NSWCCL recently lodged a submission with the Attorney General’s Department and the Department of Communications and Arts in January 2017. We reiterated our view that the current metadata scheme is an affront to civil liberties and oppose its extension into civil proceedings. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.
In our submission we noted the international experience, which suggests that metadata rarely makes a difference in criminal investigations.
A commonly cited justification for allowing access to metadata is in family violence or international child abduction cases. However, experts in the field are not convinced this justification is warranted, bearing in mind that perpetrators of domestic violence can also use retained metadata to track their victims.
It is necessary to balance against this issue the fact that allowing access to metadata in civil proceedings can jeopardise the safety of whistleblowers and open the floodgates to fishing expeditions during litigation. Allowing access to metadata in these circumstances is a clear example of mission creep.
For the retention and use of metadata to be justified, it must be beneficial and proportionate to the benefit. In our view, it is not necessary for the reduction of terrorism and other serious crimes, let alone the far less serious issue of civil litigation. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.
In noting this, NSWCCL recommended that:
- The existing legislation should be repealed and a targeted data surveillance scheme instituted instead.
- The period for which information is stored should be reduced from 2 years to 6 months
- Civil proceedings should continue to be excluded.
Read Full Submission Here
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 meant the Inquiry lapsed.
The Committee produced an interim report of no great consequence in that it did not go beyond recommending further research into appropriate anti-corruption systems. It did however canvass the issues with the current system in some detail and it did conclude that there were shortcomings that needed addressing. Even this cautious conclusion was too much for the two government members of the committee (Eric Abetz and David Johnson) and they included a dissenting view there was no evidence of such shortcomings.
The inquiry attracted some very useful submissions - notably that of the Law Council and the NSW ICAC.
The political debate as to the need for a national anti-corruption body is again very much alive. Not surprisingly, the Senate moved as soon as the current session began to reactivate an inquiry into whether a National Integrity Commission is needed and if so its scope and power. It is to report by 15th August. The Senator Gallagher moved the resolution on behalf of the leader of the ALP in the Senate (Penny Wong).
This Senate decision pre-empted a motion later that day from the leader of the Greens, Senator Di Natale calling on the Senate to bypass an inquiry and move straight to the establishment of ‘an independent federal anti-corruption commission to oversee federal members of parliament and the public service”. This was defeated.
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.
It is the latest outcome from the long (and unfinished) campaign to achieve effective independent oversight of NSW Police operations and was largely shaped by the recommendations of the 2015 Tink Report. There are grounds to expect this body will significantly improve some aspects of police oversight and accountability but there are gaps and weaknesses in its structure which do not augur well for the much needed reform of police culture in critical areas and may undermine its overall effectiveness.
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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