Civil and human rights

Policy statement (2017) - marriage equality

The NSW Council for Civil Liberties, consistent with its long-standing support for GLBT rights, strongly supports marriage equality and urges the Australian Government and/or the National Parliament to amend the Marriage Act 1961 to achieve this equality. 

The current same sex marriage statistical survey is an inappropriate, seriously flawed and undemocratic exercise intent on delaying Parliament addressing the issue and generating divisive and harmful debate. Nonetheless, NSWCCL strongly urges the community to register a “Yes” vote so that Government has no excuse to further delay legislative action on this matter.

Regardless of the outcome of the flawed survey, NSWCCL urges the Australian Government and/or Parliament to address the issue in this parliamentary term and introduce and pass a marriage equality amendment consistent with clear majority support within the Australian community.

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Policy statement (2017) - defense of the union movement

NSWCCL affirms the role of unions as an essential part of the Australian democracy in the defense of workers’ rights and affirms their right to support other organizations whose activities accord with their own.

 

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National human rights bill resurfaces in Australian Parliament!

Australians might be surprised to know there is a new Bill proposing an Australian Bill of Rights before the Australian Parliament.

There has not been much stomach for active campaigning in support of a national Bill of Rights in Australia since the bitter and crushing disappointment of the Rudd Government’s failure in 2010 to act on the recommendation of the National Human Rights Consultation Committee (the Brennan Report) for a federal human rights act.  This surprising and weak betrayal of community expectations, following a year of extensive consultation and clear public support for a human rights act - and the subsequent loss of the 2013 election to the Abbott Government – put a long term dampener on the enthusiasm of all but the most determined of campaigners. 

Australia remains alone among western democratic states in not having a human rights act or charter.

In recent years the Australian Parliament has enacted numerous new laws - and the Australian Government has enacted numerous new policies and programs - which unwarrantedly infringe individual liberties and rights and are in clear breach of our international human rights obligations.

Without the protections afforded by a Bill of Rights, strong and persistent opposition to these laws from many sections of the community has been powerless to stop their passage. Professor Gillian Triggs, the recently retired President of the Australian Human Rights Commission, repeatedly warned of the dangerous consequences for the rights and liberties of Australians of this situation – and was outrageously vilified by the Government and sections of the media for so doing.

So it is with tentative optimism that NSWCCL applauds the introduction of the Australian Bill of Rights Bill 2017 into the Federal Parliament by the independent MP Andrew Wilkie -  with the support of independent MP  Cathy McGowan.   

It is a wide ranging Bill which Wilkie says is closely modelled on an earlier private member’s Bill introduced in 2001 by Dr Theophanous which did not get past a first reading. (2R speech 14/8/17)

 

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Australian Citizenship Changes

Hundreds of submissions were made to the Senate Legal and Constitutional Affairs Legislation Committee on the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017.

You can read our submission here.

CCL views the Bill as dangerous, undemocratic and unfair. In brief we argued that the Bill:

  • creates a class of permanent residents who are denied recognition as citizens
  • requires new citizens to accept arbitrarily defined "Australian values"
  • confers unwarranted extraordinary powers on the Minister for Immigration
  • requires that applicants for citizenship have a knowledge of English which is set at an unfairly high level.

The Senate committee is due to report on 4 September 2017.

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Human Rights for NSW

We have been working with Amnesty International on a campaign to generate support for a NSW Bill of Rights. Victoria has one. The ACT has one. Queensland is getting one. It is time we had a human rights act in New South Wales. There have been two previous attempts to introduce a human rights act in New South Wales. The last attempt was over 10 years ago.

It is time to try again. Go to humanrightsfornsw to find out more.

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Parliament debates abortion law reform

The push for abortion law reform in NSW takes another step tomorrow (Thursday 11/05/17).  The Legislative Council will debate and vote on the Abortion Law Reform Bill introduced by Greens MLC Mehreen Faruqi. ALP members will have a conscience vote- and there is just a chance that it might get passed in the Council.

This would be a significant step in NSW –even though it is unlikely that it will get majority support in the current lower house.

NSWCCL has publicly supported the Bill. Yesterday we wrote to all members of the NSW Parliament urging them to give this Bill proper and positive consideration and to support its passage through Parliament so that matters relating to abortion in NSW are treated primarily as a health rather than a criminal matter. 

If that should fail, we have urged progressive members of Parliament to come together in a cross-party alliance and  build the necessary support for decriminalisation of abortion asap. 

As an interim fall-back action, we urge MPs to immediately pass the Safe Access to Reproductive Health Clinics Bill introduced by the ALP MLC Penny Sharpe.

Demonstration in support 

GetUp is holding a public demonstration outside Parliament tomorrow morning.  NSWCCL members will join that demonstration. Supporters of abortion reform are invited to join us. Macquarie Street - outside Parliament House - 9am Thursday 11th May. 

Also: text, email or ring your local member and members of the Legislative Council. Sign the GetUp  petition.

 

NSW Public Statement of Support 

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Government overreach on s18(C)

On Wednesday last week (22/3/170) the AG George Brandis introduced the Human Rights Legislation Amendment Bill 2017 into the Senate with the intention of its being considered very quickly. It immediately generated a wave of community opposition – especially from ethnic/multicultural community groups.  

On Thursday, the Bill was referred to the Legislative and Constitutional Affairs Committee for a ridiculously rushed ‘review’ with the Committee having to report by the following Tuesday (28/3/17).

This was a provocative time frame, effectively barring the community from any meaningful input into assessing the implications of the proposed changes on the ambit and operation of the Act. 

NSWCCL strongly opposes the proposed amendments in this Bill which will seriously and unnecessarily weaken protections against race hate speech  currently provided by s18(C ) of the Act.

Weakening s18(C )

While the Bill does not accede to the demands of the extreme opponents of the Act to repeal s18(C ), it does  include amendments that will significantly reduce the protections provided by the section:

  • the removal of the words   ‘offend, insult and humiliate’ and their replacement with  ‘harass   and
  • the replacement of the current objective test of the effects of alleged race hate speech (the standards of a ‘reasonable member of the relevant group’) with the standards of a ‘member of the Australian community’.

The PM and the AG assert these amendments  ‘strengthen’ the Act. This is an ambiguous description. They certainly do not strengthen the protection against race hate speech currently provided by the Act.  They will narrow and weaken these protections and create uncertainty as to what speech will be now be unlawful or permitted. There will be a lengthy period before a clear and settled judicial interpretation is established.

The existing standard of a ‘reasonable member of the relevant group’ as the basis for the objective test of the alleged offence is an appropriate standard for an offence that is experienced by particular groups and is particularly important in avoiding bias when the complainant is from a particularly disadvantaged or unpopular group.  NSWCCL opposes the amendment to broaden this to a member of 'the Australian community'. 

 In the current highly charged political context relating to asylum seekers, refugees, and multiculturalism and race relations these are dangerous amendments.    

The free speech justification 

The Government says it wants to protect free speech – but has not been able to provide an example of the kind of ‘free speech’ that will be protected by these changes that is not already protected either by the exceptions specified in s18(D ) or  by the well-established case law interpretation of s18(C ) requiring  the alleged act to have ‘profound and serious effects not to be likened to mere slights’.  

The most depressing aspect of the torrid campaign against s18(C ) and the AHRC (and its President)  by a small section of the community and the media  has been the way in which the facts of these cases – and the earlier Bolt case – have been seriously distorted to  create the false impression that s18(C ) and the AHRC together impose a draconian prohibition on free speech.

Notwithstanding all the outrage surrounding them, the QUT case was dismissed and the Bill Leak cartoon  – if the complaint had not been withdrawn- was almost certainly unlikely to be upheld as unlawful under the current Act.

NSWCCL agrees with those who warn that the removal of these offences from s18(C) at this point in time will send a clear message that it is now acceptable  ‘to offend, insult and humiliate’ people on the grounds of their race, colour, nationality or ethnicity.  Such an outcome will generate much hurt and tension amongst persons subject to this kind of speech and may well provide unintended impetus for the growth of racism and prejudice in Australia - especially against our Muslim community.  

NSW CCL position

In our submission to the Joint Parliamentary HR Committee we recommended removing ‘offend and insult’ and replacing it with ‘vilify’- not because the current words inappropriately restricted free speech in the operation of the Act, but because it is generally preferable that the Act clearly communicate the judicial interpretation of the offence.  

‘Vilification’ includes offending and insulting, but suggests they need to be  of a high level and serious, and not trivial, nature – and would thus bring the language of the Act into line with the operational judicial interpretation. It would not weaken the Act’s protection against racist speech but would help clarify current confusion as to what is, and isn’t, unlawful.

We were cautious in so recommending because of the possible unintended consequences of repealing long-standing categories of race hate speech in a politically toxic environment – and had previously argued that S18(C ) should be left unchanged.

The HR Committee could not make a specific recommendation on s18(C).  This should have signalled to the Government that  the wisest course would be to leave it alone. However by proposing to remove  ‘offend, insult and humiliate’ and replace them with ‘harrass’ the Government has chosen a more provocative, unacceptable  path. 

Given this and the ongoing toxicity and misinformation of the public debate NSWCCL reaffirms its earlier position- leave s18(C ) alone. 

Procedural issues 

The Bill also proposes numbers of amendments to the Australian Human Rights Commission Act 1986 dealing with the Commission’s procedures, its oversight and the role of the President.

NSWCCL considers the broad processes of the AHRC to have been, for over 20 years, highly effective in providing low cost access to a complaints conciliation process which has successfully resolved the large majority of valid complaints relating to race discrimination.

Nonetheless many of these amendments appear to be a sensible tightening up of procedures and  have broad support- including from the AHRC.

NSWCCL has not had time to carefully consider the implications of all these procedural amendments,   but we do reiterate our general concern that some of them may undermine the current accessibility of the AHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld – become a barrier.

It is clearly important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint. 

The President of the AHRC has expressed particular concern in relation to a number of the amendments and understands the Government may address some of her concerns in the final version of the Bill. When giving evidence on the Bill on Friday the President expressed ongoing concern about numbers of procedural amendments that the Government did not appear willing to change.  As it is possible the procedural  amendments may proceed even if the amendments to s18(C ) are rejected by the Senate – it is to be hoped the Government can be persuaded to address the AHRC’s advice on the likely consequences of these amendments. 

The Senates role

The Bill is scheduled to return to the Senate today. A wise Government would be withdrawing the s18 (C ) amendments.  If not NSWCCL is hopeful that the Senate fulfils its legislative review functions and rejects these amendments in toto. 

 

Dr Lesley Lynch 

NSWCCL VP 

 

Human Rights Legislation Amendment Bill 2017

Human Rights Legislation Amendment Bill Xpl mem

NSWCCL submission 

Letter from  President AHRC to Leg Con Committee 

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s18C survives Parliamentary review

The right to protection against race hate speech 

The Freedom of Speech in Australia Report (28th January 2017) will bring no joy to those urging wholesale repeal  or major  weakening  of Part IIA of the Racial Discrimination Act  which prohibits racially motivated hate speech. 

At the end of another (unnecessary and rushed) review process, which attracted 11460 responses, the Parliamentary Human Rights Committee was unable to make a recommendation to the Government on this core provision.  Instead it restricted itself to listing 6 options that had the support of at least one Committee member. (R3).  Neither abolition nor major weakening of the provision appears in this list of options. Not one Committee member supported an extreme option.

The Report focusses on positive options that do not have as their intent the weakening of the provision’s vitally important protection against race hate speech:  whether or not it is best to leave the provision as it is on the grounds that case law interpretation of what it means is well established and the legislation is working well – or to tweak the provision by various proposed amendments to make explicit in the legislation these judicial interpretations on the basis that it is a good principle that the meaning of laws be clear and accessible.

Nothing new here – these issues have been canvassed many times including in the last review in 2014.    

But it is a great relief that the extreme views of those who demand repeal or major watering down of the provision have not been given any support in the Committee’s recommendations.

NSWCCL also welcomes the separate strong statements in the Report from the ALP and the Greens members opposing any change to this core provision.

The AHRC administrative processes

In response to the controversy generated by three recent cases and repeated attacks by the Government and others on the AHRC and its President, the Committee was also tasked with the review of the Commission’s handling of complaints and its general procedures - with particular reference to the alleged soliciting of complaints. Most of the Committee's recommendations (19 out of 22) relate to this broad area.

Given the ferocity and persistence of attacks by senior Government members and some sections of the media on the AHRC and its President,  NSWCCL  was concerned that the review could be used to seriously undermine the President and the organisation.  This has not been the outcome .

The evidence from many respected and qualified sources discussed in the Report essentially disposes of the public allegations of gross incompetence, unfairness, soliciting etc by the Commission and establishes that much of the commentary on the three recent cases was  seriously ill-informed.

Nonetheless,  the Committee has made numbers of recommendations relating to the AHRC procedures, its oversight and the role of the President.  Many  of these are a sensible tightening up of procedures  and are either supported by the AHRC or not likely to be opposed by  it. (For example the President has previously requested an amendment that will allow the Commission to terminate complaints not likely to succeed quickly. R 12).

Some recommendations seem redundant and some unnecessary but are not likely to be harmful- beyond the fact that they will consume resources.  It may be that the Committee is proposing these additional checks and safeguards to provide public confidence that the Commission will be operating fairly and effectively.

If they protect the AHRC and its President from the kinds of unwarranted  political attacks we have seen over the last two years  - they will have served a good purpose. 

NSWCCL is however concerned about some of the recommendations because of their potential to undermine the current accessibility of the ALHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld,  become too big a barrier.  

It is important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint. 

A detailed analysis of the 22 recommendations will be posted shortly. 

Dr Lesley Lynch 

V-P NSWCCL 

 

Joint HR Committee Report Freedom of Speech 2017 

NSWCCL submission to Freedom of Speech Inquiry 2016

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Defending s18C of RDA -AGAIN !

Both s18c of the Race Discrimination Act and the Australian Human Rights Commission are again under serious attack from the Federal Government. 

George Brandis’ attempt to weaken s18c in 2014 was soundly repudiated by the Australian people and the then PM (Abbott) wisely retreated and abandoned the amendment.  NSWCCL strongly opposed the Brandis Bill and thought the Government unlikely to try again given the depth of community anger aroused by the proposal..

We were misguided. Emboldened by the recent rise of the far right here and overseas – and within the Liberal Party - the Government is now targeting not just the legal protections against racist abuse provided under s18C but also the processes of the AHRC which have served Australia well for 20 plus years.

This new push poses a serious threat to the protections currently provided by the RDA and to the AHRC. We have therefore again joined many others in arguing the case against weakening s18C and in supporting the overwhelmingly positive record of the AHRC in resolving the vast majority of complaints effectively through conciliation while dismissing those that are trivial or vexatious.  We are not aware of any cases under the RDA which have unreasonably constrained freedom of speech in Australia.  

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Policy statement (2016) - marriage equality

NSWCCL supports amending the law on marriage so that no discrimination is made between prospective spouses on the basis of their sex; in particular, so that same sex couples can be married, and that those who have same sex marriages they have entered into overseas are recognised as married in Australia.

The arguments supporting this policy position are set out in the following submissions listed below:

2013
NSW Legislative Council’s Standing Committee on Social Issues Inquiry into Same Sex Marriage Law in NSW
2012
Senate Legal and Constitutional Committee concerning the Marriage Equality Amendment Bill 2010
2009
Senate Legal and Constitutional Committee concerning the Marriage Equality Amendment Bill 2009

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