Welcome to the October 2017 issue of the NSWCCL Newsletter
In this issue:
National issues | Marriage Equality Postal Survey | Counter-terrorism laws back on the agenda | National Integrity Commission - Senate Committee Equivocates | An Australian Human Rights Charter – worth trying again? | Reform to Federal Custody Notification Service | Australian citizenship changes |
NSW Issues | Martin Place – cruel and unnecessary response | Euthanasia – NSW VAD Bill returns to Parliament
News from CCL | Submissions | Make a Difference: Join an Action Group
Vote YES! Marriage Equality Postal Survey
The avalanche of counter-terrorism and national security legislation had abated this year – possibly because of the difficulty of identifying new laws given our uniquely extensive body of existing C-T law.
However, the lull has ended and a new flurry is upon us.
The October COAG meeting will endorse a nationally consistent C-T framework. It will include controversial new offences and powers – largely modelled on either the Commonwealth or the NSW high risk terrorist laws passed in 2016. NSWCCL strongly opposed these laws at the time – particularly the extension of preventative detention orders to cover persons as young as 14 and extending the period of this detention to 14 days in the NSW Act; and the introduction of post- sentence, continuing detention of up to 5 years for prisoners convicted of a serious terrorist offence and judged to be at risk of re-offending if released, in the Commonwealth Act.
There will also be new and extended laws in the COAG package.
The Prime Minister has called for states to hand over all drivers’ licence photos for a national facial recognition database for use in counter-terrorism surveillance, thus dramatically expanding the surveillance capacity of ASIO and the AFP over most Australian residents.
The PM also announced his intention of creating a new C-T offence of possessing instructional terrorist material and engaging in terrorism hoaxes...which one would have thought are adequately covered in existing law.
The proposed NSW laws are indeed tougher than those in the controversial High Risk Terrorist Offenders Act 2016. The Commonwealth Act only applies to high risk prisoners convicted of a serious terrorist offence.
NSWCCL President Stephen Blanks has given multiple public statements to the media in response to this pre-COAG flurry of announcements re-iterating our concerns and opposition to these proposals: http://www.9news.com.au/national/2017/10/04/13/22/beware-perils-of-expanding-facial-recognition-powers-in-australia-watchdog-warns
Sadly, there is little support for such civil liberties concerns among our political leaders.
We can, however, be confident that post the current COAG meeting disproportionate and deeply disturbing C-T laws at both state and federal level will again be a central concern for civil liberties bodies across Australia.
A National Integrity Commission - Senate Committee equivocates
There is widespread support for a national body to expose and deter serious and systemic corruption in public administration including the electoral process, parliament and politicians and their staff.
As reported in the last newsletter, 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 increasingly urgent issue.
At the time, there was some optimism that decisive action by the Parliament might be possible. Unfortunately, the recently released Committee’s recommendations are equivocal and - from NSWCCL's point of view - disappointing.
Noting the number of previous inquiries into the issue, NSWCCL argued that the time for a decisive recommendation for immediate action on a national body had come; otherwise the most likely outcome would again be a loss of impetus.
Sadly, this argument did not prevail. The majority report (Government and ALP members) recommended a transitional approach with priority being given to “strengthening the national integrity framework in order to make it more coherent, comprehensible and accessible.” (Recommendation 1)
The three cross benchers on the committee (Senators Rhiannon Greens, Kakoschke-Moore NXP and Hinch) did however support the immediate action on a national body.
Thankfully all is not lost. The Committee did not actually reject the strong arguments supporting an overarching anti-corruption body. In fact, it found the evidence 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).
Accordingly, it also recommended: “the Commonwealth government gives careful consideration to establishing a Commonwealth agency with broad scope and jurisdiction to address integrity and corruption matters.” (Recommendation 2)
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?
We do not yet have Government or Labor Party responses to the Committee report. However, it is unlikely that the Government will decide to go beyond the Committee's recommendations and quite possible that it will ignore recommendation 2 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.
An Australian Human Rights Charter - worth trying again?
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. This has been a significant factor in allowing the proliferation of national laws which seriously breach human rights and liberties – especially in counter-terrorism and refugee/border security laws.
But there are stirrings of renewed interest and tentative hope that the ALP in its quest for victory at the next federal election might be moved to champion an Australian human rights charter.
There was an interesting moment in the Parliament in August when independents Andrew Wilkie and Cathy McGowan were allowed to introduce The Australian Bill of Rights Bill 2017 into the Federal Parliament. It is a strong bill and at the time NSWCCL speculated on the possibility that the unusual vulnerability of the Government in the House of Representatives might give these two members more influence than would normally be the case. That remains to be seen.
There is some activity at the state level. So far only the ACT and Victoria have human rights charters, but Queensland appears to be well on the way with a formal commitment by the Premier in late 2016 to introduce a Human Rights Act. Given the federal stalemate, NSWCCL has joined with other bodies to try and get a NSW Charter of Rights Act back on the State’s political agenda. There is some hope that NSW Labor can be persuaded to follow Queensland and go to the next state election with a commitment to introduce a bill.
The need is great and given the context seems less hostile at a national level, NSWCCL will be elevating the campaign for an Australian Human Rights Charter. We will be discussing this at the October AGM and seeking a formal agreement that this will be one of CCL’s highest active priorities.
In a timely contribution to a renewed campaign, George Williams and Daniel Reynolds launched the 4th edition of A Charter of Human Rights for Australia at Gleebooks in September. This is an invaluable analysis of the history, the law, and the arguments in support of a national charter. Those of us at the packed event were treated to an intensely stimulating and entertaining Q&A between George Williams and Michael Kirby - two deeply informed experts and long-time campaigners for a national charter. It was also a very positive discussion providing grounds for an optimistic approach to a renewed campaign.
After all - how long can even our hostile politicians leave Australia so isolated on this fundamental issue?
Reform to 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.
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 a new Bill designed to reform the Federal Custody Notification Service which fails to provide Aboriginal people in custody with key procedural rights. 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.
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:
It now appears that the Government will need to go back to the drawing board with this legislation, due to strong community opposition and the opposition of Nick Xenophon. Given the Parliamentary timetable, it is unlikely that this issue will be settled this year.
Martin Place - cruel and unnecessary response
NSW CCL strongly opposed the Government’s gratuitous action against the homeless people in Martin Place in August. Premier Berejiklian and Minister Goward seemed more motivated by hostility to the Lord Mayor of Sydney than protecting the public safety of Sydney siders, let alone caring for the well-being of the homeless persons to be evicted.
The Sydney Public Reserves (Public Safety) Act 2017, which was forced through Parliament without public consultation or time to properly consider the Bill, was a harsh response when what was called for were more responsible, compassionate and sustainable remedies to the serious policy failures of governments which have resulted in so many people homeless in Sydney.
These new powers to move people on were not needed. The existing powers that NSW Police had under LEPRA (Part 14) and the Crown Lands Act (Sections 156, 157) were 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.
We added our voice to the many that attempted to block this legislation and distributed a public statement to key politicians. The Bill was opposed by the ALP opposition, the Greens and key independents including Alex Greenwich.
Terry O’Gorman Speaking Event
2017 Paul Byrne SC Memorial Lecture: 15 Years After - Terrorist Laws and Civil Liberties: Is the Balance Right or Wrong?
Law Society Thought Leadership Program
Human Rights in Uncharted Territory
NSWCCL in the Media
NSWCCL supportive of NSW renewed push for abortion criminalisation
(12/05/2017 - The Guardian)
Schapelle's home, but 170 Australians are in jail or facing charges overseas for drug crimes
Border Advice for Muslims Alarms Australian Official - but It Came From His Department
NSW Police say it is public fear, not police agenda behind new terrorism powers
Drive with Richard Glover in response to 'World's number 1 anti-vaxxer' Kent Heckenlively denied entry to Australia
Councils ‘spying’ on residents with tracking devices on bins
Turnbull defends proposed anti-terrorism laws as constitutional
Expanding facial recognition database in Australia not justified, watchdog warns
Civil liberties groups 'Alarmed' over National facial recognition database
NSW Premier Gladys Berejiklian unveils plan to introduce 'nation's toughest terror laws'
NSW Premier Gladys Berejiklian unveils plan to introduce 'nation's toughest terror laws'
'Nation's toughest terror laws': Berejiklian unveils 'drastic' plan
Turnbull government’s new anti-terror laws labelled ‘draconian’
Civil liberties ‘a luxury’ as premiers back Turnbull’s new anti-terror laws
Should You Be Worried About The Government’s Huge New Facial Recognition Database?
NSW CCL has been busy making submissions on a variety of subjects. Here is a list of submissions from the last few months:
If you have an interest in these areas or any areas covered by our Action Groups, and would like to contribute to our submissions, please contact us.