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.
Public perceptions about safety and the fear of terrorism are behind the push for tough new police powers in NSW, Police Commissioner Mick Fuller has said.
Speaking at a NSW Law Society forum, Commissioner Fuller said it was the public's belief they were unsafe that was driving legislative change, rather than an agenda by police.
Nevertheless, police do welcome the state's new anti-terrorism laws, Commissioner Fuller said, which include the "lethal force" powers.
"The fear of crime drives a lot of public policy, rather than the reality of crime," he said.
"I think if the community started the conversation about how safe they are, and we spoke more about how safe we are, then there would be less pressures perhaps on stronger, harsher legislation."
Commissioner Fuller said people need to start appreciating that they are safer than ever before.
"Why the doom and gloom — why are people so scared? What are we scared of?"
"I think if we could overcome that and say 'crime's down, it's the lowest it's been in 40 years and I feel safe' perhaps police don't need new powers."
The Commissioner did say however that the terrorism powers, which allow police to pre-emptively target terrorists with intentional kill shots, are needed to keep up with the realities of modern crime.
"When you talk about modern policing around organised crime and terrorism — they are new types of crimes," he said.
"It is very difficult to police new crimes with old laws … new types of crimes will often require new legislation for us to address it effectively."
'Maximum power with minimal accountability'
However, Commissioner Fuller was sharply criticised by the NSW Council for Civil Liberties president Stephen Blanks, who told the forum the recent bolstering of anti-terrorism powers appeared to be the result of lobbying by the police force.
"NSW has engaged in a law-and-order auction where the tougher the law, the better," he said.
"The way in which these laws have been enacted look as though they've been pushed by a police agenda trying to get maximum power with minimal accountability."
The new "lethal force" powers passed State Parliament less than a month after they were announced by Premier Gladys Berejiklian.
But Commissioner Fuller defended the process, telling the forum the new laws had the same parliamentary oversight as other new legislation.
"Legislation may get rushed through but it still has to go through both sides of Parliament, there's a whole process that needs to occur," he said.
"Yes, sometimes police want new legislation for issues but our voice at the table is no greater than anyone else."
The NSW coroner recommended police be given greater legal protection to shoot terrorist suspects dead when he handed down his findings into the Lindt Cafe siege earlier this year.
Source: ABC News
Date: Tuesday, 22 August 2017
Venue: UTS Building 5C, Level 1, Room 005. (Building 5C can be found further down Quay St, past the UTS Library)
NSW CCL President, Stephen Blanks contributed as a panelist to Speaker Series II: Protecting our Rights hosted by the UTS LSS and Corrs Chambers Westgarth.
The discussion, is set to focus on the protections of our rights in Australia. In particular, the panel will explain how our rights are currently protected, as well as present arguments for and against a Charter or Bill of Rights. Discussion will conclude with conceptualisations of the future. Specifically, if there are issues or legal matters that may have different outcomes under a binding Bill or Charter of Rights.
- Mr. Stephen Blanks
- Mr. Harry Hobbs (PhD Candidate & Lionel Murphy Postgraduate Scholar)
- Ms. Hwei-See Kay
Australians might be surprised to know there is a new Bill proposing an Australian Bill of Rights before the Australian Parliament.
There has not been much stomach for active campaigning in support of a national Bill of Rights in Australia since the bitter and crushing disappointment of the Rudd Government’s failure in 2010 to act on the recommendation of the National Human Rights Consultation Committee (the Brennan Report) for a federal human rights act. This surprising and weak betrayal of community expectations, following a year of extensive consultation and clear public support for a human rights act - and the subsequent loss of the 2013 election to the Abbott Government – put a long term dampener on the enthusiasm of all but the most determined of campaigners.
Australia remains alone among western democratic states in not having a human rights act or charter.
In recent years the Australian Parliament has enacted numerous new laws - and the Australian Government has enacted numerous new policies and programs - which unwarrantedly infringe individual liberties and rights and are in clear breach of our international human rights obligations.
Without the protections afforded by a Bill of Rights, strong and persistent opposition to these laws from many sections of the community has been powerless to stop their passage. Professor Gillian Triggs, the recently retired President of the Australian Human Rights Commission, repeatedly warned of the dangerous consequences for the rights and liberties of Australians of this situation – and was outrageously vilified by the Government and sections of the media for so doing.
So it is with tentative optimism that NSWCCL applauds the introduction of the Australian Bill of Rights Bill 2017 into the Federal Parliament by the independent MP Andrew Wilkie - with the support of independent MP Cathy McGowan.
It is a wide ranging Bill which Wilkie says is closely modelled on an earlier private member’s Bill introduced in 2001 by Dr Theophanous which did not get past a first reading. (2R speech 14/8/17)
Hundreds of submissions were made to the Senate Legal and Constitutional Affairs Legislation Committee on the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017.
You can read our submission here.
CCL views the Bill as dangerous, undemocratic and unfair. In brief we argued that the Bill:
- creates a class of permanent residents who are denied recognition as citizens
- requires new citizens to accept arbitrarily defined "Australian values"
- confers unwarranted extraordinary powers on the Minister for Immigration
- requires that applicants for citizenship have a knowledge of English which is set at an unfairly high level.
The Senate committee is due to report on 4 September 2017.
NSWCCL PUBLIC STATEMENT
The NSWCCL calls for the withdrawal of this extraordinary Bill. It is unwarranted, unnecessary legislation.
It is a harsh response in a context which calls for more responsible, compassionate and sustainable remedies to the serious policy failures of Governments which have left so many people homeless in Sydney.
The existing powers that NSW Police have under LEPRA (Part 14) and ) and the Crown Lands Act (Sections 156, 157) are more than adequate to remove persons who present any danger or threat to the public or are engaged in any unlawful activity in Martin Place.
Homeless people sleeping in Martin Place- or other public place- are not acting unlawfully.
This Bill effectively criminalises homelessness. It is a retrograde step, contrary to the move to abolish the crime of vagrancy and other victimless crimes more than 30 years ago.
Homeless people may be causing some level of inconvenience to the public, but some level of inconvenience may be the cost we have to pay for the major homeless problem we have in Sydney.
Inconvenience can be managed more compassionately and responsibly than by rushing to force homeless people out of Martin Place when many will, of necessity, occupy other public space in inner Sydney.
NSWCCL urges the Government to abandon this rash Bill and re-engage with the City of Sydney Council and other agencies to find more sustainable solutions. Homeless people should not be forcibly removed from public spaces until alternative ongoing accommodation is available for them.
The reallocation of the purpose built Sirius building to the current inner city homeless is one obvious part of the longer term solution that could be implemented quickly.
NSW Council for Civil Liberties calls for stronger protection of the right to political protest. The recent media statements by the Premier Gladys Berejiklian, Pru Goward and Tony Abbott concerning the homeless people camping in Martin Place highlight the need to protect our right to political protest.
Protection of civil liberties is weak in Australia. The Constitution contains a weak protection of the right to political protest. In NSW we do not have the protection of a bill of rights.
Peaceful political protest often involves disruption of public spaces. If we view the right to peaceful political protest as worth upholding, the community may need to tolerate some inconvenience.
Public statements by politicians to the effect that the police should be required to dismantle peaceful political protests occurring in public spaces ignore the fact that the right to political protest is a fundamental right in a mature democracy.
Now is the time to revisit the need for a bill of rights – visit Human Rights for NSW
Submission to the Legal and Constitutional Committee of the Senate concerning the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 - July 2017
The Bill would create a class of permanent residents who are denied recognition as citizens. This cannot be to the benefit of Australian society. The extended powers create a high risk that they will, by error or design, be subject to misuse and the creation of unfairness. No Minister should have such unfettered powers.
Civil penalties for non-consensual sharing of intimate images -“revenge porn”
In a recent submission to the Department of Communication & the Arts, NSWCCL made specific recommendations to a proposed Commonwealth government prohibition on non-consensual sharing of intimate images, colloquially referred to as “revenge porn”. We also addressed the question of appropriate civil penalties to deter, prevent and mitigate harm to victims, by individuals and content hosts, who breach the prohibition.
NSWCCL considers the non-consensual sharing of intimate images to be a privacy issue. It occurs when experiences, deemed private, are distributed without consent to the public, the victim’s family, work mates, employer or friends. Nonetheless, privacy requires a balance of interests, therefore defences of public interest and consent should be available to the perpetrator.
The prohibition proposed by the government would be modelled on the Enhancing Online Safety for Children Act 2015 (Cth) (EOSC Act). NSWCCL agrees that many of the provisions in the EOSC Act are suitable to deal with the non-consensual sharing of intimate images. The EOSC Act establishes the role for a Commissioner to oversee a cooperative social media service scheme. The Commissioner is also authorised to approach the Federal Court for civil penalties, enforceable undertakings and injunctions. A great benefit to complainants is that once a complaint proceeds, the Commissioner’s office takes over the process for removal of the material. NSWCCL agrees that the Commissioner should have a similar role to deal with non-consensually shared intimate images.Read more
President of NSWCCL, Stephen Blanks discusses the amended Terrorism (Police Powers) Act with FBi Radio and provides the following comments:
"Well, what the legislation enables is the Commissioner, or if he's not available, the Assistant Police Commissioner to declare an event to be a terrorist event or a likely terrorist event. So it doesn't actually have to be a terrorist event, just likely -- and in that situation police are authorised to use lethal force to bring the event to an end, regardless. And what that means in practice is that they can sue lethal force even if there is no imminent threat of danger to life or serious injury."
"The recommendation came out of the Coroner's report and the problem that the Coroner identified was that the police were confused about the extent of the power they had. and instead of treating it as a situation where the police lawyers needed better training or police needed access to better legal advice, the recommendation was to change the law to enable the police to use lethal force in circumstances where the seriousness of the event might not justify it. What we've ended up with is very unsatisfactory and that it got rushed through Parliament in just a day."
"Effectively the religious or political motivation, or imputed political or religious motivation, of the event is going to be the criteria for using lethal force. Now that is just entirely inappropriate. You can just see the way in which if this power is used without a great deal of care, it is going to cause significant community opposition if somebody gets killed."
"The unintended consequences are that somebody could be killed by police where there has been no imminent threat to life or serious injury, and the use of lethal force, objectively is unnecessary, in order to resolve the situation. I'm not sure that's an unintended consequence, that might actually be the intended consequence or there's no other reason for bringing in the legislation. That is what it's going to enable, and then the police will be legally unaccountable for their actions."
Hear the entire Radio Show: NSW Police Powers, The Vatican and Sydney Fire Safety
Source: FBi Radio