Welcome to the February 2017 issue of the NSWCCL Newsletter
In this issue:
National issues | Defending s18C and the AHRC...again! | Asylum Seekers | Ratification of OPCAT | Civil Liberties perspective on a national integrity body | Access to telecommunications data in civil proceedings
NSW Issues | New police oversight body | Defending the right to protest | Know your Rights Booklet | Reorganisation of Justice portfolio
CCL Issues | 10th Anniversary Marsden Lecture | Submissions | Join an Action Group
Defending s18C and the Human Rights Commission – again!
Both s18C of the Racial 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; 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.
In December 2016 CCL made a formal submission to the Parliamentary Committee reviewing s18C and the processes of the Commission. We
We are currently supporting the GetUp ‘#HandsOff 18C’ campaign and recommend members to do so.
The Committee has recently held public hearings on the inquiry and will report to Parliament in late February. We expect the Government will try to bring draft legislation to the Parliament this session.
We urge supporters of s18C and the Human Rights Commission to make their views known to their local member, the AG and the Prime Minister on this matter.
We welcomed the deal whereby a number asylum seekers on Nauru and Manus Island would be considered for resettlement in the United States, despite the uncertainty as to how many asylum seekers the deal applies to and the fact that there is little transparency regarding the arrangements. However, given more recent events in the US and the well publicized conversation between Malcolm Turnbull and Donald Trump, the prospect of anyone being resettled in the US on a timely basis looks remote. We maintain our opposition to offshore processing and the offshore detention centres. They should be closed immediately and all people brought to Australia.
In the past few months there was a Senate inquiry into a proposed lifetime ban for Australian visas for those who have been detained offshore. We oppose this ban and lodged a submission to this effect.
We congratulate the Refugee Council on the positive outcome in their High Court case concerning the processing of asylum seeker applications and hope that these inordinate delays may soon be over.
Together with dozens of other organisations, we signed the open statement organised by the Refugee Council, which calls for immediate action on offshore detention. The offshore detention centres should be closed immediately and all people brought to Australia.
The Senate called an inquiry into the Migration Amendment (Visa Revalidation and Other Measures) Bill. We view this as yet another attempt by the Minister for Immigration to amass extraordinary unwarranted powers. We support the submission of the Law Council.
Ratification of OPCAT
We congratulate the Federal Government on agreeing to ratify the Optional Protocol to the Convention Against Torture (OPCAT). We have been arguing for ratification of OPCAT for some years. Ratification of OPCAT allows inspection of places of detention by independent monitoring bodies. This is an extremely welcome development given the deficiencies in the juvenile justice system. We would argue that the oversight regime should extend to offshore detention centres, but expect the Government would resist such an application.
A Civil Liberties position on a national integrity body?
In February 2016 a Senate Select Committee was set up to ‘inquire into whether a national integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct.’ NSWCCL gave some time to considering what position, if any, it would take on this contentious matter, however the Turnbull generated double dissolution led to the lapsing of this Inquiry. The Committee produced an interim report of no great consequence in May.
The Senate accepted an ALP motion on Wednesday 8th of February to establish a Select Committee to inquire into whether a National Integrity Commission is needed, and if so its scope and power. It is to report by the 15th of August. This decision pre-empted a later resolution by the leader of the Greens, Senator Di Natale, calling on the Senate to bypass an inquiry and "support the establishment of an independent federal anti-corruption commission to oversee federal members of parliament and the public service”. This was defeated.
In the past NSWCCL held a clear position of opposition to all such bodies. In recent years the extent of serious and systemic corruption in NSW and the collateral damage to our parliamentary democracy and the public good has led us to defend the NSW ICAC, as the NSW Bar Association and the Law Society have done, because ICAC has uncovered multiple instances of serious corruption that would otherwise not have been detected.
Last year CCL decided it was appropriate it take a position on the question of a national integrity body. We were cautiously supportive at a conceptual level, but had not worked through any of the particular issues that apply at the federal level when the inquiry lapsed.
Over the next few months we will develop a formal CCL position. There are many civil liberties dangers with such bodies and CCL is very conscious of the imperative for strong safeguards around their powers and strong independent oversight of their operations.
The work will be guided by our Criminal Justice and Police Action group. We would welcome input from members/supporters with interest and expertise.
Dr Lesley Lynch
Access to Telecommunications data in civil proceedings
New police oversight body
A new body of vital importance to the NSW justice sector, the Law Enforcement Conduct Commission (LECC), was set up in January following the passage of The Law Enforcement Conduct Commission Act last year. It brings together the oversight and investigative roles of the Police Integrity Commission, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body to oversight police operations. It has royal commission type powers in some contexts. Its oversight powers relate to the NSW Police Force and the NSW Crimes Commission.
Police critical incidents
The major flaw from CCL’s perspective is that the investigation of police critical incidents (e.g. death or serious harm to a person during a police operation) will still be conducted by the police themselves and not the Commission. This has long been a central concern for CCL. Police investigating police critical incidents is inherently flawed and has too often resulted in unwarranted findings of no police misconduct or negligence. Public confidence in the credibility of these investigations is low.
The Commission does have a stronger oversight capacity than the Ombudsman had. It will have real-time access to information about critical incidents and improved monitoring capacity in relation to the police investigation. But the oversight capacity is seriously weakened by a totally unnecessary restriction that the Commission can only observe critical incident interviews with “the consent of the person being interviewed and the senior critical incident investigator”. This extraordinary restriction on access to the key interviews in an investigation originated from the Government – it was not recommended by Tink. Both the ALP and Greens tried unsuccessfully to have it removed.
On other fronts it is a pity that the Government, despite its public commitment to implement all of Tink’s recommendations, failed to do so in some important areas.
The Ombudsman has pointed out that the new arrangements will ‘diminish rather than strengthen’ oversight of the complaints function previously available to him under Part A of the Police Act in that the Commission’s investigative power is restricted to ‘serious’ misconduct or maladministration.
These and other restrictions on the Commission’s oversight and investigative functions will undermine its capacity to be a driver for significant reform of day to day police culture in the investigation of complaints and critical incidents.
Fighting police corruption in NSW
CCL was cautious about the inclusion of serious police corruption issues within the ambit of the new Commission. We shared the concerns of Commissioner Woods that the weight of the complaints function could swamp and possibly compromise the anti-corruption function. We indicated a preference for investigation of serious police corruption to be the responsibility of a strengthened PIC or reintegrated into a reinvigorated ICAC. Tink and the Government however, opted for its integration into the new Commission, with some safeguards to address Wood’s earlier concerns.
It is clearly an imperative that the capacity for effective and independent investigation of police corruption be strengthened rather than diminished in NSW. Developments on this front will be closely monitored by CCL.
The Commission is not yet fully operational. There have been press reports that a Supreme Court Judge (Justice Michael Adams) has been nominated for the Chief Commissioner’s role. This has not yet been confirmed but Justice Adam’s wide-ranging legal background, including a stint as chair of the NSW Law Reform Commission, would indicate he would be a well-qualified appointment.
Hopefully the new Government will actively support the Law Enforcement Conduct Commission and, if problems are identified with its powers and resources, be willing to amend the legislation or the budget appropriately.
NSWCCL will closely monitor the operation of the Commission in 2017 to see if it can deliver significant reform and effective independent oversight of the Police Force and the Crimes Commission.
Dr Lesley Lynch
Defending the right to protest
KILLSWITCH DOCO SCREENING- Get your tickets now!
The John Marsden Memorial Lecture held on 1 December, with the Hon Michael Kirby AC CMG as our guest speaker was a great success! See more details on our website.
NSWCCL in the Media
Our president Stephen Blanks has had a busy time as usual in the media discussing civil liberties issues.
Shocking video shows police officer knee man in ribcage during violent western Sydney arrest
Anti-lockout rally shut down: do you have the right to protest?(21/01/2017-ABC-Triple J-Hack)
NSW MP Jonathan O'Dea says 'reasonable people' would support burka ban