We held our AGM on Wednesday October 25.It was a well attended event - an opportunity for those interested in civil liberties to meet, discuss current issues and socialise afterwards. We elected our new Executive and Committee for the coming year and are delighted to welcome some new faces. Policy positions on marriage equality, a national human rights charter, a national integrity commission and voluntary assisted dying were adopted. You can read more here
COAG has agreed to the establishment of a National Facial Biometric Matching Capability which will have access to all drivers licences in Australia - as well as visa, passport and citizenship photos. This massive biometric database will be available to state and federal security and law enforcement agencies. The rationale for this very significant increase in the capacity for real time government surveillance of most Australian residents is, of course, to better protect us.
We want governments to do all that is possible and proportionate to protect us and, as part of that, we support effective coordination between states and the federal agencies. However, NSWCCL fears that this development in mass surveillance capacity will have- over time - significant implications that are not currently appreciated for the nature of our society and the robustness of our democracy.
We note that our political leaders in their untroubled endorsement of this- and related- initiatives have blithely dismissed any concerns about the admitted impact on our privacy or other liberties we have traditionally valued.
We could take greater comfort in their assurance that they will simultaneously be 'maintaining robust privacy safeguards'if they showed a greater appreciation of, and concern for the associated risks and the likely implications of this increased capacity for state surveillance on citizens.
At this stage there is little detail as to how this increased surveillance capacity will work and what will be done to protect this massive trove of our personal biometric data from hacking or misuse.
NSWCCL has joined with other civil liberties and privacy organisations to express our deep concern at this new and significant expansion of surveillance capacity. It looks to us like a step too far even in the context of an ongoing terrorist threat.
Joint media statement
There is widespread and well argued community and expert support for a national body to expose and prevent serious and systemic corruption within, and relating to, public administration (including the electoral process and parliament including MPs and their staff).
In April this year, NSWCCL joined others in arguing strongly for the immediate establishment of such a body to a Senate Select Committee specially established to consider (yet again..) this longstanding and increasingly urgent issue. (see earlier post)
At the time there was some optimism that at last effective action by the Parliament might be possible. While it was clear the Government would not soften its opposition, it did appear that Labor may shift its position and support some kind of national anti-corruption body. Significantly, the Select Committee was chaired by Senator Jacinta Collins from the ALP.
Unfortunately the recently released report of the Select Committee is somewhat of a disappointment in that its recommendations are equivocal.
Noting the number of recent inquiries into the issue, NSWCCL argued that the time for a decisive recommendation for immediate action on a national body had come:
‘We are concerned that if there is no firm recommendation for the establishment of a NIC from this Inquiry, the same lack of follow-through would again be a likely outcome. ‘
‘Given there appears to be greater openness for action on this issue in the current Parliament than was previously the case, a decisive recommendation may generate positive outcomes. This may not be so at a later time. ‘
Sadly, this argument did not prevail -though it was argued by numbers of key submissions. With the support of the ALP and coalition members, the majority report recommended a transitional approach with priority being given to the position the Government and its agencies had favoured - that the focus of action should be strengthening the existing national framework:
'The committee recommends that the Commonwealth government prioritises strengthening the national integrity framework in order to make it more coherent, comprehensible and accessible.' (Rec 1)
However, the Committee did not reject the strong arguments in support of an overarching anti-corruption body. In fact it found that the evidence was pretty persuasive:
'On the basis of the evidence before it, the committee also believes that the Commonwealth government should carefully weigh whether a Commonwealth agency with broad scope to address integrity and corruption matters—not just law enforcement or high risk integrity and corruption—is necessary. It is certainly an area of great interest to the public and irrespective of whether it is achieved by way of a new federal agency or by some other mechanism(s), current arrangements must be strengthened' (par 4.141, p218)
and therefore called for 'careful consideration' of such a body:
'The committee recommends that the Commonwealth government gives careful consideration to establishing a Commonwealth agency with broad scope and jurisdiction to address integrity and corruption matters.' (Rec 2)
NSWCCL argued that there was no incompatibility between deciding to establish a national body and ongoing analysis of and strengthening of the national integrity framework.
There was committee support for this stronger position from the NXT representative Senator Skye Kakoschke-Moore and Senator Hinch in added comments and from the Green's Senator Lee Rhianon in a dissenting report. All argued for an immediate start on the establishment of a national integrity body.
The Greens also agreed with the NSWCCL position that the new body should be empowered to conduct public inquiries where it is in the public interest to do so.
The Committee made 5 other process related recommendations which are all positive and reasonable- but in our view cannot be an effective alternative to a single overarching national integrity commission.
Where to next
The body of the report makes for a strong argument for a swift move to a national body. The danger is that, given the equivocal recommendations, the moment for the necessary, decisive action will be lost in the chaotic and contentious parliamentary context.
We do not yet have a Government response to the Committee report - or from the Labor Party. However, it is not likely that the Government will decide to go beyond the Committee's recommendations and quite possible that it will ignore recommendation 2 - and possibly others - and focus only on recommendation 1.
NSWCCL will continue to argue the urgent need for a national body.
But we will also join efforts with those seeking to keep alive and progress the other recommendations and try to keep the Government explicitly working on a staged agenda with the eventual establishment of a broad based national integrity commission as a likely outcome.
NSWCCL NIC submission April 2017
Select Committee Report on a NIC Sept 2017
Dr Lesley Lynch
The Custody Notification Service (CNS) is a legislative scheme requiring police to contact an Aboriginal legal service every time an Aboriginal person enters police custody. The scheme was designed and recommended by the Royal Commission into Aboriginal Deaths in Custody in 1991. Since its implementation in NSW around 17 years ago, the CNS has seen the rate of Aboriginal deaths in NSW Police custody plummet from around 18 per year, in the late 1980s, to zero for an unbroken period of over ten years.
Earlier this year, the Commonwealth Government sought to reform the federal CNS (after a finding by the ACT Supreme Court in R v CK  ACTSC 251, that existing federal legislation did not require ACT Police to notify an Aboriginal legal service when an Aboriginal person entered police custody). In amending federal CNS legislation, the Commonwealth consulted at length with the Australian Federal Police but failed to consult widely with Aboriginal legal services. Accordingly, the new 'model' Commonwealth CNS fails to provide Aboriginal people in custody with some of the key procedural rights to which they are entitled under the NSW CNS scheme (click below for further details relating to the proposed federal CNS). Ultimately, the CCL takes the view that the legislation in its unamended form will increase Aboriginal deaths in custody and rates of indigenous incarceration.
The CCL has advised a Senate Legal and Constitutional Affairs Committee of Inquiry and liaised with a range of Aboriginal legal services around the country, in respect to the consequences of the new Bill. While the CCL's submission to the Senate Committee was supported by ALP and Greens Senators, it failed to convince the Coalition Government to substantively change the legislation. Rather, in acknowledgement of the submission by the CCL, the Senate Committee has recommended amending the explanatory memorandum of the Bill to assist interpretation of the legislation in such a way that is more closely aligned with the NSW CNS. The CCL fears that such change is not enough to counter injustice against Aboriginal people within the federal criminal justice system.
A copy of the submission may be found here.