There is widespread and well argued community and expert support for a national body to expose and prevent serious and systemic corruption within, and relating to, public administration (including the electoral process and parliament including MPs and their staff).
In April this year, 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 longstanding and increasingly urgent issue. (see earlier post)
At the time there was some optimism that at last effective action by the Parliament might be possible. While it was clear the Government would not soften its opposition, it did appear that Labor may shift its position and support some kind of national anti-corruption body. Significantly, the Select Committee was chaired by Senator Jacinta Collins from the ALP.
Unfortunately the recently released report of the Select Committee is somewhat of a disappointment in that its recommendations are equivocal.
Noting the number of recent inquiries into the issue, NSWCCL argued that the time for a decisive recommendation for immediate action on a national body had come:
‘We are concerned that if there is no firm recommendation for the establishment of a NIC from this Inquiry, the same lack of follow-through would again be a likely outcome. ‘
‘Given there appears to be greater openness for action on this issue in the current Parliament than was previously the case, a decisive recommendation may generate positive outcomes. This may not be so at a later time. ‘
Sadly, this argument did not prevail -though it was argued by numbers of key submissions. With the support of the ALP and coalition members, the majority report recommended a transitional approach with priority being given to the position the Government and its agencies had favoured - that the focus of action should be strengthening the existing national framework:
'The committee recommends that the Commonwealth government prioritises strengthening the national integrity framework in order to make it more coherent, comprehensible and accessible.' (Rec 1)
However, the Committee did not reject the strong arguments in support of an overarching anti-corruption body. In fact it found that the evidence was 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)
and therefore called for 'careful consideration' of such a body:
'The committee recommends that the Commonwealth government gives careful consideration to establishing a Commonwealth agency with broad scope and jurisdiction to address integrity and corruption matters.' (Rec 2)
NSWCCL argued that there was no incompatibility between deciding to establish a national body and ongoing analysis of and strengthening of the national integrity framework.
There was committee support for this stronger position from the NXT representative Senator Skye Kakoschke-Moore and Senator Hinch in added comments and from the Green's Senator Lee Rhianon in a dissenting report. All argued for an immediate start on the establishment of a national integrity body.
The Greens also agreed with the NSWCCL position that the new body should be empowered to conduct public inquiries where it is in the public interest to do so.
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
The body of the report makes for a strong argument for a swift move to a national body. The danger is that, given the equivocal recommendations, the moment for the necessary, decisive action will be lost in the chaotic and contentious parliamentary context.
We do not yet have a Government response to the Committee report - or from the Labor Party. However, it is not likely that the Government will decide to go beyond the Committee's recommendations and quite possible that it will ignore recommendation 2 - and possibly others - 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.
Dr Lesley Lynch
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.
Earlier this year, the Commonwealth Government sought to reform the federal CNS (after a finding by the ACT Supreme Court in R v CK  ACTSC 251, that existing federal legislation did not require ACT Police to notify an Aboriginal legal service when an Aboriginal person entered police custody). In amending federal CNS legislation, the Commonwealth consulted at length with the Australian Federal Police but failed to consult widely with Aboriginal legal services. Accordingly, the new 'model' Commonwealth CNS fails to provide Aboriginal people in custody with some of the key procedural rights to which they are entitled under the NSW CNS scheme (click below for further details relating to the proposed federal CNS). Ultimately, the CCL takes the view that the legislation in its unamended form will increase Aboriginal deaths in custody and rates of indigenous incarceration.
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 the new Bill. 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.
A copy of the submission may be found here.
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:
- creates a class of permanent residents who are denied recognition as citizens
- requires new citizens to accept arbitrarily defined "Australian values"
- confers unwarranted extraordinary powers on the Minister for Immigration
- requires that applicants for citizenship have a knowledge of English which is set at an unfairly high level.
The Senate committee is due to report on 4 September 2017.
Submission to the Legal and Constitutional Committee of the Senate concerning the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 - July 2017
The Bill would create a class of permanent residents who are denied recognition as citizens. This cannot be to the benefit of Australian society. The extended powers create a high risk that they will, by error or design, be subject to misuse and the creation of unfairness. No Minister should have such unfettered powers.
Civil penalties for non-consensual sharing of intimate images -“revenge porn”
In a recent submission to the Department of Communication & the Arts, NSWCCL made specific recommendations to a proposed Commonwealth government prohibition on non-consensual sharing of intimate images, colloquially referred to as “revenge porn”. We also addressed the question of appropriate civil penalties to deter, prevent and mitigate harm to victims, by individuals and content hosts, who breach the prohibition.
NSWCCL considers the non-consensual sharing of intimate images to be a privacy issue. It occurs when experiences, deemed private, are distributed without consent to the public, the victim’s family, work mates, employer or friends. Nonetheless, privacy requires a balance of interests, therefore defences of public interest and consent should be available to the perpetrator.
The prohibition proposed by the government would be modelled on the Enhancing Online Safety for Children Act 2015 (Cth) (EOSC Act). NSWCCL agrees that many of the provisions in the EOSC Act are suitable to deal with the non-consensual sharing of intimate images. The EOSC Act establishes the role for a Commissioner to oversee a cooperative social media service scheme. The Commissioner is also authorised to approach the Federal Court for civil penalties, enforceable undertakings and injunctions. A great benefit to complainants is that once a complaint proceeds, the Commissioner’s office takes over the process for removal of the material. NSWCCL agrees that the Commissioner should have a similar role to deal with non-consensually shared intimate images.Read more
CCL supports a statutory prohibition at Commonwealth level of the non-consensual sharing of intimate images. Harm, humiliation and harassment of victims, through the actual or threat of non-consensual sharing of such images, has led to suicide in some cases.
Submission to The Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 - June 2017
a consequence of the proposed legislation is that Aboriginal people will forego access to legal advice and/or a prisoner’s friend in custody. Access to fair trial rights such as the right to silence and the privilege against self-incrimination will be severely restricted, with the effect of unfairly incriminating Aboriginal people. Such a law will almost certainly increase the over-representation of Aboriginal people in prison.
NSWCCL has formally argued its strong support for a national anti-corruption agency in Australia.
We put our views in a submission to the current Senate Select Committee Inquiry on a National Integrity Commission (NIC) which continues the work of the 2016 Inquiry on the same topic: i.e. should Australia have a national anti-corruption body like the NSW ICAC and similar bodies in other states?
As a civil liberties organisation NSWCCL has previously opposed anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. We have cautiously shifted our position in response to the growing threat that increasingly complex forms of corruption pose to the public good in Australia: undermining the integrity of our political system, distorting the policy making process, diverting resources from public good objectives and generally undermining public trust in our political class, governing institutions and public administration.
If not more effectively checked, corruption poses a threat to democratic values and processes–including individual rights and liberties. From a civil liberties perspective, the balance between greater public good and greater public harm has shifted. In our view the Government's claim that its current 'multi-agency' approach is effective is demonstrably wrong.
If the public interest is to be protected against the corrosive effects of serious and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers- albeit with proper constraints and safeguards- is necessary and proportionate.
NSWCCL's support is absolutely dependent on strong constraints and safeguards that establish the optimal balance between individual rights and the effectiveness of the NIC in exposing corruption for the public good. Getting this balance right has been well traversed in NSW since ICAC's establishment in 1988 and subsequently in other states as the operation of the state anti-corruption bodies has come under much scrutiny and review. The Select Committee has a wealth of state level experience on which to develop its recommendations.
Transparency and public hearings
Central to our support for a NIC was that it have the power to hold public hearings of its investigations. This will be one of the most controversial issues to be determined- if the Committee recommends the establishment of a NIC.
There is a good reason for this level of controversy. There is a serious tension between the potential for unfair reputational damage for individuals being publicly investigated without the protection of a fair trial before a court - versus the undoubted public good that flows in many ways from open investigation and exposure of corruption in these hearings.
NSWCCL considers that ICAC's use of public hearings has overwhelmingly benefited the public good. It has also provided proper transparency to ICAC's investigations which, by allowing public scrutiny of part of ICAC’s operations, provides an important dimension of oversight of the agency. It has also been hugely important in exposing the level and nature of corruption in NSW which is a positive in itself- but also generates much needed pressure on Governments to take appropriate anti-corruption action.
The public hearings, in so far as they have built considerable community support for ICAC, also provide some level of protection from inappropriately motivated Government interventions around ICAC’s powers.
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.
It is from a public good perspective that NSWCCL supports the establishment of a broad based National Integrity Commission (NIC) as necessary for stronger and more effective anti-corruption action at the national level.