Senate committee calls on Parliament and government to remove barriers to oversight of emergency-related delegated legislation
The Senate Standing Committee for the Scrutiny of Delegated Legislation has today tabled the interim report of its ongoing inquiry into the exemption of delegated legislation from parliamentary oversight.
The interim report makes 18 recommendations to government and the Parliament to address systemic barriers to parliamentary oversight of delegated legislation made in times of emergency.
The NSW Council for Civil Liberties submission and hearings testimony are referenced a number of times in the Interim Report, including the following;
4.36 The New South Wales Council for Civil Liberties also submitted that it was inappropriate to exclude delegated legislation made under the Biosecurity Act from disallowance to separate the measures from political considerations, submitting that the significant civil liberties implications of the Biosecurity Act measures mean their 'formulation and implementation are unavoidably and deeply political questions. 'Taking the politics out' entirely can lead to unaccountable technocratic governance'.
6.34 The New South Wales Council for Civil Liberties agreed that limiting the duration of delegated legislation has an important role to play, particularly in emergency periods, noting that the notion of ‘emergency’ is itself temporally limited by definition. The Council further argued that:
By the end of 3 or even 6 months, the emergency has metamorphosed into a new normal. Therefore, it makes inherent sense that the duration of the emergency and the significant powers accompanying it are ‘sunset’.
6.37 Expanding on this point, the New South Wales Council for Civil Liberties noted that legislative instruments which are made pursuant to Henry VIII clauses should not be exempt from disallowance unless express repeal provisions are included on the face of the primary legislation. The Council expressed particular concern that the duration of instruments made under the Biosecurity Act has been extended on the basis of extensions to the declarations of a human biosecurity emergency, highlighting that 'the time of operation is renewable indefinitely'.
9 November 2020
NSWCCL warmly welcomes the introduction to Parliament of the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (“the Bill”) by the independent member for Warringah Zali Steggall.
We are living in a climate emergency. Calling the multifaceted and serious crises a warming planet is precipitating “global warming” or “climate change” no longer does justice to the urgency of our circumstances. As we gradually move out of one global emergency, the COVID-19 pandemic, we should reflect on the value of rapid, high-quality emergency governance in defeating large scale, complex problems facing our societies. We should ask why we have not seen similar quality governance in Australia with respect to the climate emergency. Sadly, Australia’s climate policy has been hopelessly inadequate for many years and out of line with the actions of many of our key allies and trading partners. Our Prime Minister has recently refused to sign up to a net zero emissions target by 2050, despite increasing international isolation on the issue.
At our 2019 Annual General Meeting, NSWCCL recognised, in line with a growing number of human rights bodies, that climate change is a central civil liberties and human rights issue.
Passage of Ms Steggall’s Bill would be a crucial first step in building political consensus and providing stability, transparency and parliamentary scrutiny in the area of climate policy, which will facilitate the introduction of more ambitious proposals by government. The Bill does not dictate any one climate policy to the government. As framework legislation, it recognises that the executive may require flexibility and choice in the formulation and implementation of climate policy. However, if passed, it would represent an expression of the elected Parliament’s intention to only permit the development of reasonable, science-based climate policy. As is abundantly clear from the science, if Australia is to reach its Paris target of limiting warming to 1.5°C and thus play its part in averting the worst consequences of climate change, our government’s policies and decision-making must conduce to the meeting of a target of zero net accounting emissions by around 2050. All States and Territories have zero net emissions by 2050 targets, as do many leading overseas jurisdictions.
NSWCCL stresses that this legislative model alone is insufficient to meet the exigencies of our climate emergency. Our governments can and should be doing more, including aiming for a target of 45% emissions reduction on 2010 levels by 2030, 100% renewable energy by 2030, not supporting any new coal and gas projects, and funding a just transition to a green economy.
Nevertheless, NSWCCL commends Ms Steggall’s Bill as a good start and will participate in the campaign to secure its passage.
To read NSWCCL’s views on the Bill in March of this year, please view our previous statement at: https://www.nswccl.org.au/climate_change_bill_2020.
For a summary of the Bill, click HERE.
 https://www.atse.org.au/news-and-events/article/emissions-targets-are-we-on-track/; https://www.theguardian.com/environment/2020/oct/31/net-zero-what-if-australia-misses-the-moment-on-climate-action; https://www.theguardian.com/environment/2020/nov/08/australia-warned-it-could-be-isolated-over-climate-inaction-after-joe-biden-victory
NSWCCL submission to the Joint Select Committee Inquiry into the Anti-Discrimination Amendment Bill 2020 - 22 August 2020
The NSW Council for Civil Liberties [NSWCCL] considers it is very important to respond in some detail to this Joint Select Committee’s inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 [the Bill].
The issues encompassed by this Bill – religious freedoms and protection from discrimination on the grounds of religion - are of great significance in a democracy such as ours. They are also extremely complex and potentially deeply contentious issues. Legislation on human rights must always be carefully considered and balanced, and this is especially so in relation to religious rights and protections. If all rights are not considered in a fair and balanced way the outcome is likely to be discriminatory and harmful to some groups and individuals and to over-privilege the rights of others.
** Dr Lesley Lynch, co-convenor of the NSWCCL Civil and Human Rights Action Group appeared at the first public hearing for the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill at 2pm on Friday 23rd October, 2020.
We represent a vast group of community and civil society partners and leaders in New South Wales (NSW) who place on the public record our strongest opposition to NSW One Nation’s Education Legislation Amendment (Parental Rights) Bill 2020. This legislation, introduced to the NSW Parliament by One Nation’s Mark Latham, aims to outlaw the teaching of gender diversity and the acknowledgement of trans and gender-diverse students and their families and seeks to strip professional accreditation from any teachers and school staff breaking such a law.
The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation (Committee) with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight (Inquiry).
NSWCCL commends the Committee’s resolve to meet regularly during the recent period of parliamentary adjournment to ensure its continued scrutiny of all delegated legislation, particularly disallowable executive-made COVID-19 instruments. There are significant constraints on the capacity of the Committee to scrutinise particular legislative instruments exempt from parliamentary disallowance, but it is nonetheless performing a very valuable role in flagging ‘framework’ issues.
The Australian government’s response to the COVID-19 crisis has been enabled by the provision of extraordinary powers to Executive Government and Government agencies. This has been achieved largely through the mechanism of determinations under the expansive human biosecurity provisions of the Biosecurity Act 2015 (Cth). As of 6 July 2020, there were 199 specific COVID-19 ‘instruments’ and, of greatest concern, at least 42 of these are not disallowable, denying the Committee the ability to scrutinise them.
The Committee is empowered to scrutinise delegated legislation subject to parliamentary oversight against its 12 technical scrutiny principles (Senate Standing Order 23). These principles include whether the legislation unduly trespasses on personal rights and liberties. However, many of the determinations exempt from parliamentary disallowance are having a significant impact on individual rights and liberties, effectively contain serious offences and impose obligations to do or desist from certain activities. As we understand it, the Committee has no power to scrutinise whether particular pieces of delegated legislation should in fact be disallowable under the current standing orders.
The NSWCCL submission makes 7 recommendations to the Standing Committee.
 Scrutiny of COVID-19 instruments, List of COVID-19 related delegated legislation, Parliament of Australia <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Scrutiny_of_COVID-19_instruments>
10th July 2020
NSWCCL has concerns regarding claims that a critically ill man from the New South Wales South Coast has twice been denied an exemption from undergoing hotel quarantine in Sydney, despite medical advice he self-isolate at home.
The ABC reported (8th July) that Stephen Evans, diagnosed with stage four oesophageal cancer in 2018, recently returned from Germany where he had a highly specialised lung procedure. NSW Health has twice refused Mr Evans’ request to self-isolate at home, stating that personal health circumstances must be balanced with ‘the requirement to implement the Public Health (COVID-19 Air Transportation Quarantine) Order 2020.’
The Orders allow for NSW Health and/or the Health Minister, to grant an exemption to permit self-isolation at home under strict conditions.
NSWCCL acknowledges the importance of adherence to the Public Health Orders relating to COVID-19 containment efforts. However, there must be an ability to protect the wider population, at the same time as catering for those in our community with particular medical needs and requirements. In the spirit of protecting the general public under the Order, we must not lose the capacity to protect individuals.
Mr Evans’ oncologist and another of his doctors have written letters in support of an exemption from hotel quarantine, outlining their patient’s specific conditions and requirements, including a customised bed and strict dietary requirements. The request specified that ‘Without doubt, it is in Stephen's medical interests to be self-isolating at his home… in order to be in proximity to his supports and local medical team, and to be distanced from others who may be at risk of COVID-19 infection.’
The doctors’ letters reference the medical benefits of Stephen being granted an exemption and their faith in his ability to fulfil requirements made of him, were he to be granted permission to serve the remainder of the compulsory quarantine period in home isolation.
In regard to granting exemptions, where circumstances permit, NSWCCL supports an individualised, compassionate approach, particularly in regard to someone such as Mr Evans, who is already suffering serious health complications and a medical condition that is not communicable to others.
NSWCCL supports urgent requests for further consideration to be given to Mr Evans’ circumstances and specialised medical needs. Mr Evans has a right to seek positive health outcomes in a way that doesn’t endanger others and a solution is available that satisfies the requests and advice from his doctors while protecting the broader community.
Michelle Falstein - Secretary, NSW Council for Civil Liberties
M: 0412 980 540
NSWCCL made a detailed submission to the Senate Select Committee on COVID-19 in June. We lobbied for the formation of this important Committee as a way of providing otherwise absent parliamentary scrutiny of the Government’s huge response to the COVID crisis in the disturbing absence of regular parliamentary sittings.
We are pleased that the Committee, which has wide terms of reference, began its work immediately on its formation both by calling for this Inquiry and initiating public hearings – in the first month largely with Government agencies and ministers. The chair of the Committee made some promising commitments in her opening statements for the first public hearing:
This committee is a key vehicle to provide accountability, transparency and scrutiny of the Australian government's response to the pandemic for the Australian people.
This is not your typical Senate committee. We will demand a lot of witnesses in terms of a cooperative approach that is based on working together in the national interest to ensure all aspects of our response are the best they can be. Political grandstanding will be kept to a minimum. (Senator Gallagher 23 April 2020)
There are already disturbing signs that some ministers and key agencies may not be as open in the provision of information to the Committee as is necessary if it is to fulfil its scrutiny and accountability roles.
Our submission focussed on 4 key areas:
- the fairness and inclusiveness of emergency support programs;
- the need to shape the Australian economy post-COVID towards the creation of a fairer, more just and environmentally sustainable society;
- ensuring the extraordinary powers given to ministers and agencies to restrict Australians’ normal freedoms and rights are necessary and proportionate for the protection of public health and safety, and that we have a process to ensure they will be repealed when no longer necessary;
- the enhanced imperative to put in place governance structures an to effectively scrutinise the integrity of the allocation of the vast public resources that will be expended in response to and in the aftermath of the COVID emergency.
* This submission will be published on the NSWCCL website after it has been posted to the Senate Select Committee's website.
In a joint statement seven legal and human rights groups have condemned the approach of many Australian governments to recent Black Lives Matter and refugee rights protests, stating it is inconsistent with our democratic rights and freedoms.
The legal right to protest is fundamental to our democracy. Protests hold governments to account and make our country better. While the powerful few are able to write cheques or call their friends in high places, protests are how the invisible or ignored can become seen and heard by government. Only after tireless, sustained protest did Aboriginal and Torres Strait Islander people win the right to vote, did LGBT+ people achieve marriage equality, and did unions secure the eight hour work day.
Right now, the right to protest is vital for minority groups and supporters who continue to rally against state violence and injustice. Historically, overturning injustice of this kind requires incredible public momentum and visibility, which can only be sustained through protest. Since colonisation, Aboriginal and Torres Strait Islander Peoples have fearlessly fought for an end to police violence, discriminatory laws and the structural racism that locks them out of justice. The pressure is building on governments here in Australia to finally act on what First Nations people have been calling on for decades: an end to Black deaths in custody and an end to police violence.
The Supreme Court of Victoria has found that the Victorian Government has prima facie breached their duty to take reasonable care for the health of a person behind bars during the COVID-19 pandemic.
The case, an urgent injunction brought by Fitzroy Legal Service and the Human Rights Law Centre, on behalf of a person in Port Phillip Prison with acute health needs, argued that people in prison are sitting ducks for COVID-19, and that it will only take one case to enter the prison for there to be an outbreak, which could not be stopped even if responsive measures are taken.
While the Court didn’t make any findings of fact given the case was heard as an interlocutory hearing, the Court did find that there was a prima facie case that the prison authorities breached their duty of care to safeguard the health of the person in prison, and that the Government must act compatibility with the Victorian Charter of Human Rights.
This is an excerpt from a news article originally published by the Human Rights Law Centre, 2 May 2020.
NSWCCL Statement to the 2020 ECOSOC High Level Segment for NGOs 26th April 2020
The New South Wales Council for Civil Liberties (NSWCCL) recognises that the human rights and civil liberties of all people cannot be fully realised unless, and until, the global community meets the targets set by the Sustainable Development Goals (SDGs). However we recognise that development, particularly economic, need not necessarily take place in a way that is human rights based.
In times of accelerated progress towards any goal, it is clear that states can sometimes all too quickly pursue acceleration at the expense of human rights and equality. This is not to say that acceleration is itself problematic. In line with the recommendations of the Inter-Governmental Panel on Climate Change, acceleration of sustainable development in relation to climate change (SDGS 7, 11- 15) is vital to prevent the most catastrophic climactic changes. Climate change will only entrench vulnerability and marginalisation. We strongly endorse rapid acceleration of the response to climate change, particularly within Australia.
We emphasise the importance of attaining progress towards meeting the SDG targets in a way that centres human rights obligations at the core of development. The United Nations Human Rights Council has resolved that attainment of the SDGs and implementation of human rights obligations by states should be ‘mutually reinforcing’, and a state should implement the SDGs consistently with their pre-existing human rights obligations (A/HRC/RES/37/24). This is also recognised in SDG 10 and SDG 16.
Turning to an example from Australia, the longstanding inequality between Indigenous and Non-Indigenous Australians is a deplorable stain on Australia’s history. The 2020 Closing the Gap report identifies that the child mortality rate for Indigenous Australians is slightly over double the child mortality rate for Non-Indigenous Australians (p. 15). Numeracy and literacy rates for Indigenous school students are well below national standards (p. 45). Whilst we acknowledge that some progress is being made, such progress is slow and does not comply with the spirit of the SDGs and should be accelerated alongside economic development.
To ensure that the crucial acceleration of progress responding to the SDG targets takes place in a way that advances human rights we call upon states to:
- Ensure that justice, integrity and accountability bodies within states are strengthened and properly resourced.
- Adopt domestic legislation which enshrines fundamental human rights and affords citizens with personal remedies to protect their rights.
- Ensure that the rights of marginalised and minority groups are given equal, if not greater, importance than the rights of others within society to remedy past injustices.
NSW Council for Civil Liberties Australia