The Law Council of Australia and the Bar Association also have expressed profound concern. We anticipate a strongly worded statement expressing similar concerns from the Prime Minister, Tony Abbott.

It is interesting - and very significant - that the Australian Government has been so quiet about events in Nauru. There are a number of possible explanations for this. To understand them, it is necessary to know a bit about Nauru and its relationship with Australia.

Nauru has a land area of 21 square kilometres, and a population of about 10,000 people. It became an independent nation in 1968, after years as a dependency of Australia. It was once rich, because of its huge phosphate deposits. But the phosphate is all gone, and the accumulated wealth of the country has been stolen or squandered. It does not have a local supply of food or water adequate for its own people.

Nauru is poor enough that when, in September 2001, John Howard asked it to warehouse refugees for Australia, it agreed. Detaining refugees is Nauru's main source of income.

It is worth remembering that Nauru was reopened as a detention centre in August 2012. Asylum seekers taken there were said to be subject to the "no advantage principle". That apparently meant that they would not be resettled any more quickly than if they had not got on a boat in Indonesia.

Asylum seekers taken to Nauru have been given clear warning by Australian officials that "You will ... need to wait and see how the 'no advantage' principle applies to your case". Australian officials have told them that they may have to stay in Nauru for as long as five years.

Detention of asylum seekers in Nauru is not the same as detention of asylum seekers in Australia. Nauru's Constitution contains a Bill of Rights which protects personal liberty and prohibits arbitrary detention. However, as in Australia, if a public servant fails to perform his or her official duty, the Court can compel them to perform their duty by a device called a Writ of Mandamus.

The processing of refugee claims in Nauru has been incredibly slow. It has no previous experience in assessing refugee claims, and had no officials with suitable training to be able to do it. After asylum seekers had been in Nauru for 12 months, just one refugee status determination had been made. If refugee processing continues at such a slow pace, it becomes increasingly likely that the Supreme Court would grant Mandamus to compel the Nauruan public service to decide whether or not detainees are entitled to refugee status.

If refugee claims are adversely decided, then the people affected will be entitled to challenge those decisions in the Supreme Court.

But both of these courses depend on there being a functioning Supreme Court, and the government of Nauru seems determined either to paralyse the Supreme Court or to render it a bit more "government friendly".

In June 2013, the Supreme Court of Nauru held that detention of asylum seekers was lawful, but left for later decision the question of whether "long and unreasonable delay by the respondent in processing their claims and in arranging their removal, for example because of compliance with Australia's 'no advantage' policy, will render their detention 'not authorised by law' because in those circumstance it is arbitrary and beyond the contemplation of the constitutional exception."

Individual detainees whose refugee claims are unreasonably delayed, or are decided favourably, could fairly expect to get a court order allowing them to live freely in the Nauruan community. But such an order would, again, depend on there being a functional Supreme Court able to operate independently of the government.

So, asylum seekers sent to Nauru by Australia might be released into the community either because their detention continued so long as to be arbitrary and thus un-constitutional, or because detention of a person assessed as a refugee is un-constitutional. In either case, it would depend on a ruling from the Supreme Court of Nauru.

Although Nauru is profiting by locking up asylum seekers to help Australian politicians make political capital, most Nauruans do not welcome the idea of refugees forming part of the Nauruan community. From my visits there, it is clear that, for most Nauruans, it's OK to have refugees locked up in Topside Camp, but not acceptable to have them living in the community. If the Supreme Court ordered that detainees be released, the result would be politically unsustainable in Nauru, and could cause the arrangements between Nauru and Australia to collapse.

But if the Nauruan limb of the Pacific Solution collapsed, that would be politically awkward for the Abbott Government.

So it seems that both governments - in Nauru and Australia - have an interest in seeing the rule of law fail in Nauru.

Australia is Nauru's paymaster. It will do pretty much anything we tell it to, because we are its main source of income. That is very convenient for Australia. Howard recognised this; Gillard and Rudd recognised it; Abbott recognises it.

If Tony Abbott told the president of Nauru to reinstate the chief magistrate and to respect the Supreme Court, it is a near certainty that Nauru would comply.

But it would not suit Tony Abbott to see the Supreme Court of Nauru allowed to give effect to the protections in the Nauruan Constitution, because that would jeopardise the "no advantage principle" and could bring the Pacific Solution to an end.

Despite the Age's optimism, I do not expect the Abbott government to do anything effective to reinstate the rule of law in Nauru. And if they do nothing, they should be asked to explain why.

Julian Burnside AO QC is an Australian Barrister and an advocate for human rights and fair treatment of refugees. View his full profile here.