29 MARCH 2021                                    

PUBLIC STATEMENT

The NSW Council for Civil Liberties calls on the Federal Government to end the ban on leaving Australia and introduce clear and transparent rules for who gets to enter Australia.

This week marks a year since the imposition of both inward and outward travel bans. The government has adopted an authoritarian approach to the issue of incoming and outgoing travellers rather than improving the hotel quarantine system. This approach must now end.

The total lack of transparency around the basis for the granting and rejecting of applications is causing immense suffering in the community.

What is most galling is the ease with which rich and well-connected people seem to come and go as they please while ordinary people who have been separated from partners and immediate family for over a year receive rejection after rejection, with no reasons given, even when their applications meet all the stated criteria.

“It is quite shocking that we have a ban on exiting the country with no clear or compelling justification”, said Pauline Wright, President of the NSW Council for Civil Liberties. “Since the government has made it very difficult for people to return, and testing and quarantine measures remain in place on arrival, it is hard to understand the purpose of the exit ban, let alone its proportionality.”

“The terms of the Biosecurity Determination are vague, allowing enormous discretion, and the proof required of applicants is unclear. A lack of clarity increases the costs of mobility and adds unneeded stress to the lives of citizens who just want to go out of their country” said Ms Wright. “It is dismaying that the government is acting in a manner unprecedented in the democratic world in prohibiting people from leaving Australia. It displays a disregard for fundamental human rights and liberties.”

When it comes to entering the country, NSWCCL is aware of many people who qualify as immediate family members of Australians who have been rejected in applications to re-unite.

“The government must be far clearer in publicly explaining the basis for its decision-making and give people reasons,” said Ms Wright.

The government has had a year to produce a more open, transparent process. Enough is enough.

NSWCCL will watch with interest the challenge in the Federal Court of Australia to the exit ban regulations being brought by LibertyWorks. However, the result of that case is far from certain.

“This travel ban once again underscores the urgency of a federal charter of rights to better protect human rights and freedoms in Australia. Australia is unique in the western world for lacking federal legislative or constitutional human rights protections.”

For comment and for case studies of people with applications rejected willing to speak to media, please contact: NSWCCL President Pauline Wright on [email protected]

On 1st February 2021, NSWCCL Vice-President and Convenor of the Civil and Human Rights Action Group, Jared Wilk, appeared at the House Standing Committee on the Environment and Energy hearing on the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 and Climate Change (National Framework for Adaptation and Mitigation) (Consequential and Transitional Provisions) Bill 2020. You can read the NSWCCL submission of the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 HERE.

Here is NSWCCL's Opening Statement:

Good afternoon Chair, and members of the Committee. NSWCCL thanks the Committee for the invitation to appear today. I would like to acknowledge the Gadigal of the Eora Nation, the traditional custodians of the land on which I appear and pay my respects to the Elders both past and present.

The NSWCCL is a non-partisan, member based civil liberties and human rights organisation of long standing in NSW, founded in 1963. Since 2019, NSWCCL has resolved to play our part in the fight for climate justice. We recognise that anthropogenic climate change is a crucial civil liberties and human rights issue; an emergency that is curtailing the enjoyment of our rights today. This was starkly demonstrated by the 2019-20 bushfire season and has been repeatedly underscored by the expert Committees responsible for administering the key UN Human Rights Treaties. Warming beyond the level countenanced by the Paris Agreement – that is, preferably under 1.5 degrees, or a maximum of 2 degrees relative to pre-industrial levels – is likely to seriously infringe the fundamental rights of Australians, including, inter alia, the rights to life, property, enjoyment of culture, privacy, physical and mental health, and an adequate standard of living.

In 1896, Swedish scientist Svante Arrhenius concluded that human carbon dioxide emissions were substantial enough to cause climactic warming. An ExxonMobil scientist named James Black wrote an internal document in 1977 identifying a ‘general scientific agreement’ that humans are influencing the climate through carbon dioxide emissions. He wrote that humanity had a five to ten-year window until hard decisions need be taken. Yet in 2021, Australia still does not have a long-term emissions target consistent with real action on climate change and Australia’s international obligations under the Paris Agreement.

NSWCCL considers that the Bill in question would greatly assist the federal government in planning and coordinating mitigation and adaptation efforts in relation to climate change.

The Prime Minister was quoted, on January 23 of this year, as insisting that “you don’t get there [to net zero] by just having some commitment.” Unfortunately, this statement is both self-evident, and, as a repudiation of a statutory emissions reduction target, a non-sequitur. It does not follow from the fact that you don’t get there just with a target that no target should exist. Without a legislated commitment to reduce carbon emissions, the community lacks certainty and direction. The Bill under consideration is a structural reform, about fostering the policy stability and predictability to enable the investment which will bring about the possibility of zero net emissions. Stability and predictability are engendered not just by the 2050 target, but also the cyclical risk assessments, adaptation plans, emissions budgets and emissions reduction plans. Statutory obligations ensure that the government is accountable to the Parliament and the people. Statutory obligations signal that, while the Executive should still maintain flexibility in formulating and implementing climate policy, its discretion on a matter of such enormous consequence and with such a lengthy time horizon (well beyond the electoral cycle) must be controlled by Parliament, such that Executive actions are ultimately appropriate and adapted to reaching the Paris targets. The science-based advice and assessment of the new Climate Change Commission, at every stage in the statutory process, will prove indispensable to the achievement of high-quality policy and implementation. Importantly, the Bills will embed climate change considerations into federal government decision making and provide for some mandatory considerations and duties which may open inadequate and unlawful decision-making to judicial review, helping to ensure that Australia stays on track with respect to emissions reductions.

NSWCCL notes that multiple jurisdictions, including the UK, New Zealand, Sweden and Victoria have enacted similar legislation. From our research, it appears that the results in the UK, the first jurisdiction to have done so, have been positive. 

We do have some concerns about the Bill as drafted, of which I am happy to say more. Having now had the benefit of reading other submissions, we share some of their additional concerns as well, mostly relating to drafting issues and strengthening some elements of the Bill. However, for the reasons just mentioned, NSWCCL commends the Bill. 

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;

The report and further information about the inquiry is available on the committee's website.

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.[1] Our Prime Minister has recently refused to sign up to a net zero emissions target by 2050, despite increasing international isolation on the issue.[2]

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.[3]

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.[4] 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. 

Read NSWCCL's submission HERE.

[1] 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

[2] https://www.theguardian.com/environment/2020/nov/08/australia-warned-it-could-be-isolated-over-climate-inaction-after-joe-biden-victory.

[3] https://www.nswccl.org.au/policy_climate_justice_2019

[4] https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments/

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.[1]

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.

View submission

[1] 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>

10^th July 2020

PUBLIC STATEMENT

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 (8^th 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.

MEDIA ENQUIRES:

Michelle Falstein - Secretary, NSW Council for Civil Liberties

[email protected]

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.