NSWCCL is engaging with the fast moving covid-19 crisis on a number of fronts. The maintenance of core democratic processes to ensure adequate parliamentary scrutiny of the government’s responses to the crisis is a high priority for us and other civil society organisations. Our intention is not to hinder the Government’s capacity to act with necessary speed in the face of the unprecedented challenges of the pandemic. Rather, our aim is to give confidence to the community that government responses are being scrutinised for lawfulness, proportionality and fairness through transparent parliamentary processes. Without this confidence public trust in the Government over this period is likely to be weakened. 

Like many others, we have urged both the NSW and the Australian Governments to rethink their decisions to close down their parliaments over the next crucial months. The NSW Parliament is not scheduled to resume until 20th August and the Australian Parliament not until 11^th August. The Australian Parliament will sit for one day next Wednesday (8^th April) to approve the latest tranche of emergency spending.

We have also called for the establishment of a strong, bipartisan Senate Select Committee to scrutinise and report on the Government’s responses to the pandemic crisis. NSWCCL joined 7 other legal and civil society groups in a public call for such a committee to approved when the Parliament sits on Wednesday:

The Senate must establish the Select Senate Committee when it reconvenes, for potentially just one day, next Wednesday. A Select Senate Committee will provide a vital avenue to business, civil society groups and individuals to provide information to inform Government decision-making and feedback on the impact of those decisions, so that no one is left behind and no one is left in the dark. 

The NSW and New Zealand Governments have already established committees to oversee their Governments’ response to COVID-19.

A Select Senate Committee is just a part of the solution – Australians also need regular parliamentary processes to continue. It is vital that our Parliament sit, in a way that is safe, so it can make decisions rapidly as the pandemic unfolds. 

Participating groups in addition to NSWCCL were Human Rights Law Centre, Centre for Public Integrity, Amnesty International, National Aboriginal  and Torres Strait Islander Legal Services, People with Disability Australia, GRATA Fund and the Public Interest Advocacy Centre.

Other groups – including eminent ex judges -  have made similar calls for such a committee. 

At this point of time we are hopeful that the Senate will set up such a Committee next  Wednesday to provide the much-needed and focused scrutiny on Government actions over this extraordinarily challenging and scary period in Australia’s history.

Joint media statement 

April 2, 2020

No fresh air, no exercise, no access to mental health professionals - concerns about conditions for citizens held in enforced quarantine in Sydney

NSWCCL is greatly concerned about the experiences and conditions of those in enforced quarantine in NSW. The Council advocates for measures that, at the very least, maintain individuals access to daily fresh air for a certain period per day, and the ability to exercise. 

The Council acknowledges the importance of containment and understands the necessity to quarantine Australians returning from overseas. However, those who have committed no crime must be permitted the liberties afforded to free citizens in terms of access to fresh air, exercise, mental health professionals and general well-being. The conditions of quarantine should be compassionate and respectful rather than arbitrary.

NSWCCL has been contacted by a Victorian resident Stephen, and his wife, who are being held in quarantine in a Sydney Hotel.  The couple recently returned from Peru (31^st March), where they had already been held in lockdown there for 14 days after the Peru government imposed a state of emergency on 16 March.

Stephen contacted NSWCCL for assistance in ‘advocating for all those others in enforced quarantine in Sydney to ensure that our basic human rights and civil liberties are not being infringed in such an arbitrary and inhumane way.’

Stephen goes on to add, “I am not disputing the government’s right to force us into quarantine. What I am disputing is the conditions they have imposed on us.  We are not convicted criminals, we just had the misfortune to be overseas at the time the world went into crisis.”

Stephen informed the NSWCCL about the conditions under which they were being quarantined;

• We are literally locked in our room for 24 hours per day. We do not even have a key for our room.
• Police and army patrol our floor to ensure our compliance.
• We have no access to fresh air.  We are in a room on the 26^th floor with no window that can be opened.
• We have no ability to exercise.
• We are being denied access to alcohol.
• I have my wife with me, but many people are on their own – they are essentially in solitary confinement. 

“There are no support services for us. Nobody is checking on us as regards are physical or mental wellbeing,” Stephen said.

“Yesterday one of our friends in Sydney bought us some fruit, muesli, milk, tea and a couple of 6 packs of beer. The police stopped her leaving the alcohol.  Apparently those in quarantine are banned from having alcohol.”

The police quoted legislation in the NSW Government Gazette, Number 62, Saturday, 28 March 2020, apparently telling Stephen that the Police Commissioner has authority under clause 6(2) to determine what those in quarantine can/cannot eat and drink.

Today Stephen and his wife received a delivery of prescription medicine from a local pharmacist. The police opened and inspected the package before giving it to the recipients. Stephen said her felt this was ‘a gross breach of privacy and completely unwarranted – the package was clearly from a pharmacy and contained nothing but medicine’.

 Stephen and his wife are seeking:

• Access every day to fresh air for a minimum 30 minutes
• Access to an area we can exercise in for a minimum of 30 minutes each day
• Access to moderate amounts of alcohol (which of course we pay for ourselves)
• Daily checks on our health and mental wellbeing.

 “Surely this is not too much to ask for people who have committed no crimes and are otherwise complying with the draconian conditions imposed on us,” Stephen added.

 NSW Council for Civil Liberties - email: office@nswccl.org.au

March 30, 2020

PUBLIC STATEMENT

PROLONGED PARLIAMENTARY ADJOURNMENT UNACCEPTABLE AND DANGEROUS FOR DEMOCRACY

For the duration of the ongoing COVID-19 crisis, NSWCCL calls upon the Commonwealth and NSW Governments to accord full respect to the principles of parliamentary supremacy and responsible and representative government, which are fundamental features of Australia’s democratic and constitutional arrangements.

To this end, we urge the State and Commonwealth Governments to act through parliamentary processes and to continue to exercise legislative powers to the fullest practicable extent for the duration of this crisis. We urge them to reconsider parliamentary adjournment until September[1] and August[2] respectively. The NSW Parliament should also update its committee processes to enable NSW parliamentary committees to operate virtually, similarly to the way committees at the Commonwealth level are able to operate.

Adherence to these principles will ensure that Australians continue to enjoy full democracy, accountability and transparency from their leaders, and therefore maximum protection of their civil liberties during these challenging times.

The consequence of these parliamentary shutdowns, in the words of constitutional law expert Anne Twomey from the University of Sydney, “is that there will be very little parliamentary scrutiny of the government for nearly five months, a critical period during which extreme powers may be exercised.”[3]

The emergency circumstances in which we find ourselves render it difficult to overstate the potential for the dramatic overreach of unreviewable executive power. Decisions of the High Court since 2009 make this problem even more serious.[4]

This is not merely an academic point. Limiting the power of the executive to act without parliamentary scrutiny – that is, without the scrutiny of ‘the people’ – can seriously endanger our civil liberties. As Chief Justice Owen Dixon once wrote, “history and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected.”[5] Government must be responsible and be held responsible to the people through the people’s house insofar as possible.

Arguments to the effect that the country does not need ‘political infighting’ during a crisis should be rejected as a justification for closing down Parliament.  Parliament can sit without descending into a circus, and there has been a high degree of bipartisanship throughout the crisis so far as evidenced by the sittings on 23 March 2020. Those concerned about the legality of virtual sittings of the Commonwealth Parliament should be comforted by research showing that there are no serious legal barriers to this solution.[6]

Even the darkest days of the World Wars did not force Parliament to close for extended periods. NSWCCL believes Australia needs more democracy and accountability in these difficult months, not less.

Nicholas Cowdery AO QC

President, NSW Council for Civil Liberties

------------------

  PDF copy of statement 

Contact: Jared Wilk Convenor, Civil Liberties and Human Rights Group

Email: office@nswccl.org.au

Sent to:
Prime Minister Scott Morrison
Attorney General Christian Porter, Leader of the House
Leader Opposition Anthony Albanese
Shadow Attorney General Mark Dreyfus
President of the Senate Scott Ryan
Leader of the Government in the Senate Mathias Cormann
Leader of the Opposition in the Senate Penny Wong
Manager of Opposition Business in the House of Representatives Tony Bourke
Manager of Opposition Business in the Senate Katy Gallagher
NSW Premier Gladys Berejiklian
NSW Attorney General Mark Speakman
NSW Leader of the Opposition Jodi McKay

Copies to: All Federal MPs/Senators, all NSW MPs/MLCs

[1] https://www.dailytelegraph.com.au/news/breaking-news/nsw-parliament-works-to-pass-virus-bills/news-story/b5aa536f2dcef0abd32d946a3a5217b6

[2] https://www.sbs.com.au/news/federal-parliament-to-shut-until-august-as-coronavirus-causes-revised-schedule

[3] https://theconversation.com/a-virtual-australian-parliament-is-possible-and-may-be-needed-during-the-coronavirus-pandemic-134540

[4] See e.g. Pape v Commissioner of Taxation (2009) 238 CLR 1.

[5] Communist Party Case (1951) 83 CLR 1 [87].

[6] https://theconversation.com/a-virtual-australian-parliament-is-possible-and-may-be-needed-during-the-coronavirus-pandemic-134540

RESPECT@WORK: NATIONAL INQUIRY INTO SEXUAL HARASSMENT IN AUSTRALIAN WORKPLACES

In the past 5 years, 1 in 3 people has experienced sexual harassment at work. The 2018 National Survey highlighted that 2 in 5 women and 1 in 4 men have experienced this situation. Moreover, 53% of the victims are Aboriginals.

In June 2018, against the backdrop of the momentum of the #MeToo movement and recognition of the prevalence of, and immense harm caused by sexual harassment in Australian, and global, workplaces, the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, announced the National Inquiry into Sexual Harassment in Australian Workplaces (Inquiry).

March 24, 2020

MEDIA RELEASE

The NSW government has now passed the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020. The NSW Council for Civil Liberties (NSWCCL) appreciates the government’s rapid response in introducing emergency public health measures, at this time. The government has a broad range of public health and emergency response powers available under current legislation, for responding to public health emergencies. Although some elements of individual liberty and equity may be overridden to protect the wider community, when exercising those powers, the government must remain vigilant to avoid the grave human rights violations likely to affect the most vulnerable in our society. Those vulnerable include those who are unable, because of disability; poverty; their migrant status; or incarceration, to access emergency economic or health services. If unprecedented numbers of job losses ensue, as predicted, then the number of vulnerable in our society will swell.

It is for these reasons that the NSWCCL wishes to highlight a number of disturbing aspects of and omissions from the Bill:

1. Pre-recorded evidence in criminal trials does not give the opportunity for the defence to cross-examine the prosecution witness which is an essential component of criminal justice process. While acceptable, in some limited specific special circumstances, this provides for a much broader range of witnesses, if the class of persons is revised by regulation.
2. Evidence given from a remote location, by video link, would provide the same protections, in terms of disease, but would have the benefit of allowing cross-examination. If it is considered that this cannot be achieved, due to a lack of resources, that is not a sufficient reason, where the integrity of the justice system in achieving fair trials is at risk.
3. The possibility of a 12 month, or longer period, for the emergency measures to be determined by the Attorney-General, is not satisfactory.  There should a be a firm sunset date, so that parliamentary approval is required, for any extension.
4. The Bill invokes powers, in s747B of the Local Government Act, that allow legislation to be amended or repealed without going back to Parliament for consideration. Although emergency situations may be a valid exception to the principle, the NSWCCL generally opposes these as they produce less scrutiny and Parliamentary control over legislation. This is not considered a necessary measure in these circumstances.
5. The Bill should include strong whistleblower protection for health workers. In a health crisis of this kind, it is more important, than ever, to ensure that the public can have access to accurate information, in a timely way. Health workers are obviously in a position where they will often be first to know, and they should be protected from persecution, and prosecution, if they genuinely see a need for public disclosure of information.

Finally, NSWCCL has released a statement specifically addressing COVID-19 and prisons which can be accessed at the following link https://www.nswccl.org.au/statement_covid_19_and_prisons. 

ENDS

PDF version

NSWCCL contact: office@nswccl.com.au or Michelle Falstein 0412 980 540

About NSW Council for Civil Liberties

NSWCCL is one of Australia’s leading human rights and civil liberties organisations, founded in 1963. We are a non-political, non-religious and non-sectarian organisation that champions the rights of all to express their views and beliefs without suppression. We also listen to individual complaints and, through volunteer efforts; attempt to help members of the public with civil liberties problems. We prepare submissions to government, conduct court cases defending infringements of civil liberties, engage regularly in public debates, produce publications, and conduct many other activities.

Australia’s recent bushfire season of unprecedented scale, foreseen years ago by climate scientists as a likely result of a warming planet, lays bare the urgent need for climate justice. With this context in mind, NSWCCL wishes to affirm its support for the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (“the Bill”), to be introduced to Parliament by the independent MP for Warringah Zali Steggall.

Modelled on similar legislation passed by several developed nations, including the UK, Germany and France, the Bill attempts to provide policy certainty, transparency and accountability in relation to emissions reduction targets and climate adaptation. Amongst other innovations, the Bill:

• creates an independent Climate Change Commission (CCC) to help prepare emissions reduction plans and budgets, report on progress, conduct climate change risk assessments, and advise the government in relation to climate adaptation;
• sets a statutory emissions reduction target of zero net emissions by 2050 which cannot be varied without the consent of the CCC;
• institutes five-yearly whole-of-economy emissions budgets; and
• establishes a number of guiding principles which administrative decision-makers, as well as the CCC itself, must consider.

Despite the rain, NSWCCL Committee member, Lydia Shelly (pictured) spoke at Sydney's No Right to Discriminate: Religious Discrimination Bill protest rally this month. Lydia spoke to the CCL position on the bill, how religious groups have been co-opted, and the implications of the proposed bill.

CCL supports the need for a law against religious discrimination, but this Bill subverts key principles as to the ‘indivisibility and equality’ of human rights. It grossly over-privileges religious rights to the detriment of other rights. It seriously weakens existing anti-discrimination laws. It will cause harm to many groups and generate dissension and ill-will in our community.

It is CCL's view that the Government must withdraw this Bill and start again with a better and more cohesive process. More detail on CCL position HERE.

*Lydia Shelly is a lawyer and student in terrorism and security studies, and  a Committee Member, NSW Council for Civil Liberties.

 Here we share the speech Lydia gave at the rally.

NSWCCL has made a submission on the Government's second exposure draft of the Religious Discrimination Bill 2019. This follows our highly critical, but nonetheless, slightly hopeful submission on the first exposure draft of the Bill in October last year. We had been hopeful that the many problems civil liberties and human rights groups had identified in the Bill might be addressed, so that this second version would provide much needed protections against religious discrimination -particularly for minority religions - which are appropriately balanced with the rights of other groups in the Australian community. 

The draft Bill's up-front objectives are spot-on: to eliminate discrimination on the grounds of religious belief; to ensure everyone has the same rights to equality before the law and that people can make statements of religious belief- all subject to reasonable restrictions. Most significantly they affirm the 'indivisibility and universality of human rights and their equal status in international law.' (Clause 3) 

However the new draft  Bill fails to deliver on these objectives - it dangerously expands the over-privileging of religious rights in relation to other rights, weakens existing protections available for other groups under current state and federal anti-discrimination laws.  If it becomes law, this Bill will increase  discrimination against and harm for many groups in the Australian community. 

It seems clear that the objects of the draft Bill have been distorted by the insertion of numerous provisions for the sole reason of conceding to the demands of major religious groups for both exceptionally broad rights and protections from discrimination by others and an extraordinary range of exemptions and exceptions amounting to an extensive right to discriminate against others with legal impunity.

In summary, NSWCCL considers this second exposure draft Bill privileges religious rights to the detriment of other rights and weakens existing anti-discrimination laws much more seriously than did the first exposure draft. We are firmly of the belief that the Government must withdraw the Bill and start again with a better and more cohesive process. 

 NSWCCL submission on the second exposure draft RDB

Freedom of speech and protest are fundamental to a democratic political process. NSWCCL affirms support for urgent action, at the federal and state levels, to combat the severe, climate change threat.

On January 31st, we joined climate defenders at the Downing Centre before they headed into court. They were arrested in December at Kirribilli House while protesting in favour of climate action. Those arrested included Greens MP David Shoebridge. He was charged with disobeying a police direction to move on.

NSWCCL Secretary Michelle Falstein spoke to those gathered saying that citizens of this state should not fear the police when exercising their constitutional rights and that, change in the policy of intimidation by the NSW police force, is clearly required.

David Shoebridge told the crowd, "Most of us will be pleading not guilty today because we refuse to bow to police and government pressure - they cannot police their way out of the climate crisis". 

We will keep you updated as to the date fixed for hearing of the charges.