The report by the Independent National Security Legislation Monitor –Roger Gyles QC - on the controversial section 35P provisions of the ASIO Act was tabled in the Senate on 2^nd February.   These provisions created draconian offences with penalties of 5 and 10 years imprisonment for disclosure by any person of any  information relating to ASIO ‘Special Intelligence Operations’ (SIO) at any time.  

NSWCCL, along with the other councils for civil liberties, strongly opposed both the SIO regime and these provisions for their chilling effect on the media and on reasonable scrutiny of ASIO.  The controversy around these offences forced the Prime Minister to ask the INSLM to review their impact on journalists.  

The report is thorough and suggests the INSLM gave proper and serious consideration to the informed criticisms of the SIO regime and the obnoxious disclosure offences.   His findings on the offences are consistent with our views. His recommendations remedy some of the worst aspects of the offences – but sadly fall short of repealing them.

The Government has said it will implement the INSLM’s recommendations in full. 

The highly controversial Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was introduced into Parliament in June 2015. It will come back to the Australian Parliament later today in a significantly amended form following the Government’s acceptance of recommendations from the Parliamentary Joint Intelligence and Security committee (PJCIS).  It is likely to be dealt with quickly and passed this week.

NSWCCL recognises that the amended Bill will be a significantly improved and far less dangerous version.  We welcome these changes, but remain disturbed by, and opposed to, expanding citizenship-stripping laws.  Australian citizens who are alleged to have engaged in terrorist related activities should be charged, taken to trial and, if found guilty, punished and imprisoned in Australia. To expel them from the polis is to place the person outside the reach of the State’s legal system. It will not make us safer. 

The National Health and Medical Research Council has published draft ethical guidelines on the use of assisted reproduction technology in clinical practice and research. 

Responding to an invitation to comment, the NSWCCL has made a submission that supports these draft guidelines, applauding the NHMRC for their support for the autonomy of all involved and their rights to detailed, accurate, contemporary and relevant information concerning the procedures, legal consequences and otherwise of their decisions.

Some questions for which further comment is requested of the NHMRC include, (1) Payment for the risks and labour involved in egg donation, (2) Sex selection on non-medical grounds, and (3) the potential establishment of an Australian egg bank. 

Read the full submission here

If enacted, the Bill would amend the Australian Citizenship Act 2007 (Cth) (“the Act”) in an untested and radical way. It presents a significant threat to the separation of powers and the rule of law. Indeed, the Bill is founded on a significant reconceptualisation of the relationship between the State and the citizen.

View submission

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.

Read the full submission here. 

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. 

Read NSWCCL's full submission here. 

The combined councils for civil liberties across Australia (New South Wales Council for Civil Liberties, Liberty Victoria, Queensland Council for Civil Liberties, South Australia Council for Civil Liberties, Australian Council for Civil Liberties) have made a joint submission to the Acting Independent National Security Legislation Monitor's (INSLM's) inquiry into the impact on journalists of the operation of section 35P of the ASIO Act 1979, which contains two offences that criminalise disclosures of information relating to a ‘special intelligence operation’. 

The main civil liberties issues at stake in relation to the s35P are freedom of speech and freedom of the press, which should never be curtailed in democracy.

While understanding the justification of security and intelligence services’ powers for the protection of national security, the combined CCLs have raised serious concerns over the new national security and counter-terrorism legislation which incorporates a number of new extraordinary provisions.

CCLs raise the cumulative impact of the extended legislation on the work of journalists. Even though a warrant is now required for access to a journalist’s metadata, the CCLs condemn the very real possibility of access to this data which can readily reveal the identity of a source, without informing the journalist his metadata is being released to ASIO.

The CCLs urge the Government to protect a free and robust press in Australia by repealing the concept of the SIO regime and the s35P offences considered as unnecessary, draconian and dangerous for Australia’s democratic well-being.

Read the submission. 

NSWCCL recently made a submission to the Legal and Constitutional Affairs Legislation Committee's inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015. The submission condemns the Bill in its current form since the collection and retention of biometric data poses an unnecessary and disproportionate threat to the privacy of all non-citizens and Australian citizens.

While understanding the justification for the collection and use of biometric data, NSWCCL is concerned that the Bill does not contain essential safeguards to limit the collection and retention of additional biometric data such as fingerprints, handprints, measurement of height and weight, an audio or video recording and an iris scan.

Furthermore NSWCCL is concerned that the Bill in its current form may disproportionately affect minors, incapable persons and asylum seekers because it removes the requirement for consent and presence of a parent, guardian or independent person for and during the collection of such biometric data. 

Thus, NSWCCL urges Parliament to conduct a privacy impact assessment and relevant safeguards be implemented to ensure that the amendment does not allow for the mass collection and retention of biometric data.

Read the full submission here. 

NSW Council for Civil Liberties has formally endorsed two separate Shadow Reports for the United Nations' 2015 Universal Periodic Review of Australia: firstly, a Joint NGO Submission together with a wide range of NGOs across Australia; and secondly, a submission specifically relating to Surveillance in Australia together with international and national surveillance groups. 

Last year civil liberties and human rights groups resisted, with limited success, the worst elements of the veritable tsunami of new counter-terrorism laws the Abbot Government brought in swift succession to the Parliament.  Now we are fast approaching a decision point in the highly significant and contentious debate as to whether the Australian Parliament will legislate the mandatory collection and retention of mass telecommunications data for the bulk of the population to enable retrospective access by authorities.

It would be a major negative step for a democratic system. It will be a major intrusion on every citizen’s right to privacy - including those not suspected of any unlawful activity. This will have major flow-on implications for other freedoms and democratic values. In particular, it will undermine a robust and free press and constrain legitimate whistle-blowers by removing any confidentiality from all phone and internet communications.  

The combined CCLS consider it to be a step too far. We strongly oppose the policy concept and urge the Parliament to reject it.