The NSW Council for Civil Liberties is gravely concerned that doctors, teachers and social workers employed in Australia’s immigration detention network could face jail for speaking out about their experiences.
With the Border Force Act 2015 coming into effect, employees working in various capacities face a two year sentence for recording or disclosing “protected information” they come into contact with as a result of their work.
As the Australian Medical Association and the Royal Australasian College of Physicians have noted, this restriction on free speech will prevent doctors from following their professional and ethical obligations to advocate on behalf of their patients.
“This legislation is particularly troubling given the history of poor care in immigration detention,” says NSWCCL President Stephen Blanks.
“It is telling that doctors who have worked in these centres at the highest level have previously decided to go public with their concerns. Systemic failures have led to gross human rights violations.
“These public disclosures have put pressure on governments to improve conditions in the centres.”
A steady flow of leaks to the media about sexual assaults in the Nauru detention centre eventually forced the Department of Immigration to order an independent review in October 2014. It found credible evidence of sexual assaults, which the government has now been forced to acknowledge and act upon.
“While forcing government action is one important outcome of such disclosures, it must also be remembered that the public has a right to know what is done in their name,” says Blanks.
Detention centres have always been places lacking in public scrutiny where civil liberties are overlooked. Successive governments have made sure to keep the people detained out of public view, hiding the trauma and lasting damage indefinite detention inflicts.
While the CCL notes the assurances that the new Border Force Act will not cancel out existing safeguards in the Public Interest Disclosure Act, we are unconvinced this legislation is sufficient. It sets too high a bar for whistleblowers, and circumscribes too tightly the situations in which they may share information with the public.
Furthermore, the existence of this legislation is a danger even before any doctor, teacher, or humanitarian worker is dragged before a court. Its mere existence is a threat to would-be whistleblowers, an attempt to intimidate Australian workers who see something wrong into staying quiet about it.
We know that this government has a particularly ugly tendency to target those who try to bring abuses in detention centres to the public’s attention, as seen by the unrelenting attacks on Australian Human Rights Commission President Gillian Triggs.
“Australia’s immigration detention network has been made a dark place,” says Stephen Blanks.
“With this new act, the government is trying to blot out the small rays of sunlight still getting in.”
NSWCCL this week has written to Minister for Indigenous Affairs Nigel Scullion and the Prime Minister Tony Abbott calling for the Federal Government to continue its funding of the Custody Notification Service (CNS).
The CNS is a telephone hotline providing personal and legal advice to indigenous people taken into custody. Under NSW legislation it is compulsory for the Aboriginal Legal Service (ALS) to be notified if an Aboriginal or Torres Strait Islander person is detained, and the CNS is the practical service that allows this to occur. Since its implementation, no indigenous deaths in custody have occurred in NSW/ACT.
CCL previously supported the campaign to 'Save the CNS' in 2013, and it is extremely disappointing that this essential notification service for indigenous people in custody is once again being threatened - particularly in the context of the recent report by Amnesty International that showed Australia incarcerates indigenous children at one of the highest rates in the developed world. It would reflect poorly on the Government's commitment to Closing the Gap and reversing the shameful over-representation of indigenous people in Australia's prisons if the CNS was to cease.
See also: NSW ditches another protection for Indigenous people in custody, The Conversation, 10/06/2015 (Author: CCL member Eugene Schofield-Georgeson)
The NSW Council for Civil Liberties has condemned the secrecy surrounding negotiations for the Trans-Pacific Partnership (TPP) Agreement and the Trade In Services Agreement (TISA), and called on governments involved in the negotiations to release the full draft texts of the deals.
CCL President Stephen Blanks stated that “the draft agreements must be released immediately so that the Australian public can engage in a comprehensive debate about their proposals."
“The current generation of free trade agreements are being negotiated with a complete lack of democratic accountability, and have largely failed to consult non-corporate stakeholders,” Blanks said.
But for leaked drafts released by Wikileaks, the Australian and global public would have no knowledge of the contents of these two agreements.
Guardian Australia revealed on Tuesday that Australian politicians have been told that they can view the TPP text, but must sign a non-disclosure agreement before doing so. DFAT public servants involved in the TPP negotiations have also been made to sign non-disclosure agreements.
Some of the leaked proposals from the TPP, particularly investor-state dispute settlement (ISDS) clauses, as well as intellectual property and environmental regulatory changes, have provoked significant controversy in Australia and other countries involved in the negotiations.
The TISA documents, leaked on Thursday, show that the agreement would involve sweeping regulatory changes in the Australian finance, health, transport, telecommunications and e-commerce sectors.
Blanks said that the wide-reaching nature of the changes in the TPP and TISA made a rigorous public debate all the more important.
“We have serious concerns about the civil liberties implications of some of the specific measures in the TPP, like the potential criminalisation of copyright infringement,” he said.
"But the drastic nature of many of the measures, regardless of one's position on them, makes a thorough and transparent debate in the parliament and civil society absolutely crucial."
NSW Council for Civil Liberties has joined with a number of other human rights groups calling for an overhaul to the way the Australian government campaigns to end the death penalty, today launching a new strategy document: ‘Australian Government and the Death Penalty: A Way Forward’.
Amnesty International, Human Rights Watch, the Human Rights Law Centre, Reprieve Australia, Australians Detained Abroad, NSW Council for Civil Liberties, Civil Liberties Australia and UnitingJustice Australia have joined forces to launch the blueprint.Read more
Welcome to the May 2015 issue of the NSWCCL Newsletter
In this issue:
- 'Chilling' ASIO secrecy law
- Taking CITIZENFOUR to Parliament House
- CCL defends free speech on Sydney Uni campus
- The State of NSW
- The NSW Police Lobby
- Professor Gillian Triggs to speak at CCL Annual Dinner
- CCL sponsors cryptoparty!
- Action Group Profile: Free Speech, Privacy and Open Government
NSWCCL recently made a submission to the NSW Sentencing Council’s Review of proposals relating to sentencing provisions for alcohol and drug fuelled violence. The review was initiated by proposals made from the Thomas Kelly Youth Foundation.
The Attorney General has asked the Sentencing Council to examine issues raised by the section 21A of the Crimes (Sentencing Procedure) Act 1999. NSWCCL's submission outlines a number of concerns relating to the proposed changes, including:
- There is no demonstrated need to introduce a mandatory aggravating factor where the offender was under the influence of drugs or alcohol. This should not be introduced since it would fetter the discretion of a sentencing judge, who can already take intoxication into account in sentencing, and the definition as proposed is unnecessarily broad.
- The concept of vulnerability should not be expanded as proposed with a new definition. This is unnecessary as CCL considers that vulnerabilities as defined in the proposal are already covered under the Act.
- In relation to any other sentencing measures that might be considered, CCL highlights that mandatory sentences for offences committed under the influence of alcohol already in place in the Northern Territory appear to have been unsuccessful in reducing their incidence.
Finally, NSWCCL urges the Government to provide a response to the recommendations made in the NSW Law Reform Commission 2013 Report on Sentencing given its relevance to the proposals in this review.
Speech delivered by NSWCCL President Stephen Blanks to Staff and Student Meeting - Defend USYD Civil Liberties at the University of Sydney on Wednesday 29 April 2015.
I acknowledge the traditional owners of the land on which we meet and pay my respects to elders past and present.
It is pleasing to see concern about civil liberties as a central issue at the University of Sydney. The NSW Council for Civil Liberties has had strong links with the University since our foundation in 1963.
NSWCCL is joining this meeting today because we are concerned that the University reacting in a disturbingly disproportionate way to the incidents which occurred at the Colonel Richard Kemp lecture on 11 March 2015.Read more
NSWCCL has made a submission to the Senate Legal and Constitutional Affairs Legislation Committee arguing that Copyright Amendment (Online Infringement) Bill 2015 – a ‘de facto’ internet filter – should not be passed. In CCL’s view, website blocking is not a proportionate response to copyright infringement, and has major implications for freedom of speech.
The submission identifies a number of key issues in the Bill, including procedural fairness, the broad scope of the proposed legislation, and the potential negative implications for virtual private networks (VPNs), cloud storage providers, and whistleblowers. CCL has provided a number of recommendations addressing these concerns should the Bill continue to proceed through Parliament against CCL’s recommendation.
NSWCCL is extremely concerned by SBS’s decision to sack journalist Scott McIntyre for a series of tweets on Saturday critical of the ANZAC tradition. We are deeply committed to defending free speech in its varied - and sometimes offensive - forms as a central value of a progressive and enlightened society.
Equally troubling has been the reaction to the McIntyre incident from certain sections of the political establishment. Mcintyre’s sacking should be understood as a free speech issue, and not merely as a breach of a vague social media policy in an employment contract.
We note the concerns of the MEAA regarding the increasing pressure placed on journalists to at once build a personal ‘brand’ on social media, and to suppress aspects of their private life, including political views, that their employer may find objectionable. The pressure on media professionals - indeed, many modern professionals - to limit expression of their personal views on social media as a requirement of their employment amounts to a demand for self-censorship that should be roundly rejected.
We are also concerned that, in the modern age, corporate entities can and do restrict free speech as much as governments.
Today's threats to freedom of speech can be nuanced and subtle. Corporations can be at the root of these threats: in the workplace, on the internet, and in public spaces.
Finally, we note, and are disappointed by, the role of Communications Minister Malcolm Turnbull in the incident. Even if Turnbull, as he claims, merely alerted SBS to the tweets, his involvement was highly inappropriate, and would have sent a clear message of disapproval to SBS management. It should be seen straightforwardly as an attempt by a federal government minister to interfere with the independence of a public broadcaster, and gag and punish the speech of a member of the public. We are sure that Turnbull’s intervention would have been of great concern to John Stuart Mill, the author of the classic work on free speech, On Liberty.
The NSW Council for Civil Liberties has joined with the Refugee Council of Australia and over 100 Australian organisations and community groups in urging the Australian Government for an immediate moratorium on offshore transfers to Nauru and Manus Island until all recommendations of the Moss Review and Cornall Report have been fully implemented, and the centres comply with minimum international standards.
The call follows the appalling case of a five year old girl who attempted suicide after prolonged detention on Nauru.
Conditions are similarly poor on Manus Island, where a majority of asylum seekers have still not had their applications processed after two years, and as on Nauru, limited health care is available.
Paul Power, CEO of the Refugee Council said: “No child should be sent there and certainly not sent to a situation while the environment remains so dangerous… [W]e call upon the Australian Government to immediately cease the transfer of vulnerable asylum seekers until all the recommendations of the Moss Review and the Cornall report are implemented.”
These reports highlighted sexual abuse, violence and the systematic failure to provide safety and security to detainees, particularly women and children. The Australian Government, by accepting all the recommendations of the Moss Review, has acknowledged that considerable changes are needed, yet continues to send asylum seekers into a fearful environment where their safety and security cannot be guaranteed.