Update: The advisory report on the provisions of the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 was published on Thursday of last week. Read our statement here.

Read our submission to the inquiry here.
Read the final report from the inquiry here. (Link no longer available.)

The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the National Anti-Corruption Commission Legislation Committee's inquiry into the provisions of the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, which seek to establish the National Anti-Corruption Commission (NACC).

NSWCCL has long advocated for the urgent need for a strong national anti-corruption body and has engaged with the various proposals for such a body over the last decade. In doing so we have built on our close observation of the NSW ICAC and engagement with numbers of reviews of that body; as well as various proposals for a national-anti-corruption body over the last decade.

NSW Labor maintained its support for harsh NSW anti-protest laws at its state conference last weekend, disappointing a broad coalition of civil liberties and environmental groups.

A motion by the Australian Services Union to scrap the laws was defeated by a majority of conference delegates. If it had passed, Labor would have taken a policy to repeal the laws to the state election in March 2023.

A plan to roll out facial recognition technology in every pub and club in New South Wales has been criticised by the Greens, who say the “invasive” measure is an attempt to avoid further crackdowns on poker machines.

The Australian Hotels Association NSW and ClubsNSW say they are developing a state-of-the-art system to be rolled out across all clubs and hotels next year to keep people who have self-imposed bans away from poker machines.

Everyone in the gaming area will have their face scanned and the images will be cross-checked with people who have signed up for the self-exclusion system. 

The NSW Council for Civil Liberties (NSWCCL) is grateful for the opportunity to make a submission to the Committee's Inquiry into the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No.2].

1. NSWCCL supports laws that strengthen Australia’s mitigation efforts as a crucial step towards protecting human rights from the impacts of climate change.
2. We believe the Bill fills an important gap in Australia’s climate change framework which currently leaves the Commonwealth unable to properly manage the development of emissions intensive activities. By giving the Minister the power to ensure further development of such activities occurs in line with a carbon budget, the Bill provides a way towards ensuring Australia’s newly legislated emissions target is achievable.
3. While we welcome the Bill as an improvement on the current state of affairs, this submission contains six recommendations which we believe will further its aims.

On 16 October 2022, a motion was put to the floor of the Labor Conference by the Australian Services Union which called for the Labor party to ‘scrap the NSW government’s anti-protest laws if they win government next year.

It is troubling that the NSW Police Minister, Paul Toole has not ruled out expanding the use of facial recognition technology currently deployed by NSW Police to include the practice of predictive policing. In a recent NSW Parliament budget estimates hearing Minister Toole said “The NSW Police Force continually reviews new technology to assist police in their role, and will consider expanding the use of technology, as required”.

There are serious fears the privacy of everyday Australians could be in jeopardy under a data-sharing deal with the United States.

An intelligence treaty between the two nations will soon allow law enforcement agencies to share information. The agreement will give officers rapid access to US-hosted data to fight terrorism, child exploitation and human trafficking.

But NSW Council for Civil Liberties President, Josh Pallas said the agreement would gravely undermine privacy.

Today, two women from the flood and fire-impacted NSW mid-north coast launched a Constitutional challenge to new anti-protest laws to preserve the democratic freedoms of speech and assembly in NSW.  Represented by the Environmental Defenders Office, the Constitutional challenge has been filed in the NSW Supreme Court.

Dominique and Helen, the two wildlife carers and members of the "Knitting Nannas" group at the centre of this case will ask the Supreme Court to declare new sections of the Crimes Act 1900 unconstitutional as they impermissibly burden the implied freedom of political communication of the NSW community. Both Dominique and Helen have been at the frontline of Australian climate impacts, experiencing the devastation, trauma and loss from drought, fires and floods in the last four years alone. 

For more information, read the full article.

Pressure continues to build on the NSW Labor Parliamentary team in the lead up to NSW Labor Conforence this weekend. Some of the greatest gains in history have been delivered through large-scale protest movements which would not be lawful under the current NSW Government anti-protest laws; the decriminalisation of homosexuality, women’s right to vote and many others. This, no doubt, is weighing heavily on the minds of many community minded Labor MPs who have actively participated in protest actions over recents years.

NSWCCL President, Josh Pallas, spoke to journalist Paul Gregoire in the lead up to the NSW Labor State Conference about the campaign to overturn the draconian anti-protest laws currently in place in New South Wales.

The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to be involved in the Joint Standing Committee on Electoral Matters’ Inquiry into the 2022 federal election and related matters.

Australia has a long legacy for being a strong democracy since colonisation, but reform is needed to ensure that this trajectory is maintained.

The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the United Nations Committee against Torture (CAT) in regard to the Sixth Periodic Report of Australia.

Under Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) the CAT is mandated to examine reports on the measures that State parties are taking to implement the provisions of the Convention. The CAT has a dual mandate:

1. To undertake confidential inquiries when reliable information is received with well-
   founded indication that torture is being systemically practiced in a State party is received
   (Article 20, the Convention).
2. To consider individual complaints in relation to the implementation of the Convention
   (Article 22, the Convention).

Lowy Institue welcomes you to join them for a special address by the President of Ukraine Volodymyr Zelenskyy.

President Zelenskyy will address the Lowy Institute from Ukraine via live video link. Afterwards, he will speak in conversation with Executive Director Michael Fulliloveand take audience questions.

The address is available to watch online via Youtube on Thursday 6 October at 7:00pm AEDT.

Link: Online video via YouTube

The UN Subcommittee on the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) will be visiting Australia for 12 days from 16 Oct 2022 – 27 Oct 2022.

Last month, NSWCCL, Josh Pallas spoke to regional radio in Coffs Harbour and Dubbo about the Perrottet Government's response to the 2020 ice inquiry.

NSWCCL has long called for stronger legislation in relation to the collection, use and retention of the personal information of Australians. We welcome the comments of the Attorney General Mark Dreyfus, referring to the Optus data breach, that every corporation should only be collecting the minimum amount of data necessary for the relevant purpose.[1]

The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a joint submission to The Hon Virginia Bell AC in response to the Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments (link no longer available). 

NSWCCL strongly condemns the former Prime Minister Morrison's practice of secret ministerial appointments and welcome the seriousness with which Prime Minister Albanese is treating this issue. We applauded Prime Minister Albanese's announcement upon releasing the Solicitor General’s advice that his department was taking immediate steps to implement a practice of publishing in the Commonwealth Gazette future appointments of ministers to administer departments.

Announcing our incredible shortlisted journalists for the 2022 Excellence in Civil Liberties Journalism Awards!

Update 8 November 2022: The findings of the NSW Law Reform Commission into the inquiry of discrete parts of the Bail Act 2013 (NSW) have supported the NSWCCL submission concluding that no changes should be made to the Bail Act 2013 (NSW) in relation to the issues raised by the terms of reference. 

Bail laws exist to keep victims and the community safe until criminal proceedings are finalised, while safeguarding the presumption of innocence and general right to be at liberty until a matter is determined by the courts.

NSWCCL's submission supports this. Given their significant potential to limit individual liberty, changes to the Bail Act must be justified by a clear and compelling policy rationale. Any such changes must be supported by appropriate evidence. 

Concerns by the majority of stakeholders were expressed that the contemplated changes would likely:

• unnecessarily capture conduct that does not constitute a high degree of criminality
• increase the rate of bail refusals, including for people who may not receive a custodial penalty if found guilty
• lead to further growth in an already significant remand population, which would adversely affect individuals and the community
• frustrate government initiatives to address the overrepresentation of Aboriginal people in custody
• add further complexity to an already intricate statutory framework, and
• increase court workloads and backlogs by adding to the complexity of bail applications.

The Bail Act endeavours to strike a balance between community safety, the presumption of innocence and the general right to be at liberty.

Show Cause Requirement

In our submission, we identified inherent difficulties with the show cause requirement. NSWCCL submitted that show cause should be reserved for the most serious and high risk offences and the report reached a similar conclusion. The report identified inherent difficulties with the show cause requirement. 

This included criticisms that it:
· is unnecessary, as the unacceptable risk test is sufficient to address risks, and
· contributes to the over-incarceration of people who have not been convicted of any
crime.

Building on the second point, we described the show cause requirement as akin to a presumption against bail. The Aboriginal Legal Service argued that show cause “reverses the onus of proof, encroaches on the presumption of innocence and can lead to detention for allegations of relatively minor offending”.

The NSW Police Force (NSWPF) argued that the “inherent risks” associated with firearms offences warrants making further categories of firearms offences subject to the show cause requirement. It considered the existing inclusion of certain firearms offences as show cause offences demonstrated Parliament’s awareness of these risks.

However we argued and the report agreed that by selecting only certain categories of firearms offences for inclusion in section 16B, Parliament signalled it regarded them as more serious and suggestive of risk than other firearms offences. That is, the show cause requirement already covers the firearms offences considered to be the most serious and to involve the greatest degree of risk. As the Bar Association argued, the “gravamen of serious firearms offending is already captured by section 16B(1)(d)”.

The report supported with our submission that we do not support the inclusion of other firearms offences. The inquiry found "Certainly we did not receive any evidence, in the form of statistics or caselaw, demonstrating any need for this expansion."

The impact of remand on individuals and the community

Remand can significantly affect the lives of people subjected to it. This is particularly the case for vulnerable members of the community who are disproportionately represented in the criminal justice system. Remand can negatively
affect mental health, with higher rates of suicide among the remand population compared with the sentenced prison population. 

NSWCCL and the Corrective Services NSW (CSNSW) noted in our submissions that even a short time in custody can have a detrimental impact on the individual. It can include loss of employment, loss of accommodation, reduced access to services and breakdown of relationships. It also increases the likelihood of recidivism. It is particularly concerning if the person being held on remand is not likely to receive a custodial sentence and is therefore being exposed to the prison system only through remand. 

Criminal Associations

The committee concluded that they were are not persuaded that the Bail Act should include further guidance on the meaning or legislative definition of “criminal associations”. The Bar Association supported our position to oppose the
introduction of a legislative definition. If any definition was introduced, we believe it should contain safeguards to specify that simply associating with someone who has a criminal history is not sufficient to establish a person has criminal associations.

Recommendations

3. Show cause and firearms offences
Recommendation 3.1: Expanding show cause to include further firearms offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further firearms offences.

Recommendation 3.2: Unlawful private possession of a pistol or prohibited firearm
Section 16B(1)(d)(ii) of the Bail Act 2013 (NSW) should not be amended to include the unlawful possession of a pistol or prohibited firearm in a private place as a show cause offence.

Recommendation 3.3: Possession in breach of a firearms prohibition order
Section 16B of the Bail Act 2013 (NSW) should not be amended to include the possession of a pistol or prohibited firearm in breach of a firearms prohibition order as a show cause offence.

4. Show cause and criminal association offences
Recommendation 4.1: Expanding show cause to further criminal association offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further offences relating to criminal associations.

5. Show cause and criminal association offences
Recommendation 5.1: Legislative guidance on “criminal associations”
The Bail Act 2013 (NSW) should not be amended to include further legislative guidance on the meaning of “criminal associations”.

6. Other issues raised in this review
Recommendation 6.1: Adding other orders to section 18(1)(f) of the Bail Act 2013 (NSW)
Firearm prohibition orders and serious crime prevention orders should not be added to the list of orders in section 18(1)(f) of the Bail Act 2013 (NSW).

The full report is available here.

The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to be involved in the review of discrete parts of the Bail Act 2013 (NSW) (Bail Act) conducted by the NSW Law Reform Commission.

The terms of reference (TOR) for this review are as follows:

1. Whether the existing list of firearms offences treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.
2. Whether further legislative guidance should be provided on the meaning of ‘criminal associations’ under the Bail Act 2013 (NSW).
3. Whether the list of offences relating to criminal associations that are treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.

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.