The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the Senate Finance and Public Administration References Committee (Committee) in regard to the administration of the referendum into an Aboriginal and Torres Strait Islander Voice (Referendum).

NSWCCL's submission focuses on key issues relating to the disenfranchisement of First Nations people, misinformation and disinformation, and the ongoing integrity and assurance process of the Australian Electoral Commission (AEC).

We support the Voice as an enactment of the Uluru Statement of the Heart, and the proposed amendment to the Constitution of Australia. We submit that the proposed wording is appropriate and should be put to the Australian people in its current form.

Whilst this Inquiry is based on the wording of the proposed amendment, we observe that many submissions provided are more concerned with the concept of the Voice, laced with unfounded fears and scaremongering, akin to those upon the introduction of the Native Title Act 1993.[1] In our submission, we call on the Committee to consider such submissions in that light.

The New South Wales Government parliamentary inquiry examining the 13-year-delay in commencing legislation to protect Indigenous cultural fishing has handed down its findings.

In 2009 the Fisheries Management Act was amended by the NSW Government to acknowledge Aboriginal people's unique cultural connection to sea and inland waters and to protect and promote Aboriginal cultural fishing. A special provision, section 21AA, was also introduced which was intended to protect Aboriginal people from compliance actions for fishing offences if they were undertaking cultural fishing. The Chair's forward sums it up. "Thirteen years later, section 21AA has still not been commenced, and extraordinarily, the will of the Parliament has failed to take effect." 

NSWCCL recently made a submission to the Aboriginal Cultural Heritage (Culture is Identity) Bill 2022 Inquiry. In our submission we acknowledge that this Bill is designed to better protect and support Aboriginal Cultural Heritage (ACH) and that it presents an opportunity for long overdue and meaningful changes to cultural heritage legislation. If passed, it would also effect a tangible step forward for First Nations’ justice in NSW.

In our submission into this inquiry, we outlined how the non-commencement of the Fisheries Management Amendment Act 2009 impacts the fundamental human rights of Aboriginal people living on the South coast of NSW. 

Released by NSWCCL with the Nature Conservation Council and Oxfam Australia 

A coalition of concerned leaders and organisations has called on the NSW Government to take urgent action to prevent any more Aboriginal fishers being incarcerated or fined for exercising their Native Title rights.

Following revelations that Aboriginal people make up 4 per cent of people living on the South Coast, but account for 80 per cent of jail terms for fisheries offences since 2009, the NSW Legislative Council passed a resolution last week.

Raised by Labor MLC Michael Veitch, the motion supported Aboriginal cultural fishing and called for a review of all fines and prosecutions.

Update 2 Dec 2021: NSW Government must recognise Aboriginal cultural fishing in line with parliamentary support

Released by NSWCCL with the Nature Conservation Council and Oxfam Australia 

The NSW government has been condemned for its targeting of Aboriginal fishers following revelations that its unjust actions, which have led to massive over-representation of First Peoples in criminal penalties, coincides with giving an increased take to commercial operators.  

A coalition of concerned leaders and interest groups has called for an immediate moratorium on prosecutions after learning of a strong bias against Aboriginal fishers in NSW crime data and the recent decision to increase the commercial take.   

Aboriginal people make up 4 per cent of people living on the South Coast, but they account for 80 per cent of jail terms for fisheries offences since 2009.  

Update 2 Dec 2021: NSW Government must recognise Aboriginal cultural fishing in line with parliamentary support
Update 20 October 2021: see also our joint media release prompted by the news of a decision to increase the commercial take.  

Members of the Aboriginal community who have a right to fish under the Native Title Act 1993 are being prosecuted under the Fisheries Management Act 1994 (NSW) (FMA) contrary to those rights. Mounting a native title defence is both time consuming and expensive, meaning that a number of Aboriginal men have been incarcerated as they have been unable to defend themselves.

A legislative amendment that would resolve this situation was passed 11 years ago, but hasn't yet commenced. NSWCCL has written to the NSW Minister for Agriculture to urge him to immediately rectify this situation - rights that require a costly legal defence to enjoy are not worth the paper on which they're written.

 8 September 2020

 Systemic racism and the over-incarceration of Indigenous people must be addressed.

NSWCCL’s upcoming online panel discussion, on 11 September 2020 at 6:30pm, featuring Judge Myers AM, Sarah Hopkins, Teela Reid and NSWCCL President Nicholas Cowdery AO QC is a call to action in relation to the implementation of the recommendations of the ALRC’s report “Pathways to Justice”, including a focus on the crucial need for a commitment to justice reinvestment and specialty courts (such as the Walama Court in NSW).

In 2018 the Australian Law Reform Commission (ALRC) was asked to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander adults make up around 2% of the national population, but constitute 27% of the national prison population. The ALRC Report was released in March 2018 and includes 35 recommendations, most of which have simply not been addressed.

His Honour Judge Matthew Myers AM, Commissioner in charge of the ALRC Inquiry, said that while the problems leading to the over-representation of Aboriginal and Torres Strait Islander peoples in prisons are complex, they can be solved,

“Law reform is an important part of that solution. Reduced incarceration, and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system, will  improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples, and lead to a safer society for all.”

Since 2011 Just Reinvest NSW has been working to support communities to explore and establish justice reinvestment initiatives, including in Bourke, NSW. The focus is to reduce imprisonment rates by directing resources into building strong and safe communities, rather than funding prisons.

Sarah Hopkins, Chair of Just Reinvest NSW, believes that what is required is a shift in the way we view prevention, intervention and justice:

“If we are real about this, what is needed is not just a shift in funding out of prisons and the criminal justice system into crime prevention and early intervention, but a more fundamental shift in power from government to communities, including power over resources. This is about community aspirations and resilience.”

Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist, says that if NSW is serious about protecting civil liberties, then it is time to get very uncomfortable with the status quo.

“The truth is Australia is a colony built on racism, it is written into the laws and operates within its institutions.  Systemic racism requires systemic change. If you deny racism exists, then you are part of the problem. This land always was, always will be sovereign Aboriginal and Torres Strait Islander land, sky and sea.”

Ms Reid asks if we are all prepared to confront our own power and privilege to dismantle the systemic racism that continues to oppress. She states that the Uluru Statement from the Heart and the Walama Court ‘are radical attempts to change systems in our search for truth and justice.’

In considering the journey of Australia’s First Nations peoples, NSWCCL President Nicholas Cowdery AO QC believes we need to understand the history of colonialism and dispossession that has led to the disadvantage experienced by Aboriginal and Torres Strait Islander communities. In order to walk with Aboriginal and Torres Strait Islanders ‘in a movement of the Australian people for a better future’ as the Uluru Statement invites, then we also must acknowledge the resilience of Australia’s Aboriginal and Torres Strait Islander peoples.

Mr Cowdery commented:

”Australia’s First Nations peoples constitute the world’s oldest living culture - over 65,000 years. Colonisation took away their land, languages and many traditions and has left them almost without a voice to power. That process has created social disadvantage leading directly to over-representation in prisons around the country.

…This panel will discuss how we reached this disgraceful situation, why now is the time to recognise the resilience of First Nations peoples and to do something about it – and what can be done, drawing upon a huge body of knowledge already assembled.”

2020 has been a challenging year for many individuals and communities. For those who have experienced financial hardship, or are not in a position to pay for a registration, NSWCCL is offering free registration.

“We want to share this important panel discussion with as many of our members and supporters, and beyond, as we can,” says Mr Cowdery.

Registrations - https://www.nswccl.org.au/tickets_2020_nswccl_fundraiser
Free invitation - https://www.nswccl.org.au/invitation_nswccl_2020_panel_discussion

The NSWCCL First Nations Justice panelists:

• Nicholas Cowdery AO, QC, President of the NSWCCL
• Judge Myers AM, lead Commissioner of the ALRC’s inquiry into Incarceration rates of Aboriginal and Torres Strait Islander Peoples
• Sarah Hopkins, Co-Chair of Just Reinvest NSW and the Managing Solicitor of Justice Projects at the Aboriginal Legal Service ACT/NSW
• Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist

The webinar discussion will be held on Friday 11th September at 6:30pm and will be moderated by the 2019 winner of the NSWCCL Award for Excellence in Civil Liberties Journalism, Richard Ackland AM. The 2020 NSWCCL Awards for Excellence in Civil Liberties Journalism will also be announced.

Download this statement as a PDF.

NSWCCL affirms our heartfelt support for the Black Lives Matter movement and its goals in seeking to eradicate systemic racism from our societies. We encourage all our members and those sympathetic to the cause of human rights and civil liberties to likewise support the BLM movement in any way reasonably possible.

NSWCCL has always acknowledged the pervasiveness of institutional racism in Australian society, ever present even 232 years after the brutal colonisation of this continent on racist terms. We strongly support all attempts to remedy this history of injustice and end the systemic disadvantage faced by Aboriginal and Torres Strait Islander peoples. Foremost among the injustices committed against indigenous peoples are those perpetrated by the criminal justice system.

Discrimination and unreasonable violence at the hands of police is an ongoing concern, as the cases of David Dungay Jr and the incident in Surry Hills recently emphasised. There have been 434 indigenous deaths in custody since the 1991 Royal Commission – including the recent death of Tanya Day, which the coroner found to be preventable – and its recommendations have never been fully implemented. To our knowledge, no one has ever been convicted in relation to those deaths. Indigenous peoples are over-policed and over-incarcerated, with adults 15 times more likely to be incarcerated than non-indigenous Australians and juveniles 26 times more likely to be incarcerated. The Australian Bureau of Statistics reported in December 2019 that while Aboriginal and Torres Strait Islander people make up around 3 per cent of the total Australian population, they account for 29% of the total adult prisoner population in Australia. 

NSWCCL calls for the implementation of the 1991 Royal Commission recommendations and the recommendations in the Uluru Statement from the Heart as a start in the ongoing struggle to end these shameful outcomes.

In relation to the protests on June 6, 2020, NSWCCL supported the right of people to rally in accordance with the decision of the NSW Court of Appeal authorising the assembly. It seems the protests were orderly and respected the public health imperative while remaining truly powerful. Police and protestor seemed largely to demonstrate appropriate respect and restraint. However, the worrying incident at Central Station involving the pepper spraying on protestors may raise serious questions.

Community anger and distress over the last-minute moves by the government and the police to prohibit the protest rally would not be so strong had it not been for the unexplained inconsistency in official responses. For example, a recent protest in Sydney boasted of thousands of attendees in clear contravention of the Public Health Orders and the government and police reacted very differently. There was also widespread confusion over the inconsistency between the response of the South Australian Government and Police to protests in Adelaide, which was to exempt that protest from the effect of the COVID-19 regulations, and the response in NSW. 

We urge all parties to bring their attention to driving systemic changes to achieve much needed justice for Indigenous Australians and continue exercising the restraint called for in a liberal society governed by the rule of law.