The NSW Parliament is this week considering two disturbing proposals for new laws creating ‘Serious Crime Prevention Orders’ and ‘Public Safety Orders’ to combat organized serious crime.
The NSW Council for Civil Liberties (NSWCCL) has major concerns about both these proposals.
The Serious Crime Prevention Orders (SCPO) regime is an extraordinary, unwarranted and dangerous proposal.
It imposes major controls on persons – including not only those who have not been charged or convicted of any criminal offence- but also persons who have been found NOT guilty or have had their convictions quashed.
The target group potentially caught up in this regime is huge and includes law abiding citizens.
The SCPO will constitute a rival criminal justice regime to the courts. It allows police to sidestep the courts for the less rigorous option of imposing open-ended control orders on specified persons. A person found not guilty can notwithstanding have strict controls on their lives imposed for 5 years.
The Organised Crime and Public Safety Bill will give police unprecedented discretionary powers to stop a person (or ‘class of persons’) from attending public events, premises or areas.
The police officer has only to be ‘satisfied’ that the person’s presence poses ‘a serious risk to public safety or security’ and that the imposition of a public safety order is ‘reasonably necessary’. The grounds for making these judgements are very broad.
This Bill comes fast on the heels of the passage of the contentious and outrageous Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 in March.
A person who contravenes these orders will be committing an offence with a penalty of up to 5 years imprisonment.
These Bills are part of an accelerating trend of disproportionate and extraordinary laws which undermine individual liberties and rights and the Rule of Law in NSW. This trend must be resisted.
NSWCCL urges the NSW Parliament to reject both these unjustified and unnecessary Bills.
For more information on this bill:
The Senate electoral reform bill passed though all stages of Parliament on 18th March after a marathon sittings – including a 28 hour non-stop Senate session. This is a very good outcome for democracy in Australia. NSWCCL supports the new electoral process and is relieved Australia does not have to go to another election under the current broken and distorted system.
Sadly the Parliament is bitterly divided on this Bill which emerged from a unanimous Joint Committee on Electoral Reform (PJCEM) report over two years ago – though the only cross-bench representative on that Committee was Nick Xenophon.
Given the huge role that then Labor Senator John Faulkner had in supporting this reform, it is particularly disappointing that the ALP felt it had to oppose the Bill with such vehemence.
As indicated in our earlier report, NSWCCL understands the very real pressure of possible adverse electoral outcomes for individual parties in any changes to electoral processes.. Nonetheless, we had hoped that Parliament could have approached this vital legislative reform with much greater consensus about underlying electoral principles.
After all no-one, bar some of the cross-benchers, argues that the current electoral process is fair or democratic. Few (we hope!) would disagree that it is better for voters to be able to directly choose who they want to vote for rather than party machines and other backroom players. Few would disagree that the Senate electoral outcomes in 2013 were not a manifestation of democratic process and did not fully reflect voters’ wishes.
The failure of our Parliament to build on the consensus achieved by the PJCEM is in significant part because of the failure of the major parties to act on the report in a timely fashion. Then unavoidable tensions emerged when the Government determined to rush the reforms through Parliament with a very short timeline for examination of the Bill and in close proximity to an election – and even more perturbing for some- a possible double dissolution.
But the bottom line is a significant reform has been achieved.
The original Bill was amended to include partial optional preferential voting below the line (as well as above the line) following a recommendation from a very short review of the Bill by the PJCEM. This amendment addressed the one concern the NSWCCL had with the proposals.
Senate electoral reform in the balance - 03/03/16
NSWCCL submission to the JCEM - 29/02/16
Despite widespread opposition from the legal profession, anti- CSG and environmental groups, farmers, unions, concerned citizens and, of course, NSWCCL the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 was forced through Parliament on Tuesday.
NSW now has another set of laws which encroach on fundamental democratic rights – in this case the right to peaceful protest. It is unnecessary and disproportionate legislation. We will maintain our opposition and campaign for its repeal.
The Labor Party and the Greens made last ditch efforts to amend the Bill to remove its most disturbing provisions. Failing that they called for the referral of the Bill to a Parliamentary Committee for proper consideration and public consultation.
Not surprisingly the Government rejected all their amendments- with the support of the Shooters Party and the Christian Democrats. The latter was a surprise given that Fred Niles had addressed the protest rally against the Bill outside Parliament House on Tuesday assuring the crowd of his strong opposition to the Bill and his support for the right to protest in a democracy like Australia.
Amendments proposed by the Shooters and Fishers party were however accepted by the Government. One of these provides for a review of the operation of the legislation by the Minister after 3 years. Much will have happened in three years in this important community debate around CSG activities. An earlier review would have been preferable to provide some insight into the impact of the legislation on legitimate protest around this issue. It would also been far preferable if the review was to be done by someone in a more independent position than the Minister – eg parliamentary committee or the Ombudsman – and that community consultation be required as part of the review.
The other amendments were minor improvements. The most significant ensures that police directions given to protesters who obstruct traffic only refer to the individuals so doing and not to the whole gathering.
A sad few days in the NSW parliament.
Read more about this bill on our website:
The outrageous Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016– better know as the ‘anti-protest’ bill- will be further debated in the NSW Legislative Council today.
This bill is a deliberate Government attack on the right to public assembly and public protest in NSW and proposes unwarranted and dangerous expansions of discretionary police powers.
This Bill is part of a systematic determination by the NSW Government to constrain effective opposition by the community to reckless CSG and other mining activities.
The Bill blatantly privileges the CSG and mining interests over the right of the community to protect the public good - in this case protection of water, agriculture and the environment - through public assembly and peaceful protest.
On Tuesday NSWCCL joined many other groups and 1000 protestors outside Parliament house to vociferously oppose this Bill. The Greens, the ALP and Fred Nile spoke against the Bill. The Law Society and the NSW Bar Council sent letters to the Government opposing the Bill. A current survey provides definitive evidence of community opposition to this Bill.
Nonetheless it appears likely that the Bill will today become law with the Shooters and Fishers Party supporting its passage.
Without the numbers to block the Bill in the Legislative Council the ALP and the Greens have proposed amendments which would remove the most obnoxious elements of the Bill.
If the Government is responsive to community rather than CSG and mining views, they should seize the opportunity provided by these amendments to retreat from this unwarranted and unwise legislation.
Dr Lesley Lynch
Read more about this bill on our website:
On Tuesday 8th March, 2016, the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 was proposed in the NSW Parliament. The aim of the bill is to "amend and clarify the laws in relation to unlawful interference with mining and other businesses", however concern has been expressed over the expansive powers given to the police, with some commentators referring to it as the 'Anti-Protest' Bill.
The New Matilda reports that these proposed 'anti-protest laws' follow on from undertakings like those made by Premier Mike Baird at a mining industry dinner in late 2014, where he said his government would “crack down” on civil disobedience and “throw the book” at people who “unlawfully enter mining sites”.
In response to the media release of the proposed amendment, President of the New South Wales Council for Civil Liberties, Stephen Blanks spoke to The New Matilda, and noted that what the state government is proposing appears to be “completely unnecessary and disproportionate” to the challenges thrown up by protests against big mining.
"If criminal activity does take place and miners or coal seam gas proponents suffer loss, then they’ve always got the ability to sue the protestors to claim damages. That should compensate them for whatever loss they’ve suffered. That’s a perfectly adequate remedy. It’s been pursued a number of times and there’s no reason to expose people to draconian fines in addition to claims for compensation,” he said.
“Where people are trespassing,” Blanks said, “the law concerning trespass is perfectly adequate to deal with any activity and there’s no need to change them.”
“Police powers which are based on their assessment of a person’s intention are very easily able to be abused and undoubtedly will be abused in many cases – police shouldn’t have those kinds of powers,” Blanks said.
With the full extent of the bill still uncertain, Blanks said that there’s a broader issue within that “police may be seen to be one-sidedly supporting mining interests where there is a legitimate protest going on, which is just going to cause the community to lose confidence in the police”.
He said that “the lessons of history are that very often protests which start this way generate a level of community attention to the issue which causes a complete change in community attitudes against the interests of miners and other commercial interests such as forestry”.
“Protest has on occasion involved civil disobedience and breaches of laws, and there are very, very many cases where the protestors – even though they’ve been engaged in illegal activities – have had widespread or overwhelming community support,” Blanks said.
Source: The New Matilda
Read More about this bill on our website:
The Australian Parliament is currently debating a Bill to reform the Senate electoral processes. It is very dismal listening: much abuse, much nonsense, and very little intelligent analysis. And all happening in a last minute dash.
Not Parliament at its best.
NSWCCL supports immediate reform of the distorted and undemocratic Senate electoral processes. We have urged this since the 2013 elections so dramatically illustrated the undemocratic processes and outcomes of this broken system. We have made a submission to the Joint Committee on Electoral Matters supporting a Bill which, if amended on one key matter, will deliver that reform.
This Bill is supported by the Government, the Greens and Senator Xenophon. The ALP and the other cross benchers vehemently oppose it. Perceived electoral self-interest appears to be the common driver- with the possible exception of the Greens.
This is such a shame. Two years ago there was constructive consensus from all major players and Xenophon on the need for immediate action and for a comprehensive reform package recommended by a unanimous parliamentary committee report. This report was scathing in its criticism of the 2013 Senate election process and urged Parliament to act quickly so that Australian electors should not have to go to another election under the current system.
Sadly both the Government and the Opposition failed to act then.
The current Bill provides a second, albeit belated, opportunity to enact these crucial reforms. It must be amended to fully implement the Committee’s 2014 recommendations to allow partial optional preferential voting below the line. This is an imperative if we are not to have an inconsistent and flawed new system.
NSWCCL understands the self-interest electoral pressures on parties especially in the context of a mooted double dissolution in an extremely overheated political environment. However, on an issue as fundamental as the right of electors to be able to choose who they vote for, to control the allocation of their preferences and to not vote for candidates they don’t support , we have a right to expect our political parties and parliamentarians to put democracy first.
COPS Database Forum: October 21st 2015
On October 21st 2015, the NSW Council for Civil Liberties in conjunction with the Law Society of New South Wales held a forum on the Computerised Operational Policing System (COPS) database.
The panel comprised Jackson Rogers, the NSW Council for Civil Liberties’ Convenor – Justice, Police & Mental Health Action Group (Chair); Camilla Pandolfini, Senior Solicitor at the Public Interest Advocacy Centre; David Porter, Senior Solicitor at the Redfern Legal Centre; and Chris Watson, barrister from Forbes Chambers.
The event was a great success, and discussion both within the panel and with the attending audience brought many issues to light about the functions and impacts of the COPS database including:
- Can a person access information held about them on the COPS Database?
- How do police make entries on the COPS database?
- Are COPS Database entries used in criminal trials?
- What about false entries in the Database?
- Is the COPS Database just proactive policing, and is that not a good thing
- What would be an appropriate oversight mechanism?
To read the full report and minutes of the event, please follow the links below. If you are interested in this forum, or others like it, subscribe to our newsletter for more information on upcoming events, become a supporter and tell us what you think, or join NSWCCL and help support the fight for civil liberties!
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 2nd 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.Read more
The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 has not yet been approved by parliament. The debate on the Bill is scheduled to resume next week. As Labor has indicated it will support the revised version of the Bill, it is almost certainly going to be approved quickly and probably without amendment.
As this is such a significant issue, the NSW, Victorian, Queensland and South Australian Councils for Civil Liberties and the Australian Council for Civil Liberties have issued a joint public statement making one last call on the Australian Parliament to abandon this misguided Bill.Read more
NSWCCL has issued a media release opposing the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.
We recognise that the amended Bill is significantly improved and less dangerous than the initial extremely flawed 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. CCL argues the Bill should not be passed by Parliament.
Should the Bill proceed, CCL opposes the inclusion of the retrospectivity provision- even though it is limited to a very small number of people. It is a breach of a fundamental rule of law and natural justice principle. Retrospective application of punitive legislation is never acceptable.
NSWCCL welcomes the inclusion of a minimum age for persons caught by the Bill’s provisions. However, that minimum age should be 18 not 14 as is proposed for conduct related provisions. We welcome the removal of the provision allowing children to have their citizenship revoked if a parent had their citizenship revoked.
We urge the membership of the influential PJCIS which is to be given an expanded oversight role in relation to the operation of this legislation, be amended to be more fully representative of the Parliament.