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THE VIEWS EXPRESSED ARE NOT NECESSARILY
THOSE OF THE NEW SOUTH WALES COUNCIL FOR CIVIL LIBERTIES INC.
CIVIL LIBERTY
JOURNAL OCTOBER 2000
(C) 2001 Copyright New South Wales Council for Civil Liberties Inc.
CONTENTS
1.CCL
ELECTS NEW PRESIDENT
The
annual general meeting of CCL was held on October 25 in the Lady Mayoress’ Room
of the Sydney Town Hall. The minutes of the 1999 annual general meeting were
approved and reports of the executive were presented and approved. They are
published in this issue. Office bearers and committee members for 2000-2001
were nominated and elected. Their names are listed in this issue of the journal.
The new President is Cameron Murphy. The Vice-Presidents are Pauline Wright
and David Bernie. The Secretary is Joan Locke, with Carmel Williams as Assistant
Secretary. Ken Buckley will become Treasurer, taking over from Joan Locke. The
meeting approved a motion endorsing the Committee’s July 26 decision concerning
the Human Rights Report prepared by CCL with funding from the Casino Benefit
Fund. The decision stated that the report be marked up for Internet access,
as provided for in the original application to the Fund, but that CCL’s financial
situation precludes consideration of any other form of publication of the Report,
for example in book form. The meeting carried a resolution stating “That CCL
opposes the use of genetic information by insurance companies to deny a policy
of insurance, or provide lesser benefits or higher premiums, and believes that
the Federal Government should enact legislation to prevent such use.” Votes
of thanks for services to CCL this year by Kevin O’Rourke, Sarah Hopkins and
Susan Smith were carried unanimously by the meeting. Dom Velcic, a University
of NSW law student who recently formed a branch of CCL at the University, gave
a report on the activity of the branch and its future plans. The meeting passed
a vote of thanks to Lord Mayor of Sydney for making the Lady Mayoress’ Room
at the Town Hall available for the CCL annual general meeting.
2. AN OLYMPIC EDITORIAL
The day after the 2000 Olympics
began on 15 September, The New York Times, which had ten reporters covering
the Sydney Games, published an editorial headlined “The Other Australia”. It
said, in part: “It was a splendidly diverse and inclusive face that Australia
presented to the world in the Olympics’ opening pageant, particularly by having
the Aboriginal sprinter Cathy Freeman carry the torch on the final leg of its
journey. “As if seeking a mirage, Freeman walked through a pond towards
an idyllic waterfall to light the Games’ Cauldron. This progression of the Olympic
flame could well serve as a metaphor for the quest of Aborigines to achieve
social justice and historical reconciliation in today’s Australia. Unfortunately,
in this quest, the idyllic waterfall-like destination remains somewhat of a
mirage. “The Sydney Olympics will help shine a spotlight on Aboriginal culture
and its historical plight. The attention should prove uncomfortable to the Australian
Government. The country has made great strides on the racial front in recent
decades, but it is showing some distressing signs of weariness from the progress,
and a resistance to march onwards. In recent months, the Australian Government
has ceased co-operating with the United Nations human rights monitors looking
into the status of Aborigines and has opposed calls for an official apology
for past wrongs. Perhaps catching its reflection in the global glare will force
Australia to reconsider these positions. “Of course, it is difficult for
Americans to cast stones on this score. But we can appreciate democratic Australia’s
journey to come to terms with the scars of its past because our past horrors
are, if anything, more grave, our own journey equally incomplete ... “The
Aboriginal experience ... is depressingly similar to that of native Americans
in the United States. European settlers viciously drove the Aborigines from
their land, massacring thousands with impunity. Today, 390,000 account for 2
percent of the population ... Cathy Freeman’s own grandmother was taken [as
part of the stolen generations], and the athlete has denounced Prime Minister
John Howard’s refusal to issue an official apology for the policy ... “Australia’s
move to stop co-operating with UN fact finders monitoring the treatment of Aborigines
is distressing. Australia is a resilient enough democracy to take strong criticism,
even if the Government thinks the criticism unfair or misguided. “But
instead the Government has set a horribly destructive example at a time when
ethnic minorities in less enlightened countries must increasingly rely on international
vigilance to ensure their survival. “Activists will use the Olympics to pressure
the Government to further the country’s reconciliation with the past. For her
part, Freeman is expected to carry both the Australian and Aboriginal flags
on her victory lap if she wins a gold medal. Her competitors will pardon us
for saying that would be a wondrous sight.”
3. CCL ON UNSW CAMPUS
A
branch of the CCL has been formed
at the University of NSW, bringing a new generation and new territory into CCL
activities. Led by Dom Velcic, a law student, (domvelcic@ozemail.com.au ), the group
is recruiting members, gathering faculty support and assisting in research and
submissions in civil liberty cases. Ken Buckley, Pauline Wright, Robert
Goff and Davie Bernie are among CCL Committee members who have recently briefed
the branch on CCL aims and policies or will do so soon. Among current
branch priorities are the Leigh Leigh case in Newcastle (see “Civil Liberty”
November 1998) the Di Suvero case in Sydney, mandatory sentencing, prison reform,
and immigrant detention. The student group helped prepare a submission
to the Administrative Appeals Tribunal (AAT) in the appeal of Sydney barrister
Henry Di Suvero against a disciplinary decision of the NSW Bar Association which
imposed a six-month suspension on Mr Di Suvero. The concern of CCL centres on
the belief that the decision represented a restriction in the ability of defence
counsel to rigorously defend a client. The conduct in question occurred in Court
during a criminal trial. The UNSW CCL, with the supervision of David Bernie,
prepared a submission to the tribunal as amicus curiae (or friend of the court),
arguing that a limit on counsel’s ability to present a rigorous defence was
an infringement of the rights of an accused. The Bar Association objected
to CCL’s submission, arguing that the Tribunal did not have the power to receive
submissions from amicus curiae. The tribunal did not accept the submission
from CCL. The decision not to accept was based largely on jurisdictional points.
The case may yet go to the Federal Courts. The UNSW activists have established
links with the Newcastle Legal Centre which has scrutinised police actions in
the controversial case of Ms Leigh Leigh, a Newcastle teenager murdered there
in 1989. The Police Integrity Commission recently recommended, 11 years
after the events, that criminal charges be laid against five detectives who
investigated the murder. The Commission report said that police had “operated
outside the law” in arresting a young man later convicted of murder and now
serving 14 years. The finding against the detectives may give the convicted
man grounds for appeal.
4. FAMILY RIGHTS REFORMS
New
Federal legislation aims to improve the rights of separated parents in arranging
and targeting family support payments. The reforms were prepared by the
Community Services Minister, Larry Anthony, and will be implemented by the Child
Support Agency. Many separated parents, most of them fathers, have complained
that previous legislation, introduced in 1988, was onerous and unfair. The
Child Support Agency says many fathers claim some of the money they are required
to pay to their previous spouses for child support does not reach the children.
Another complaint by many men is that the payment scale is more than they
can afford or prevents them having a second family. The reforms aim to:
- Ensure greater contact between support-paying parents and their children.
- Allow supporting parents to
reserve 30 percent of their income for a second family, while meeting obligations
to their first.
- Reduce the income cap (from
$101,000 to $79,000) at which child-support ceases to be assessed as a percentage
and becomes a fixed maximum amount.
The changes
would not affect the cap of 25 percent - introduced last year - on the amount
of child-support payments that could be specifically directed by the paying
parent. The remaining three-quarters is paid directly to the other parent. Similarly,
the legislation will not alter the structure of child-support payments, which
are struck as a percentage of the paying parent’s income, taking into account
the number of children and the amount of contact between children and paying
parent. The Child Support Agency came into being in 1988, when the Hawke
Labor government devised the prices and incomes Accord. The Accord included
emphasis on the improved “social wage”, including tax breaks and better targeted
welfare. Child support, making separated parents pay for their own, was included.
The greatest shortcoming has been that money goes to the other parent
(usually the mother) not necessarily to the children. Money for children
has to be paid from one parent to another with no certainty that the recipient
will spent it on the children.
5. NEWS FROM RIGHTS FRONTS
A. DISCRIMINATION DEBATE
A
treaty protecting women from discrimination will become international law, despite
Australia’s decision not to sign as part of its protest at the committee system
of the UN. Italy became the tenth country to formally ratify the Optional
Protocol to the Convention on the Elimination of All Forms of Discrimination
Against Women, giving it enough support to pass into law on December 22. The
protocol establishes a new committee that will hear complaints of discrimination
from women who believe their cases have not attracted appropriate action in
their own countries. Australia refused to sign the protocol, claiming
that the UN committee system does not give governments a sufficient hearing.
Federal Cabinet decided to push for reform of the committee system after UN
reports criticised Australia’s record on Aboriginal health, mandatory sentencing
and asylum seekers. The Foreign Minister, Alexander Downer, says that
Australia will broaden its reform campaign by “spearheading a high-level diplomatic
initiative” to get support from other countries. He said New Zealand might help.
However, New Zealand became the ninth country to sign the protocol. Many
women’s groups joined protests against the Government’s decision not to support
the UN protocol protecting women’s rights. Around 200 women’s groups signed
a letter to the Prime Minister in protest at the decision. The conservative
Young Women’s Christian Association and Soroptimists International, a group
that usually shuns political debate in public, joined other less conservative
groups.
B. PRISONS
CCL and the Redfern Legal Centre have produced a handbook
on prisoners’ rights, covering major issues and giving practical advice. A
grant from the Law Foundation of NSW enabled research and writing about the
prison system, including some indications of how the system might be changed
to better respect the rights of prisoners. The Australian legal and bureaucratic
tradition has been to subordinate prisoners rights to administrative needs.
Prisoners and their advocates will be assisted by the handbook at all stages
from remand to release. It was published to clearly set out the basic
rights and entitlements of prisoners, both existing and potential, in NSW. The
existing rights do not all conform to international standards. The handbook
may therefore help prisoners and their advocates pursue remedies to enforce
prisoners rights. The book seeks to promote satisfactory prison conditions and
to strengthen the rights of prisoners. Whilst much of the information
appears general and is not specifically about rights, fundamental principles
underlie the day-to-day issues and entitlements. For example, there are chapters
on health and drugs, and communications and visits. The handbook, edited
by Margaret McAllister, also contains information about general prison conditions
and administrative procedures. There are sections for prisoners with special
needs, such as women, non-English speakers and indigenous inmates. Since
there are 7,500 prisoners in NSW jails (about 20,000 in Australia overall),
this handbook may be widely read. It is almost 300 pages but many of its readers
will have time to study them all closely. Every prison library should order
several copies. The book is available for sale from:
Redfern Legal Centre Publishing
122 George Street
Redfern NSW 2016
Ph: (02) 9698 3066
Fax: (02) 9698 3077
C. CCL POLICY ON DNA
CCL has expressed
its opposition to recent proposals that DNA samples be taken compulsorily at
birth. The Council opposes this on three main grounds.
1. DNA evidence is open
to abuse or misinterpretation.
2. It makes social engineering
on a genetic basis a possibility.
3. It doesn’t allow the
child any choice. Adults can be asked to provide a sample and may do so willingly,
as happened recently at Wee Waa, NSW.
“To
require universal DNA testing at birth is an excessive and unwarranted intrusion,”
says CCL Vice President, Pauline Wright. The argument that a DNA database
will make the detection of criminals more efficient forgets that efficiency
is not always positive. Further, DNA evidence will be subject to all the
usual evidentiary problems but because many see DNA as definitive, its potential
for harm and prejudice is far greater. This evidence will be far from definitive.
Scientific information has to be interpreted and there is always a danger that
it will be wrongly interpreted. The Lindy Chamberlain case included examples
of forensic error. Most suspects will have limited access to the expertise
necessary to counter police interpretation of DNA evidence. The confidentiality
of information is often inadequate. Somehow, information has a way of being
disclosed to officials who want it. The advance in human gene technology extends
the possibility for DNA abuse beyond the criminal sphere. It will be possible
to use DNA profiles to identify many characteristics. “The dangers of
DNA databanks must be recognised before they intrude on civil liberties and
social justice,” says Ms Wright.
DNA SAMPLES DESTROYED
DNA
samples taken from 420 men in the NSW farming town of Wee Waa have been destroyed.
Independent witnesses joined police at an incinerator in Sydney to oversee
the destruction of the swabs. The exercise fulfilled a commitment made by NSW
Police to the 2,000 residents of Wee Waa and the men who took part in the test
that the DNA samples would be destroyed. Also destroyed were analysis
data of saliva, thumbprints and photographs. The only samples not destroyed
were those from a man who admitted sexually assaulting a 91-year-old woman in
Wee Waa last year. He surrendered to police ten days after the test, admitting
to the crime before his results were known. He was sentenced to 12 years imprisonment.
The witnesses to the incineration included an official from the office
of the NSW Ombudsman. Police lack the legal power to compel anyone to
submit their blood for comparison against DNA from material found at the scene
of a crime. At least a dozen men in Wee Waa refused to take part in the blood
tests.
6. PRESIDENT’S REPORT
Annual General Meeting 25 October 2000
“People
do have civil rights. This is not a police state and police and government
are bound by the law.”
These
words, spoken just one week ago, did not pass the lips of a civil rights leader.
They were instead spoken the NSW Premier, Mr Bob Carr, in response to a $1m
court award to the members of a northern NSW commune for a botched police raid. The
Premier’s statement is a measure of how far civil liberties have progressed
in NSW. People do have civil rights, yet we still have some distance to travel
before that statement is fully realised. The Wood Royal Commission exposed
the obvious - that police corruption flourished in NSW, with all the evil that
accompanies corruption, including the fabrication of evidence to convict the
innocent. The police service has since been implementing “reform” measures.
We now learn that the Police Integrity Commission is to investigate whether
some senior police officers are obstructing these reform measures. In due course
we will no doubt be told that there is some truth in this. The reality is that
corruption continues to flourish and innocent people continue to be wrongly
convicted.Those convicted of crimes, whether innocent or guilty, may then be
sent to a prison where rehabilitation of the guilty can only occur in spite
of the prison system. Kep Enderby has said that up to 90 per cent of those
languishing in prison should not be there in the first place. He is of course
right, and was therefore not re-appointed to the Serious Offenders’ Review Committee
which he chaired. The NSW Parliament is currently inquiring into women’s’
prisons, and CCL has been an active participant in that inquiry. Reform is
long overdue. Quite apart from the issues of crime, punishment and police, civil
liberties concerns continue to arise in many other areas. Two are worthy of
note. There is a noticeable shift towards censorship, especially in newer
media, such as pay TV and the internet. A report on the first six month’s operation
of Australia’s on-line censorship legislation has revealed that 62 takedown
notices were issued during that period - about one every three days. The notices
are issued to internet service providers rather than content providers and I
suspect we don’t hear about what is happening because the service providers
are keen to ensure the viability of their businesses. Most of the notices related
to sexual activity; none related to do-it-yourself bomb recipes. The actual
details are scant but censorship on this scale should not go unchallenged. Another
issue worthy of note is privacy. It is the number one topic for media interviews
and generates a substantial number of complaints. The right to be let alone
arises in numerous contexts: the ever pervasive street cameras; the personal
data held on ever increasing databases; and the decoding of our DNA (allowing
insurance companies to refuse insurance because of genetic pre-disposition to
disease). The Federal Government has enacted “light touch” privacy legislation,
which is really “light fingered” legislation because all the best bits have
been stolen. The scope is narrow and the exemptions broad. It is a start,
but we should expect a lot more in an information technology age. There
are of course many more concerns: new powers to call in the military for domestic
issues; mass DNA testing; moves to restrict the right to silence; and so on. A
Bill of Rights would go some way to addressing our concerns, but what chance
is this without bipartisan support? We struggle even to get a minimalist Republic
model accepted. We should continue to campaign for a Bill of Rights but in
the meantime will need to address the individual issues as they arise. To
do this requires a strong CCL, focused on the external issues rather than the
internal issues. In recent times the focus has been wrong. The scarce resources
of the CCL, principally our volunteered time, has been spent on too many internal
issues. This focus must change. Tonight I step down as president having
served in that capacity for three years. Your incoming president, Cameron Murphy,
will be a great president. He has my full support and I trust will have your
support also. Finally, I wish to record that, despite the burdens of the last
three years, I will never forget the enormous privilege it has been to serve
as president of a great organisation. For that, and for your friendship and
support, I am truly grateful.
Kevin O’Rourke
President
7. RIGHTS OF CRIME VICTIMS
The rights of
the victims of crime is the subject of a recent study by the Australian Institute
of Criminology (ACI) *. According to recorded crime statistics, over one
million people in Australia are victimised by crime each year. In 1998, almost
one in every 100 persons was a victim of crime against the person, and just
over six in every 100 persons were victims of crimes against property.
These figures do not include the friends and family of the victim, and the community
in general, who also suffer as a result of the crime. The ACI publication
coincides with the issue of a handbook on the rights of criminals in prison,
reviewed elsewhere in these pages. Since the rights of victims of criminals
often get less attention than the rights of criminals, the ACI research and
report will be valuable to civil liberties and human rights groups.
A. CHARTER OF RIGHTS
Five
jurisdictions (NSW, Queensland, SA, ACT and NT) have enacted a charter of rights
for victims of crime that establish guidelines for the treatment of victims
of crime by public officers within the criminal justice system. For example,
these charters require that public officers treat victims of crime with courtesy
and compassion, and with respect for their dignity and their need for privacy.
However, these documents do not create legally enforceable rights for victims
of crime. The charters of rights have had an effect in certain areas.
Police in several jurisdictions take the charters seriously and have introduced
reforms accordingly. The charters of rights would be improved by the specific
recognition that victims have a right to have their views taken into account
when consideration is being given to whether it is in the public interest to
prosecute. Some experts suggest that victims of crime have the right to
make submissions, and to have their views taken into account by the prosecution,
when consideration is being given to whether charges are to be laid, withdrawn
or modified; or to whether a plea of guilty to a lesser charge will be accepted.
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There were over 1.3 million reported victims of crime in Australia last year.
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There were 173,250 reported victims of crimes against the person - a rate of 924
victims per 100,000 population in 1998.
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The highest rate of victimisation
by crimes against the person was in the NT (1498 victims per 100,000 population)
and the lowest was in Victoria (512 victims per 100,000 population).
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There were 1,132,456 victims of
crimes against property - a rate of 6039 per 100,000 population.
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It is possible to respect the rights
and needs of the victim without endangering the rights of the accused, but
there is also growing recognition, both nationally and internationally,
of victims’ rights.
B. STIGMA OF CRIME
Despite substantial improvements in the treatment of victims
in many jurisdictions, the majority of communities still do not have services,
and many victims may face isolation, blame, and injustices through the stigmatising
effects of crime. Victims need information just as accused persons do.
At all stages of the criminal justice system victims need and want to know what
to expect, and to be provided with information about the progress of their case.
Providing victims with as much information as possible enables them to
make choices and attempt to regain some of the control that was taken from them
as a result of being the victims of criminals. According to a survey of
victims conducted in Victoria, it is very important for victims to receive information
about their case. This includes: the progress of the investigation; when
charges were laid and court hearings scheduled; the outcome of the case; when
the offender will be released from prison; and their eligibility for crimes
compensation. Victims also indicated they would like the police to provide
more information about processes and services.
Victims
felt that it was crucial that they be provided with information about their
rights and obligations, what they should do in response to the crime, where
they could go for help and the options for assistance available to them.
The booklet is entitled>
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“Victims’ needs, victims’ rights: policies and programs for victims of crime in Australia”.
It is published by:
The Australian Institute of Criminology
GPO Box 2944
Canberra
ACT 2601
tel: (02) 6260 9200
fax: (02) 6260 9201
email: Front.Desk@aic.gov.au
web: http://www.aic.gov.au
8. SCRUTINY OF CENSORS
Two
recent censorship orders by courts have been reversed, but others prevail despite
public and media opposition. The NSW Supreme Court struck down a “gag
order” preventing a freelance journalist from exposing the business dealings
of Malaysian tycoon, Tan Chee Yioun. Justice Levine cancelled an injunction
granted in February restraining journalist Ganesh Sahathevan from distributing
information about Mr Tan’s interests in Australia. Mr Sahathevan was sued
for defamation and “injurious falsehood” after he sent emails to business journalists
in Australia about Mr Tan, a friend of Malaysia’s Prime Minister, Dr Mahathir
Mohamad, and head of the Berjaya Group, which has assets of about $5 billion.
The injunction was granted under the Fair Trading Act. The Press Council
protested, and the NSW Minister for Trading, Mr Watkins, intervened in the case.
Mr Sahathevan argued that it was an important press freedom case. Justice
Levine ruled that “The Fair Trading Act was never meant to be a substitute for
actions for defamation ... the court should (not allow its use) for a purpose
for which it was never intended.” The second case involved members of
a Melbourne Jewish family who admitted involvement in a $42 million international
money-laundering scheme. The head of the family was jailed for five years.
His wife and sons were freed on suspended sentences by Victorian County Court
judge Michael Strong. Judge Stron sentenced the group last June, but suppressed
reporting of the sentences because of claims that disclosure of information
on the sentencing could have aborted another trial. The suppression order was
lifted in October. The third case involved The Australian Financial
Review publishing a critical article on its opinion page about the Palestinians.
Fairfax Publications said a decision by the Equal Opportunities Division
of the NSW Administrative Decisions Tribunal, if upheld, poses “very severe
restriction” on freedom of speech in the media. The case concerned a comment
published on December 23, 1998 which suggested the Palestinians could not be
trusted in the Middle East peace process. Mr Ali Kazak complained the
article vilified Palestinians. The paper argued that while the article was strongly
worded, it was clearly marked as opinion. The tribunal rejected the defence
of comment - something accepted in defamation law. The tribunal is yet to decide
on a “remedy”. The paper is likely to appeal the decision, saying the
finding amounted to a significant restriction on the ability to comment on international
matters in a “full-blooded way”. Sydney newspapers are also opposing court
orders to conceal the name of a man alleged to have committed sex offences who
remains a teacher in a Sydney school. The recent spate of court censorship
decisions is disturbing, and public and media scrutiny of such decisions will
have to be maintained to reverse or limit it. Legislation for censorship
of information published on the Internet is now in operation. In its first six
months 62 “take down” notices were issued against on-line service providers.
(C) 2001
New South Wales Council for Civil Liberties Inc.
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