NSWCCL News

Turnbull defends proposed anti-terrorism laws as constitutional

The NSW Council of Civil Liberties president, Stephen Blanks, told Guardian Australia that plot was a “worst-case example” and police hadn’t needed the 14-day period, showing there was no need for “draconian” new laws.

“We don’t think detention without charge ought to be permitted at all … It’s just inappropriate in a free society for police to be able to detain people without charge,” he said.

Blanks questioned if hearings to extend detention would be conducted in secret and how detained persons, even if they were represented, could convince a judge to let them go. “It’s a misuse of the position of the courts to involve them in detaining people without due legal process,” he said.

Earlier Turnbull said the government worked with the AFP, state counterparts and legal advisers to “fine-tune and improve our national security laws”.

“Our primary, overwhelming responsibility is to keep Australians safe. We are relentless in that and we will always continue to improve and enhance the tools our agencies have to keep us safe.”

The Australian governments will also discuss improving access to existing databases of drivers’ licences to give federal police and security agencies national facial biometric matching capability.

Turnbull said about half of Australians already have their photo in a federal government system, but bringing together driver’s licence photos would help “build up a national system that will enable us … particularly to be able to identify people that are suspected of, or involved in, terrorist activities”.

Article: Turnbull defends proposed anti-terrorism laws as constitutional

Source: The Guardian

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National Integrity Commission -committee report equivocates

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 

VP NSWCCL

 

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Why a Blackberry Will No Longer be a Criminal's Best Friend

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Councils ‘spying’ on residents with tracking devices on bins

A small device has been fitted on bins around Sydney to see what's being thrown out but critics fear where personal information could end up.

NSWCCL Stephen Blanks contributed to this story with concern for what happens to the information collected by these devices.

"My concern is that Council is not being transparent about what is being done with the data that is being collected. The data could be valuable to data and could be some thing that Google, for example is prepared to pay for. "

David Vaile from Australian Privacy Foundation also questions the future use of data gathered. "The big question is, what else can they do with it later on? Can they tie it with other information and discriminate against you or maybe discriminate against your neighbourhood?"

Video: Sydney Councils ‘spying’ on residents with tracking devices on bins

Source: Channel 7 News

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Panel Discussion: Bending the Rule of Law

NSWCCL President, Stephen Blanks, discussed 'Bending the Rule of Law' at the first session of the Thought Leadership Program 2017 hosted and run by The Law Society of New South Wales.

Stephen was accompanied by NSW Police Commissioner Mick Fuller, UNSW Gordon Samuels Professor of Law and Social Theory Professor Martin Krygier and Barrister Peggy Dwyer as they discuss security, the rule of law and civil liberties.

For more information on upcoming discussions, visit the Law Society of NSW Thought Leadership page.

Photos below credited to: Jason McCormack 

Stephen Blanks, Mick Fuller and Tamara Kamien

(Left to right) NSWCCL President Stephen Blanks, NSW Police Commissioner Mick Fuller and Thought Leadership Program Manager Tamara Kamien

 

Stephen Blanks

NSWCCL President Stephen Blanks

 

Mick Fuller, Martin Krygier, Peggy Dwyer, Stephen Blanks, and Pauline Wright

(Left to right) NSW Police Commissioner Mick Fuller, UNSW Professor Martin Krygier, Barrister Peggy Dwyer, NSWCCL President Stephen Blanks and Law Society President and NSWCCL VP Pauline Wright

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NSWCCL Calls on Commonwealth Government to Reform the Federal Custody Notification Service

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 [2013] 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.

 

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NSW Police say it is public fear, not police agenda behind new terrorism powers

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.

Article: NSW Police say it is public fear, not police agenda behind new terrorism powers

Source: ABC News

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UTS Law Students' Society Speaker Series: Protecting Our Rights

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.

Speakers:

  • Mr. Stephen Blanks
  • Mr. Harry Hobbs (PhD Candidate & Lionel Murphy Postgraduate Scholar)
Moderator: 
  • Ms. Hwei-See Kay
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National human rights bill resurfaces in Australian Parliament!

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)

 

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Australian Citizenship Changes

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.

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