Civil and human rights

NSWCCL supports changes to racial vilification laws

NSWCCL welcomes the long overdue decision of the NSW Government to strengthen the existing law covering the offence of serious racial vilification.

We support the proposed provisions of the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018. They are largely consistent with the views NSWCCL put forward in its submission to the Legislative Council Standing Committee on Law and Justice in 2013. The Bill modernises the grounds relevant to this offence so that it is proposed to provide protection against vilification of persons/groups on the grounds of ‘race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’. The new provisions appear likely to address the problems which have blocked any prosecutions ever being initiated under the current Act.  

Read more in our statement of support:

NSWCCL statement NSW Vilification Bill 2018

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On the use of sniffer dogs, and unacceptably broad police powers of exclusion at Sydney Olympic Park

NSW Council for Civil Liberties (CCL) has condemned the six-month bans handed out to patrons of the Above and Beyond music festival, on the basis of identification by drug sniffer dogs. NSW Police announced before the event that they would exclude patrons, regardless of whether any drugs were found after indications by the drug dogs.

CCL is deeply concerned by these bans. According to the NSW Ombudsman, when drug dogs indicate a person has drugs on them, those dogs are right about a quarter of the time. NSW Police have reportedly ripped up the tickets of people just because they were identified by drug dogs, even when no drugs were found. In effect, the police have declared a willingness to infringe on the rights of people who have done nothing wrong.

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NSW Parliament passes safe access to abortion clinics bill

At about 1:26am this morning (8th June 2018) the NSW Parliament passed the  Public Health Amendment (Safe Access to Reproductive Health Clinics) Bill 2018.  It had been a long day and night. While there was little doubt that the Bill had majority support, its cross-party supporters had to fend off 19 separate amendments which would have in various ways undermined the object of and the effectiveness of the Bill. 

In the end all amendments were defeated and the Parliament did the right thing by women and endorsed the Bill  by 62 votes to 18 - a comfortable majority of 44.

This is a very significant and overdue win for women in NSW.  They are now protected by law from the distressing harassment and invasion of privacy that so many have had to endure when entering a reproductive clinic for an abortion or other medical support about their reproductive health. Staff working in these clinics will also be spared from both direct  harassment and the stress of receiving distressed clients who have had to run the gamut of such harassment.  

NSWCCL joined many others in supporting this Bill since it was introduced into Parliament by ALP MLC Penny Sharpe a year ago. In doing this, we were conscious that the effect would be to constrain some rights of anti-abortion protesters around  reproductive clinics offering abortion services.  However given the objective was the protection of women accessing lawful services from serious harassment and intimidation in a limited zone, we consider its provisions to be reasonable and necessary.

The Bill was successful because of cross party support that was achieved in recent weeks. The Labor Party and the Greens supported it - the Government allowed a conscience vote and National Party MLC Trevor Khan gave the Bill the needed extra support by co-sponsoring it with Penny Sharpe. 

It is a very welcome outcome.

Hopefully it is a prelude to the eventual decriminalization of abortion in NSW. 

 

Lesley Lynch

 

NSWCCL public statement safe access bill 2018

Safe Access Zone Bill 2018

 

 

 

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Safe access to abortion clinics - in with a chance!

One year after it was introduced into the Parliament by Labor MLC Penny Sharpe, a private  members bill to provide much needed protection and privacy for women accessing abortion clinics in NSW will return to Parliament for debate today. 

This time the bill - Public Health Amendment(Safe Access to Reproductive Health Clinics) Bill - will be co-sponsored by the National's MLC Trevor Khan as well as Penny Sharpe - a significant step towards cross party support from within the Government.  Both the Labor and Greens parties  have committed to support the bill so there is a definite chance that it might actually be passed before Parliament rises at the end of May.  

The bill seeks to provide effective legal protection for women from harassment and intimidation as they access reproductive health clinics for advice or a pregnancy termination.  The level of this intimidation and harassment that women regularly encounter outside these facilities is totally unacceptable. It generates distress, embarrassment - and sometimes fear  - and breaches the privacy of women seeking to access a legal medical procedure. 

Current NSW laws relating to harassment and intimidation are inadequate in this context - as was the case in other states and territories which have put into place similar specific safe access laws for women's access abortion centres.  

NSWCCL's policy has for many years been to campaign for the decriminalization of abortion. Last year such a bill was introduced by Green's MLC Mehreen Faruqi  only to fail in the Legislative Council. Nonetheless we are confident that the NSW Parliament will eventually have to accept women’s right to make their own reproductive choices and respond to the strong community support for this right to be reflected in the law. 

In the interim we give our full support to this necessary, sensible and proportionate Bill.  

Its sponsors are optimistic but we in recent times saw the euthanasia bill unexpectedly defeated in the Legislative Council. All who support this bill need to actively advocate for it over the next two weeks to encourage sympathetic coalition MPs to consider supporting it.   

 

NSWCCL Public Statement on safe Access Bill 2018

Safe Access to Reproductive Health Clinics Bill 2017  

 

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CCL opposes exclusion of criminal offenders from compensation scheme

The NSW Council for Civil Liberties calls on the Federal Government to provide compensation to victims of institutional child sexual abuse, whether or not they have subsequently been convicted of serious crimes. 

The Senate Standing Committee on Community Affairs has recently published its report on the Commonwealth Redress Scheme for Institutional Child Sexual Abuse. The report notes that the Attorney General has indicated that a final position has not yet been determined on the proposed exclusion of criminal offendors, and that a discretionary approach to exclusions could be considered.

Although a discretionary approach is an improvement on the original exclusionary approach, we do not consider it to be the preferred option. 

Punishments for crimes are determined by the courts after carefully considering all the circumstances.  It is not appropriate for politicians to add to those penalties, especially when they do not consider the individual circumstances that may mitigate a victim’s guilt. 

The Council considers that the Government’s actions in excluding those who have been convicted of serious crimes from compensation serve no good purpose and fail to take into account the compelling evidence before the Senate inquiry that a history of childhood abuse is a significant causative factor for offending later in life. 

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Concern regarding disproportionate police response to peaceful bicycle helmet protest

The NSW Council for Civil Liberties is concerned by the heavy handed response of the NSW Police to a peaceful protest on Saturday 17th March 2018 by people on bikes calling for reform to mandatory helmet laws.

While coordinated action in other cities across Australia and New Zealand passed without incident, in Sydney the police dispatched seven police cars to intercept and stop a planned "helmet optional" bike ride along the Grand Drive cycle lane in Centennial Park, threatening participants with $330 fines.

This action by police was grossly disproportionate to any conceivable safety concerns, a waste of public resources, and fails to respect the fundamental right to peaceful protest in a democratic society. Any fines issued during the protest should be immediately withdrawn.

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Electoral funding bill - reform or suppression of civil society voices

NSWCCL recently joined with other CCLs to oppose the deeply disturbing Electoral Funding and Disclosure Reform Bill 2017.

This Bill will not deliver the reform to electoral funding that is urgently needed in Australia. It will however, deliver a devastating blow to civil society’s capacity to participate in political advocacy and to the broad freedom of political communication.  

In addition, it proposes a clumsy, heavy handed, costly and overly burdensome approach to regulation of the charity and political advocacy sectors. 

The stated objective

The Bill is part of the Government’s highly controversial package of proposed ‘national security and foreign intervention laws’ which the Prime Minister says are in response to ‘grave warnings’ about ‘unprecedented threats’ on this front.

The CCLs support the much needed reform of election funding at the national level. We accept that foreign funding of political parties and related entities (and politicians) should not be allowed to distort our democratic electoral process. We strongly agree that the integrity of our electoral system is fundamental to both our democracy and national sovereignty and to the restoration of public confidence in our political process.

Foreign donations and influence are, however, not the most significant factors undermining the integrity and fairness of the electoral process in Australia  and public confidence in the political system.  

Moreover, if foreign intervention damaging to Australia’s interests and democracy is the target, it is puzzling that the Bill excludes foreign or global private corporations which exercise considerable influence over political parties, government policy and even electoral outcomes.

The CCLs doubt that the Bill will achieve its claimed objective of protecting against foreign intervention in the electoral process.  

The hidden objectives

The CCLs main concern is that the ‘foreign intervention’ agenda is being used as cover to advance the Government’s long term attempt to deter major charities from public - and inextricably political - advocacy relating to their core constituency and to damage GetUp as an effective independent, progressive political advocacy body.  

The blatant attack on GetUp is achieved by amending the definition of an 'associated entity' so as to capture it - and other independent civil society organisations involved in political advocacy.    

This is done by conflating support for a  policy with support for a political party also supporting that policy.  

The Bill overrides the critical difference between an independent political advocacy organisation and a political party and its “associated entities”. The independent political entity takes advocacy positions on the basis of support for or opposition to policy matters - not on the basis of support for or opposition to political parties.

Based on recent history of GetUp’s progressive campaigning this proposal would almost certainly define GetUp  as an ‘associated entity’ of the ALP (presuming the ALP maintains progressive policies..) and the Greens.  As many point out- a rather bizarre outcome!

This would, as clearly intended, destroy GetUp’s  reputation as an ‘independent’ progressive  advocacy body.  It is its independence from the major parties which is the basis for much of its support.

The CCLs consider this an outrageous manipulation of the law. If enacted, this proposal will do immense damage to the vibrancy of legitimate political debate in Australia.  We note that if we met the expenditure threshold, this definition would capture all of the civil liberties organisations in Australia- notwithstanding our vehement non- partisan position re political parties. 

Charities

The most serious onslaught on large charities and environment/conservation bodies rests on the extraordinarily broad and contorted definitions of ‘political activity’, ‘political purpose’ and ‘political campaigner’ in the Bill.   The intersection of these expansive definitions will force most major charities to be registered as ‘political campaigners’.                

Having forced them into an inappropriate political category, the Bill will impose cumbersome, unclear and costly administrative, recording and reporting arrangements in relation to foreign donations -which in most instances are marginal to their overall donations. 

Charities defined as ‘third party entities’ will not be able to use foreign donations for ‘political’ work . This is not a marginal impact  because, as defined, that prohibits them from using these funds for much of their core charity work.

Charities defined as ‘political campaigners’ will be banned from accepting foreign donations over $250. For those charities involved in advocacy work of global significance (eg. World Wildlife or Results International) this will have a devastating effect.   Overall, no public good will be achieved by this.

Because it defines political activity and purpose so broadly, the Bill will create uncertainty and deep unease in the charity sector as to how its critical advocacy and education work will be defined. 

The CCLs reject the underpinning assumption of these definitional manoeuvres by the Government. The CCLs consider that charities are entitled to participate in political debate flowing from their core work. We reject the narrow view that the role of charities is simply to attend to the immediate needs of those they seek to help.

The outraged response of the CEO of St Vincent’s de Paul Society to this Bill is justified:

The ostensible reason for introducing this Bill is to deal with the threat of foreign powers interfering with our elections. There is no evidence that our major charities are a vehicle for foreign powers.”

“Rather, this Bill is aimed at muting the voice of charities and others who have been critical of the government. It is dangerous legislation that is not only a threat to charities, but to democracy itself.   (St Vincent de Paul website)

 

Next steps 

The Parliamentary Joint Standing Committee on Electoral Matters is reviewing the Bill and will report to Parliament by the end of March. The furore around the Bill has been huge - there are currently 148 submissions to the Committee and although I have not read them all, it is pretty certain that most will be opposed to the Bill's attack on charities and bodies such as GetUp.

The Government may have enough sense to reassess the outrageous and unwarranted proposals in the Bill.

The Leader of the Opposition has recently indicated that Labor will not support aspects of the Bill that stifle charities. We await detail but hope that this is opposition to more than one aspect of the constraints on charities and that it incorporates the attack on independent political advocacy bodies. The Greens have indicated strong opposition to the Bill.

The Government has indicated that the bills in its national security and foreign intervention package will be considered by Parliament in May. This Bill and the Espionage and Foreign Intervention Bill are the most controversial.

The CCLs will consider the recommendations of the Parliamentary Committees on these Bills when they become public and will continue to lobby the Opposition and members of Parliament to remove the many  proposals which will be toxic for civil society political discourse and to find a less clumsy and burdensome way of disclosing or preventing foreign donations influencing the Australian electoral process. 

On this front,  the CCLs will continue to argue that the most effective way to achieve much needed reform of electoral funding and protection of the integrity of the electoral process is to:

  • impose real-time, full disclosure of donations to political parties, associated entities, MPs and parliamentary candidates
  • a lowering of the current donation disclosure threshold from $13500 to $2000 or thereabouts
  • and urgently set up a widely based National Integrity Anti-Corruption Body.

 

Dr Lesley Lynch 

NSWCCL Vice President 

 

For more detailed information and our specific recommendations read the Joint CCLs' submission on the Bill. 

Electoral Funding and Disclosure Reform Bill 2017

 

 

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Religious Freedom Review

NSWCCL Submission: Religious Freedom Review

There are four areas in which rights might be better dealt with in Australian law: freedom of speech, (for and against religions), freedom to practise, freedom from discrimination and protection against hate speech and incitement to violence.

This submission is in the way of a statement of the NSWCCL’s general views on the issue and 
areas we think are in need of attention:

  • Human rights and Australia’s obligations: International law
  • Australian Law—a summary.
  • Four areas in which rights might be better dealt with in Australian law
  • The relation between freedom of religion and other rights.
  • The functions of a bill of rights.
  • Relevant sections of Australian bills of rights.
  • Balancing principles.
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Review of Guardianship Act 1987

New South Wales Law Reform Commission: Review of Guardianship Act 1987

 

We acknowledge that persons without decision-making abilities, or a limitation thereof, are
vulnerable members of society, and such persons should be supported to make decisions
concerning crucial aspects of their lives in order to be afforded an opportunity to live as
comfortably and freely as others. Hence, insofar as the draft proposals of the New South
Wales Law Reform Commission (‘NSWLRC’) on its review of the Guardianship Act 1987
(NSW) promote these individuals’ civil liberties in both the public and private domains, we
support the proposed changes to the current arrangements existing under the Guardianship
Act 1987 (NSW).


Overall, we strongly endorse the NSWLRC’s draft proposals because we believe that the new
framework, as contemplated by the Assisted Decision-Making Act, better protects and
promotes the civil liberties of persons affected than the schemes supported by the
Guardianship Act 1987 (NSW). As a result, this submission will be limited to only those
aspects of the NSWLRC’s draft proposals which could be improved to better protect civil
liberties of the persons affected.

 

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NSWCCL Submission: The Role and Function of the Legislation Review Committee

The Legislation Review Committee (LRC) was created as an alternative to the adoption of a
Bill of Rights for New South Wales. It has not functioned well, and is no substitute for such a
bill.


We have noted problems in relation to uneven performance, lack of time, “urgent” bills,
lack of impact, lack of clear standards, poor argument, lack of expert input and lack of
attention to delegated legislation. The problems are manifest on the LRC’s own website—
in its annual reports, its legislation review Digests and its Information Paper.


The roots of most of these problems lie in the lack of time provided for the LRC to do its job,
and in the entrenched culture within the NSW Parliament of ignoring its views.

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