Statements from NSWCCL on COVID-19 responses, links to up-to-date information and resources
For NSWCCL in the media visit THIS PAGE.
NSWCCL Statements on COVID-19
Actions and campaigns
NSWCCL recently signed on to support the #GameOver campaign by Craig Foster to get those held in offshore detention to safety, and endorsed the 'Open letter to Australian governments on COVID-19 and the criminal justice system’
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 - Signed 10:20pm 30th March
Australian Women Against Violence Alliance - COVID-19 resources for a range of at-risk and minority communities
Aboriginal Legal Service NSW ACT Free Our People - Petition: Stop COVID Aboriginal Deaths in Custody before it's too late
Asylum Seeker Resource Centre - Petition to protect people seeking asylum and refugees in COVID-19 crisis
March 30, 2020
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 and August 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.”
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.
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.” 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.
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
Contact: Jared Wilk Convenor, Civil Liberties and Human Rights Group
 See e.g. Pape v Commissioner of Taxation (2009) 238 CLR 1.
 Communist Party Case (1951) 83 CLR 1 .
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).Read more
March 24, 2020
COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 doesn’t do enough to protect human rights
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:
- 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.
- 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.
- 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.
- 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.
- 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.
NSWCCL contact: firstname.lastname@example.org 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.
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.
Like many others, NSWCCL scrambled to make a submission to the Commonwealth Attorney-General’s Department on the Religious Discrimination Exposure Draft Bill 2019 in early October. The Department says it received around 6000 submissions – of which it has to date only published c100.
The Government had wanted to have the Bill brought before this sitting of Parliament. But following very soon after a joint letter from most church leaders indicating their strong opposition to the Bill, the Attorney General has now indicated the Government will release an amended version of the Bill before the end of the year but postpone Parliamentary consideration of the issue until next year.Read more
NSWCCL has endorsed the Human Rights for NSW Alliance's submission to the Australian Human Rights Commission's national conversation on human rights in Australia - Free and Equal. The submission makes a number of recommendations and builds the case for a Human Rights Act in NSW.
NSWCCL is a founding member of Human Rights for NSW Alliance. Human Rights for NSW is an alliance of community, legal, rights-based and civil society organisations campaigning to ensure that the human rights of NSW citizens are expressed and guaranteed by law so we are all treated fairly, and with dignity, equality and respect.
This submission is endorsed by 33 member organisations, including Australian Lawyers for Human Rights, Human Rights Law Centre, Community Legal Centres NSW, Public Interest Advocacy Centre, Aboriginal Legal Service NSW/ACT and the NSW Bar Association.
Everyone in NSW deserves to be treated fairly and equally. NSWCCL supports the campaign for a Human Rights Act for NSW.