The NSW Council for Civil Liberties welcomes the opportunity to make a submission to the NSW Parliament Standing Committee on Social Issues inquiry into the Reproductive Health Care Reform Bill 2019.
The passage of the Reproductive Health Care Reform Bill 2019 through the NSW Legislative Assembly with a vote of 59 to 31 is a long awaited, historic moment for NSW women and the NSW Parliament. We are hopeful this will be followed by the its passage through the Legislative Council without amendment leading to the removal of abortion from the criminal law in NSW.
The PJCIS is reviewing the legislation that established the excessive mandatory data retention regime in 2015.
This review is happening at a timely moment as the Australian community ponders the implications of the extraordinary AFP raids on the ABC and a News Limited journalist a few weeks ago. We were not surprised at the AFP raids on the ABC and other journalists. These intimidatory raids are an inevitable consequence of Australia's large expanding suite of surveillance and secrecy laws.
The mass data collection regime which is retained to allow access by intelligence and police officers is an important element of these laws and in itself poses a clear and major threat to journalists and whistle-blowers.
Not surprisingly it was hugely controversial legislation and generated widespread, vehement opposition from civil liberties/human rights groups, journalists and media organisations, privacy and IT groups and many others.
NSWCCL joined with other councils for civil liberties to oppose the Bill. We put in a Joint CCLs submission to the PJCIS and when it recommended an amended version of the Bill be passed by Parliament, we wrote to all Senators – as the last chance forum - urging them to abandon this indiscriminate and excessive collection of all Australian residents data and replace it with a less intrusive regime which targets only suspects.
While we failed to block the passage of the legislation, some concessions were achieved – including a ‘fix’ to protect journalists through a special Journalist Information Warrant and a review of the regime after three years. This is the review year.
Joint CCLs current position
We maintain our strong opposition to the legislation as disproportionate and incompatible with a healthy democracy. In our new submission we have again argued it should be repealed or significantly amended.
We are hopeful that some improvements to the legislation will result from this review, especially much needed safeguards - such as warrant approval for access to the retained telecommunications data. It is not likely that the PJCIS will recommend, or the Government approve repeal of the legislation.
The CCLs argue that the mandatory data retention regime is but one element of many excessive provisions in Australia’s uniquely large body of national security and counter-terrorism legislation. It is crucial for there to be a review of the cumulative chilling and intimidatory impact of the Government's expanded surveillance powers and secrecy offences relating to Government activity.
In reaction to public and media outrage the Government has now established a separate inquiry into the ‘impact of the exercise of law enforcement and intelligence powers on the freedom of the press’ to be conducted by the PJCIS.
We will be making a submission to this review – and arguing that that the PJCIS is not the appropriate Committee to conduct this inquiry as it has supported all the surveillance and secrecy legislation causing the problem.
The Productivity Commission is currently conducting an inquiry into mental health. The NSW Council for Civil Liberties (CCL) submission to this inquiry is now online.
Our submission focuses on two issues. First, it addresses features of the justice system, and Aboriginal people with disabilities. It then turns to considering the social security systems, and how these contribute to mental health issues in Australia.Read more
Two needed bills abandoned - one flawed and reckless bill waved though – a sad day in the Australian Parliament.
On Thursday, the last chaotic day of the Parliamentary session, the Prime Minister declared he would do all in his power to thwart the majority will of parliament.
His stated motive was to stop Parliament from passing legislation requiring the transfer of refugee children in need of medical care from Nauru to Australia for treatment. His deeper motive was to avoid his Government suffering a Parliamentary defeat on substantive legislation.
He succeeded by filibustering in the Senate and when the Bill was eventually passed by a majority of senators, by closing down the House of Representatives so the Bill could not be considered there.
This was shameful – both in process and outcome.
Also a casualty was the promised legislation to protect GLBTQI students from discrimination in private schools. This was both deeply disappointing and a breach of the Prime Minister’s commitment to act on this issue before Christmas.
Astonishingly the Government was also prepared to sacrifice its 'encryption' legislation that it had repeatedly insisted was so urgent the PJCIS had to abort its review process so the public could be better protected from terrorist incidents over Christmas.
The Labor Opposition then took the extraordinary decision to wave through the 'encryption' Bill without moving any of its own tabled amendments - in full knowledge of the many problems that remained in the Bill.
Its motive was to avoid being wedged on a national security issue. The outcome is that Australia has another flawed and disproportionate counter-terrorism law.
In relation to the Amendment, it is submitted that: Avenues to commence actions in the Federal Court should remain open; The Federal Court is more suitable for hearing class actions than the Federal Circuit Court; The Federal Court is more suited to hearing significant migration appeals; The amendment is likely to affect human rights; There is concern about the complexity of the Migration Act provisions
NSWCCL worked with other councils for civil liberties through January and February to respond to the large, complex and alarming Espionage and Foreign Intervention Bill 2017 and the related Electoral Funding and Disclosure Reform Bill 2017.
These Bills are part of a major package of proposed legislation relating to national security and foreign intervention which also included three other bills: the Foreign Influence Transparency Scheme Bill 2017, the Security of Critical Infrastructure Bill 2017 and the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017.
These Bills encompassed much beyond foreign intervention and national security. They also encompass an extraordinary multi-faceted attack on civil society’s right to participate in public political discourse.
This attack included a massive expansion of national secrecy laws capturing not just public officials but also any person who makes an unauthorized disclosure of information covered by these laws. Journalists rightly protested that the secrecy laws effectively criminalised every phase of journalists work. Charities and independent advocacy bodies like GetUp were targeted so as to undermine their participation in public political discourse. Many of the offences carry very serious penalties – in the case of general secrecy offences more than doubling current penalties.
The PM rightly described this package as ‘the most important overhaul of our counterintelligence legislative framework since the 1970s’. It was therefore a disgrace that we were only given a few weeks to comment on them. Strong protests from civil society groups eventually gained an extension into mid/late February.
Few organisations were able to respond to all the Bills in this timeframe. NSWCCL in conjunction with the Joint CCLs prepared submissions on the large and important Espionage and Foreign Intervention Bill 2017 and the Electoral Funding and Disclosure Reform Bill. We failed to get in a submission on the equally alarming Foreign Influence Transparency Scheme Bill 2017.
The reaction from civil society and the media – and the Law Council of Australia (LCA) - has been ferocious. The Attorney-General Christian Porter responded with a package of amendments to alleviate the impact of the secrecy offences on journalists.
This was a smart and positive move by the AG. His proposed amendments to his own Bill were in line with recommendations made by civil society and the LCA – however they are a long way from solving the very problems with these Bills.
The Parliamentary Committee on intelligence and security will report on the most significant of these Bills in April. In the interim NSWCCL will do what it can to persuade Parliament not to pass these Bills - and certainly not in their current form.
Dr Lesley Lynch
Vice-President NSWCCLRead more
Supplementary Submission relating to AG’s amendments to National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 - March 2018
Having examined the AG’s amendments, the CCLs maintain their initial view that they are significant steps in the right direction and improve some of the most dangerous aspects of the Bill. However, we also maintain our view that the problems with the secrecy offences go beyond the issues identified by the AG
NSWCCL recently joined with other CCLs to oppose the deeply disturbing Electoral Funding and Disclosure Reform Bill 2017.
This Bill will not deliver the reform to electoral funding that is urgently needed in Australia. It will however, deliver a devastating blow to civil society’s capacity to participate in political advocacy and to the broad freedom of political communication.
In addition, it proposes a clumsy, heavy handed, costly and overly burdensome approach to regulation of the charity and political advocacy sectors.
The stated objective
The Bill is part of the Government’s highly controversial package of proposed ‘national security and foreign intervention laws’ which the Prime Minister says are in response to ‘grave warnings’ about ‘unprecedented threats’ on this front.
The CCLs support the much needed reform of election funding at the national level. We accept that foreign funding of political parties and related entities (and politicians) should not be allowed to distort our democratic electoral process. We strongly agree that the integrity of our electoral system is fundamental to both our democracy and national sovereignty and to the restoration of public confidence in our political process.
Foreign donations and influence are, however, not the most significant factors undermining the integrity and fairness of the electoral process in Australia and public confidence in the political system.
Moreover, if foreign intervention damaging to Australia’s interests and democracy is the target, it is puzzling that the Bill excludes foreign or global private corporations which exercise considerable influence over political parties, government policy and even electoral outcomes.
The CCLs doubt that the Bill will achieve its claimed objective of protecting against foreign intervention in the electoral process.
The hidden objectives
The CCLs main concern is that the ‘foreign intervention’ agenda is being used as cover to advance the Government’s long term attempt to deter major charities from public - and inextricably political - advocacy relating to their core constituency and to damage GetUp as an effective independent, progressive political advocacy body.
The blatant attack on GetUp is achieved by amending the definition of an 'associated entity' so as to capture it - and other independent civil society organisations involved in political advocacy.
This is done by conflating support for a policy with support for a political party also supporting that policy.
The Bill overrides the critical difference between an independent political advocacy organisation and a political party and its “associated entities”. The independent political entity takes advocacy positions on the basis of support for or opposition to policy matters - not on the basis of support for or opposition to political parties.
Based on recent history of GetUp’s progressive campaigning this proposal would almost certainly define GetUp as an ‘associated entity’ of the ALP (presuming the ALP maintains progressive policies..) and the Greens. As many point out- a rather bizarre outcome!
This would, as clearly intended, destroy GetUp’s reputation as an ‘independent’ progressive advocacy body. It is its independence from the major parties which is the basis for much of its support.
The CCLs consider this an outrageous manipulation of the law. If enacted, this proposal will do immense damage to the vibrancy of legitimate political debate in Australia. We note that if we met the expenditure threshold, this definition would capture all of the civil liberties organisations in Australia- notwithstanding our vehement non- partisan position re political parties.
The most serious onslaught on large charities and environment/conservation bodies rests on the extraordinarily broad and contorted definitions of ‘political activity’, ‘political purpose’ and ‘political campaigner’ in the Bill. The intersection of these expansive definitions will force most major charities to be registered as ‘political campaigners’.
Having forced them into an inappropriate political category, the Bill will impose cumbersome, unclear and costly administrative, recording and reporting arrangements in relation to foreign donations -which in most instances are marginal to their overall donations.
Charities defined as ‘third party entities’ will not be able to use foreign donations for ‘political’ work . This is not a marginal impact because, as defined, that prohibits them from using these funds for much of their core charity work.
Charities defined as ‘political campaigners’ will be banned from accepting foreign donations over $250. For those charities involved in advocacy work of global significance (eg. World Wildlife or Results International) this will have a devastating effect. Overall, no public good will be achieved by this.
Because it defines political activity and purpose so broadly, the Bill will create uncertainty and deep unease in the charity sector as to how its critical advocacy and education work will be defined.
The CCLs reject the underpinning assumption of these definitional manoeuvres by the Government. The CCLs consider that charities are entitled to participate in political debate flowing from their core work. We reject the narrow view that the role of charities is simply to attend to the immediate needs of those they seek to help.
The outraged response of the CEO of St Vincent’s de Paul Society to this Bill is justified:
The ostensible reason for introducing this Bill is to deal with the threat of foreign powers interfering with our elections. There is no evidence that our major charities are a vehicle for foreign powers.”
“Rather, this Bill is aimed at muting the voice of charities and others who have been critical of the government. It is dangerous legislation that is not only a threat to charities, but to democracy itself. (St Vincent de Paul website)
The Parliamentary Joint Standing Committee on Electoral Matters is reviewing the Bill and will report to Parliament by the end of March. The furore around the Bill has been huge - there are currently 148 submissions to the Committee and although I have not read them all, it is pretty certain that most will be opposed to the Bill's attack on charities and bodies such as GetUp.
The Government may have enough sense to reassess the outrageous and unwarranted proposals in the Bill.
The Leader of the Opposition has recently indicated that Labor will not support aspects of the Bill that stifle charities. We await detail but hope that this is opposition to more than one aspect of the constraints on charities and that it incorporates the attack on independent political advocacy bodies. The Greens have indicated strong opposition to the Bill.
The Government has indicated that the bills in its national security and foreign intervention package will be considered by Parliament in May. This Bill and the Espionage and Foreign Intervention Bill are the most controversial.
The CCLs will consider the recommendations of the Parliamentary Committees on these Bills when they become public and will continue to lobby the Opposition and members of Parliament to remove the many proposals which will be toxic for civil society political discourse and to find a less clumsy and burdensome way of disclosing or preventing foreign donations influencing the Australian electoral process.
On this front, the CCLs will continue to argue that the most effective way to achieve much needed reform of electoral funding and protection of the integrity of the electoral process is to:
- impose real-time, full disclosure of donations to political parties, associated entities, MPs and parliamentary candidates
- a lowering of the current donation disclosure threshold from $13500 to $2000 or thereabouts
- and urgently set up a widely based National Integrity Anti-Corruption Body.
Dr Lesley Lynch
NSWCCL Vice President
For more detailed information and our specific recommendations read the Joint CCLs' submission on the Bill.
Submission to PJCIS Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 - February 2018
NSWCCL worked with other councils for civil liberties through January and February to respond to the large, complex and alarming Espionage and Foreign Intervention Bill 2017 and the related Electoral Funding and Disclosure Reform Bill 2017. These Bills encompassed much beyond foreign intervention and national security. They also encompass an extraordinary multi-faceted attack on civil society’s right to participate in public political discourse.
Submission to New South Wales Law Reform Commission: Review of Guardianship Act 1987 - February 2018
We acknowledge that persons without decision-making abilities, or a limitation thereof, are vulnerable members of society, and such persons should be supported to make decisions concerning crucial aspects of their lives in order to be afforded an opportunity to live as comfortably and freely as others. Hence, insofar as the draft proposals of the New South Wales Law Reform Commission (‘NSWLRC’) on its review of the Guardianship Act 1987 (NSW) promote these individuals’ civil liberties in both the public and private domains, we support the proposed changes to the current arrangements existing under the Guardianship Act 1987 (NSW).Read more