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 GroupRead more
Welcome to the May 2017 issue of the NSWCCL Newsletter
In this issue:
National issues | Citizenship and Australian Values | Migration Act changes | A national integrity commission? | No access to telecommunications data in civil proceedings
NSW Issues | Decriminalisation of abortion in NSW | Revenge Porn Bill
CCL Issues | Join our new Submissions group | Join an Action GroupRead more
The Minister for Immigration and Border Protection, Peter Dutton, recently set a deadline for asylum seekers living in Australia to make their applications for protection. There about 7,500 people affected. Each adult has to fill in a complex 41 page form, and to fill in a 25 page form for each of their children, babies and all.
Asylum seekers have only one chance to apply for protection, and mistakes on their forms will lead to some being sent back to the dangers from which they have fled. Any inconsistencies, for example with what they said when they arrived in Australia, can be fatal.
Mr. Dutton is not providing the legal assistance essential to ensure that the forms are completed appropriately, nor does the government provide the interpreter services that are required. Volunteer organisations and lawyers acting pro bono do not have a hope of completing the work in time.
We are asking you to write to your member of parliament, to a senator, and to the minister, asking them to remove this deadline, and request that legal and interpreter help is funded by the government.
Could you please let us know if you are in communication with any members of parliament on this issue.
Martin Bibby, Convenor, CCL Asylum Seekers Action Group
We have been working with Amnesty International on a campaign to generate support for a NSW Bill of Rights. Victoria has one. The ACT has one. Queensland is getting one. It is time we had a human rights act in New South Wales. There have been two previous attempts to introduce a human rights act in New South Wales. The last attempt was over 10 years ago.
It is time to try again. Go to humanrightsfornsw to find out more.
In a surprising -and disappointing- intervention Minister Dutton has written to the Muslim Legal Network (MLN) querying the intention behind a section of their recently launched guide to anti-terrorism laws: ASIO, the Police and You.
The clear implication from the Minister was that the MLN were intentionally providing guidance to assist persons with terrorist or related criminal intentions to avoid detection by the Australian Border Force or AFP.
The extraordinary thing about this totally unwarranted distortion of the clear intentions of the guide (and its three earlier editions since 2004) was that the specific section cited as disturbing by the Minister was closely modelled on advice provided by a NSW Regional Coordinator of the Australian Border Force and their own official fact sheet "Border Advice for Hajj Traveller" issued in 2015.
As anyone reading this document would know the intentions behind the publication are totally constructive and positive.
This guide was produced for the same reason the three earlier editions were: to provide the community with a clear and understandable description of these laws and the rights and responsibilities of citizens in relation to them. Surely that is a positive!
The MLN has replied to the Minister and circulated a media statement repudiating his sinister interpretation of the guide. Nonetheless, they will slightly amend the wording to more strongly emphasise their positive intention.
NSWCCL considers the Minister's distorted interpretation to be deeply disturbing. We hope it does not signal an unwarranted and biased focus on this community guide to C-T laws because it was produced by a Muslim legal network.
We commend this 4th edition of ASIO, the Police and You. It provides a much needed service to the community - and we are very pleased that NSWCCL has contributed to all of the editions since 2004.
Dr Lesley Lynch
The push for abortion law reform in NSW takes another step tomorrow (Thursday 11/05/17). The Legislative Council will debate and vote on the Abortion Law Reform Bill introduced by Greens MLC Mehreen Faruqi. ALP members will have a conscience vote- and there is just a chance that it might get passed in the Council.
This would be a significant step in NSW –even though it is unlikely that it will get majority support in the current lower house.
NSWCCL has publicly supported the Bill. Yesterday we wrote to all members of the NSW Parliament urging them to give this Bill proper and positive consideration and to support its passage through Parliament so that matters relating to abortion in NSW are treated primarily as a health rather than a criminal matter.
If that should fail, we have urged progressive members of Parliament to come together in a cross-party alliance and build the necessary support for decriminalisation of abortion asap.
As an interim fall-back action, we urge MPs to immediately pass the Safe Access to Reproductive Health Clinics Bill introduced by the ALP MLC Penny Sharpe.
Demonstration in support
GetUp is holding a public demonstration outside Parliament tomorrow morning. NSWCCL members will join that demonstration. Supporters of abortion reform are invited to join us. Macquarie Street - outside Parliament House - 9am Thursday 11th May.
Also: text, email or ring your local member and members of the Legislative Council. Sign the GetUp petition.
On Wednesday last week (22/3/170) the AG George Brandis introduced the Human Rights Legislation Amendment Bill 2017 into the Senate with the intention of its being considered very quickly. It immediately generated a wave of community opposition – especially from ethnic/multicultural community groups.
On Thursday, the Bill was referred to the Legislative and Constitutional Affairs Committee for a ridiculously rushed ‘review’ with the Committee having to report by the following Tuesday (28/3/17).
This was a provocative time frame, effectively barring the community from any meaningful input into assessing the implications of the proposed changes on the ambit and operation of the Act.
NSWCCL strongly opposes the proposed amendments in this Bill which will seriously and unnecessarily weaken protections against race hate speech currently provided by s18(C ) of the Act.
Weakening s18(C )
While the Bill does not accede to the demands of the extreme opponents of the Act to repeal s18(C ), it does include amendments that will significantly reduce the protections provided by the section:
- the removal of the words ‘offend, insult and humiliate’ and their replacement with ‘harass and
- the replacement of the current objective test of the effects of alleged race hate speech (the standards of a ‘reasonable member of the relevant group’) with the standards of a ‘member of the Australian community’.
The PM and the AG assert these amendments ‘strengthen’ the Act. This is an ambiguous description. They certainly do not strengthen the protection against race hate speech currently provided by the Act. They will narrow and weaken these protections and create uncertainty as to what speech will be now be unlawful or permitted. There will be a lengthy period before a clear and settled judicial interpretation is established.
The existing standard of a ‘reasonable member of the relevant group’ as the basis for the objective test of the alleged offence is an appropriate standard for an offence that is experienced by particular groups and is particularly important in avoiding bias when the complainant is from a particularly disadvantaged or unpopular group. NSWCCL opposes the amendment to broaden this to a member of 'the Australian community'.
In the current highly charged political context relating to asylum seekers, refugees, and multiculturalism and race relations these are dangerous amendments.
The free speech justification
The Government says it wants to protect free speech – but has not been able to provide an example of the kind of ‘free speech’ that will be protected by these changes that is not already protected either by the exceptions specified in s18(D ) or by the well-established case law interpretation of s18(C ) requiring the alleged act to have ‘profound and serious effects not to be likened to mere slights’.
The most depressing aspect of the torrid campaign against s18(C ) and the AHRC (and its President) by a small section of the community and the media has been the way in which the facts of these cases – and the earlier Bolt case – have been seriously distorted to create the false impression that s18(C ) and the AHRC together impose a draconian prohibition on free speech.
Notwithstanding all the outrage surrounding them, the QUT case was dismissed and the Bill Leak cartoon – if the complaint had not been withdrawn- was almost certainly unlikely to be upheld as unlawful under the current Act.
NSWCCL agrees with those who warn that the removal of these offences from s18(C) at this point in time will send a clear message that it is now acceptable ‘to offend, insult and humiliate’ people on the grounds of their race, colour, nationality or ethnicity. Such an outcome will generate much hurt and tension amongst persons subject to this kind of speech and may well provide unintended impetus for the growth of racism and prejudice in Australia - especially against our Muslim community.
NSW CCL position
In our submission to the Joint Parliamentary HR Committee we recommended removing ‘offend and insult’ and replacing it with ‘vilify’- not because the current words inappropriately restricted free speech in the operation of the Act, but because it is generally preferable that the Act clearly communicate the judicial interpretation of the offence.
‘Vilification’ includes offending and insulting, but suggests they need to be of a high level and serious, and not trivial, nature – and would thus bring the language of the Act into line with the operational judicial interpretation. It would not weaken the Act’s protection against racist speech but would help clarify current confusion as to what is, and isn’t, unlawful.
We were cautious in so recommending because of the possible unintended consequences of repealing long-standing categories of race hate speech in a politically toxic environment – and had previously argued that S18(C ) should be left unchanged.
The HR Committee could not make a specific recommendation on s18(C). This should have signalled to the Government that the wisest course would be to leave it alone. However by proposing to remove ‘offend, insult and humiliate’ and replace them with ‘harrass’ the Government has chosen a more provocative, unacceptable path.
Given this and the ongoing toxicity and misinformation of the public debate NSWCCL reaffirms its earlier position- leave s18(C ) alone.
The Bill also proposes numbers of amendments to the Australian Human Rights Commission Act 1986 dealing with the Commission’s procedures, its oversight and the role of the President.
NSWCCL considers the broad processes of the AHRC to have been, for over 20 years, highly effective in providing low cost access to a complaints conciliation process which has successfully resolved the large majority of valid complaints relating to race discrimination.
Nonetheless many of these amendments appear to be a sensible tightening up of procedures and have broad support- including from the AHRC.
NSWCCL has not had time to carefully consider the implications of all these procedural amendments, but we do reiterate our general concern that some of them may undermine the current accessibility of the AHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld – become a barrier.
It is clearly important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint.
The President of the AHRC has expressed particular concern in relation to a number of the amendments and understands the Government may address some of her concerns in the final version of the Bill. When giving evidence on the Bill on Friday the President expressed ongoing concern about numbers of procedural amendments that the Government did not appear willing to change. As it is possible the procedural amendments may proceed even if the amendments to s18(C ) are rejected by the Senate – it is to be hoped the Government can be persuaded to address the AHRC’s advice on the likely consequences of these amendments.
The Senates role
The Bill is scheduled to return to the Senate today. A wise Government would be withdrawing the s18 (C ) amendments. If not NSWCCL is hopeful that the Senate fulfils its legislative review functions and rejects these amendments in toto.
Dr Lesley Lynch
The right to protection against race hate speech
The Freedom of Speech in Australia Report (28th January 2017) will bring no joy to those urging wholesale repeal or major weakening of Part IIA of the Racial Discrimination Act which prohibits racially motivated hate speech.
At the end of another (unnecessary and rushed) review process, which attracted 11460 responses, the Parliamentary Human Rights Committee was unable to make a recommendation to the Government on this core provision. Instead it restricted itself to listing 6 options that had the support of at least one Committee member. (R3). Neither abolition nor major weakening of the provision appears in this list of options. Not one Committee member supported an extreme option.
The Report focusses on positive options that do not have as their intent the weakening of the provision’s vitally important protection against race hate speech: whether or not it is best to leave the provision as it is on the grounds that case law interpretation of what it means is well established and the legislation is working well – or to tweak the provision by various proposed amendments to make explicit in the legislation these judicial interpretations on the basis that it is a good principle that the meaning of laws be clear and accessible.
Nothing new here – these issues have been canvassed many times including in the last review in 2014.
But it is a great relief that the extreme views of those who demand repeal or major watering down of the provision have not been given any support in the Committee’s recommendations.
NSWCCL also welcomes the separate strong statements in the Report from the ALP and the Greens members opposing any change to this core provision.
The AHRC administrative processes
In response to the controversy generated by three recent cases and repeated attacks by the Government and others on the AHRC and its President, the Committee was also tasked with the review of the Commission’s handling of complaints and its general procedures - with particular reference to the alleged soliciting of complaints. Most of the Committee's recommendations (19 out of 22) relate to this broad area.
Given the ferocity and persistence of attacks by senior Government members and some sections of the media on the AHRC and its President, NSWCCL was concerned that the review could be used to seriously undermine the President and the organisation. This has not been the outcome .
The evidence from many respected and qualified sources discussed in the Report essentially disposes of the public allegations of gross incompetence, unfairness, soliciting etc by the Commission and establishes that much of the commentary on the three recent cases was seriously ill-informed.
Nonetheless, the Committee has made numbers of recommendations relating to the AHRC procedures, its oversight and the role of the President. Many of these are a sensible tightening up of procedures and are either supported by the AHRC or not likely to be opposed by it. (For example the President has previously requested an amendment that will allow the Commission to terminate complaints not likely to succeed quickly. R 12).
Some recommendations seem redundant and some unnecessary but are not likely to be harmful- beyond the fact that they will consume resources. It may be that the Committee is proposing these additional checks and safeguards to provide public confidence that the Commission will be operating fairly and effectively.
If they protect the AHRC and its President from the kinds of unwarranted political attacks we have seen over the last two years - they will have served a good purpose.
NSWCCL is however concerned about some of the recommendations because of their potential to undermine the current accessibility of the ALHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld, become too big a barrier.
It is important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint.
A detailed analysis of the 22 recommendations will be posted shortly.
Dr Lesley Lynch
The annual Palm Sunday March this year will be a protest against the treatment of asylum seekers and refugees by Australia, both in the offshore detention centres of Nauru and Manus Island and in those on the Australian mainland. The CCL Committee is formally endorsing this protest and march, and urges you to join us.
Conditions for the refugees and asylum seekers dumped on Manus Island and Nauru remain intolerable. Manus has claimed the lives of Reza Barati, Hamid Khazaei, Kamil Hussain and Faysal Ishak Ahmed, while Omid Masoumali died on Nauru. There will be more deaths, if we do not act effectively.
There are also around 30,000 refugees within Australia seeking asylum. At present, most will at best receive temporary protection visas, leaving them in fear of forced return to danger, and unable to reunite with their families.
The proceedings will begin in Hyde Park North, at 2.00 p.m., on Palm Sunday, April 9. We look forward to seeing you there. Find out more about the rally on their Facebook event page.
Welcome to the February 2017 issue of the NSWCCL Newsletter
In this issue:
National issues | Defending s18C and the AHRC...again! | Asylum Seekers | Ratification of OPCAT | Civil Liberties perspective on a national integrity body | Access to telecommunications data in civil proceedings
NSW Issues | New police oversight body | Defending the right to protest | Know your Rights Booklet | Reorganisation of Justice portfolio
CCL Issues | 10th Anniversary Marsden Lecture | Submissions | Join an Action GroupRead more